1989 PLP 359 (MLD)

Qais Masood Rashidi for Appellant. Feroze Khan for Respondent: Date of hearing: 25th May, 1988. The respondent filed an application for ejectment of the appellant in respect of two rooms on the ground of personal requirement. It was pleaded that the respondent is carrying on his business of manufacturing confectionaries and sweets, on the top floor but due to old age and heart ailment he is unable to climb upstairs and therefore, he requires the disputed premises on the ground floor. The appellant denied the claim of the respondent and pleaded that the respondent is not carrying on any business and that the claim is not bona fide. The learned Controller by the impugned order granted the ejectment application. Mr. Rashidi the learned counsel for the appellant has contended that the bona fide claim for personal use has not been established on record. He has referred to the, entire evidence and documents produced before the Controller, to show that the bona fide requirement was not established. The respondent has claimed that from the year 1948 he has been carrying on business of manufacturing confectionary sweets and in that regard he has produced the licences, the notices, photographs and plastic and paper wrappers to show that he has been running the business. From the evidence, it is clear that the respondent has been carrying on business intermittently. The learned counsel has seriously contended that the documents produced by the respondent cannot be accepted in evidence as they are photo copies and not the original. Even if these documents are ignored the statement of the respondent has been consistent with the averments made in the application. The respondent has produced the plastic, and paper wrappers in which these sweets are wrapped and delivered to the customers. The entire trend of the cross‑examination of the appellant was that the responded used to obtain sugar quota from the relevant Authorities and was interested in selling it in black market and in fact did not utilise the same for manufacturing confectionaries. From these suggestions at least this much is admitted that he was obtaining quota of sugar from the Authorities. The inspection by the Controller has revealed that there were some machineries available for manufacturing confectionary sweets. The respondent has not filed any document regarding sale or the number of employees engaged but he has admitted that he does not maintain any such record. The pith and substance of the evidence is that he is carrying on business and using the top floor premises for his personal work, but due to old age he is unable to do so and requires the ground floor premises consisting of two rooms. The respondent is an old man and claims to be 72 years old. The appellant has suggested that in an earlier proceedings he had claimed to be 82 years of age. Be that as it may the fact remains that he is a sufficiently old man. He claims to be suffering from heart ailment in respect of which he has produced a medical certificate, but it has been challenged on the ground that it is a photocopy and the original has not been produced. There can be no dispute that the respondent is occupying two rooms on the top floor and is using them for his own business. Although the appellant has disputed the age of the respondent, it has not been alleged that his age is less than 72 years. Therefore, considering the age, and the little work which he is carrying the bona fide requirement of the respondent is established. The respondent was present in Court during arguments and I inquired whether he can carry on his business in one room on the ground floor. He replied in the affirmative and offered that he is prepared to exchange one room for the premises on the ground floor. Therefore, in my view the respondent's requirement is only in respect of one room. The appellant is maintaining a press which is installed in one room while the other room is used by him as his office. Therefore, considering the requirement of the respondent I partly allow the appeal and the ejectment is granted only in respect of room No. 1 in which the appellant is maintaining his office. The ejectment in respect of room No. 2 in which the appellant has installed his press is not allowed. The respondent has offered the appellant in exchange one room which he will vacate on the top floor. This offer will. be valid for a period of 15 days. If the appellant desires he can occupy that room in respect of which ejectment has been granted. After the expiry of 15 days this offer will lapse. The appeal is partly allowed. H.B.T./I‑65/K Appeal partly allowed.