1990CLC698 (PLP)

(1) Whether application is maintainable in law? (2) Whether the case premises is required by the applicant in good faith for occupation and use of her son? (3) What should the order be?

5. The respondent has examined her son/attorney Nisar Habib Khan (P.W.‑1), while the appellant has examined himself (D.W‑1).

6. On the assessment of evidence both oral as well as documentary, the learned Rent Controller decided all the issues against the appellant directing his ejectment from the demised premises.

7. With the assistance of learned counsel for parties T have gone through the record and after hearing them I see no reason to take a different view from the one taken by learned Rent Controller.

8. Nasir Habib Khan (P.W. 1) for whom the demised premises is required has testified about his needs in para Nos.8 to 10 of affidavit ‑in‑evidence. For the sake of convenience they are reproduced below:‑ "That the Deponent has all along wanted to start his own business and in order to do so went through training and acquainted himself with business work. For the said purpose he also joined various firms over the course of the past years. That I produce photocopies of certificates of satisfactory completion of training, marked A‑4 and A‑4/1 herewith. After the completion of this training the Deponent got registered a firm in the name and style of "FURTEX" with the Chief Controllers of Imports & Exports Karachi, a photo copy of which certificate I produce herewith marked A‑

5. A photo copy of the membership certificate of the Chamber of Commerce and Industries is produced herewith and marked A‑

6. A photo copy of the Certificate of the Bank is produced herewith and marked A‑

7. That neither the Applicant nor any member of her family owns any commercial property/premises anywhere in Pakistan. That the Applicant needs the dipute rented premises for the bona fide personal need of her eldest son, the Deponent, who is desperately in need of a show‑room for his business of Export‑Imports and also requires it as a shop for his local sales business. That the Applicant has no intention whatsoever of renting out this premises to any third party, the only reason why the Applicant wants this property to be vacated by the Opponent, is the personal need of her eldest son, the Deponent. That the premises in dispute was not let out to the Opponent after receiving from him any consideration as Pugree or Key money but was rented out strictly in terms of the agreement produced herewith."

9. Nothing has been brought out in the cross‑examination of Nasir Habib Khan (P.W‑1), which would shake his veracity or establish that the demised premises were not required for his personal need. The appellant has alleged mala fides against the respondent. As observed in Mushtaq Ahmad v. Mst Mumtaz Zohra Rizvi, reported in P L D 1978 Karachi 188, and Fazal Karim v. Muhammad Usman, reported in 1981 C L C 1393, the onus to prove mala fides shifts upon the tenant, if good faith of landlord is disputed. The appellant as his own witness (D.W‑1) has simply stated that the business premises in the area have acquired substantial PUGREE value, which prompted the responent to coin the ground of personal requirement. No evidence was, however, adduced to rebut oral as well as documentary evidence produced on behalf of respondent. In any event, the law provides for adequate safeguards to a tenant in case the landlady fails to occupy the premises after getting the same vacated on the ground of personal requirement.

10. The purpose for which the demised premises is needed was seriously assailed by learned counsel for appellant who has endeavoured to show that the respondent was bound to give necessary details of business and source of funds with a view to prove her good faith. Reliance is placed upon the case reported as Syed Anis‑ur‑Rehman v. Mst. Saira Bai (P L D 1985 Karachi 714). This judgment has been set aside by the Supreme Court of Pakistan in Civil Appeal No.119/K of 1980 (Mst. Saira Bai v. Syed Anis‑ur‑Rehman), decided on 24‑1‑1989‑‑1989 S C M R 1366. This controversy is now set at rest by the Supreme Court of Pakistan in the following words:‑ "It was next argued, as it was argued before the Controller and the High Court, by the learned counsel for the respondent that the appellant, in her application, has not stated the nature of the business for which the shop is required and in her deposition, she expressed her unawareness as to the nature of business which her son would carry on. However, her son, in his deposition, has stated that he would do paints business in the shop. Regarding the non‑mentioning the nature of the business in the application it may be observed that an applicant has to state in his application, the material facts i.e. facts which constitute cause of action. In a case of present nature the applicant has to state these facts which prima facie show that the requirement is according to law, and is made in good faith. This has been so stated in the application. It is not essential as it is not part of the cause of action to state the nature of business which the applicant intends to carry on. Take a case where the applicant states in the application that she requires the shop for her son for carrying on a particular business but later on pending hearing of the application or after eviction of the tenant, the applicant thinks that that business can no more suitably and profitably be carried on in the shop, the question might arise: could he change the nature of business or not? The choice of doing a particular business also depends on many other factors such as the nature of the locality or the nature of business being carried on in other shops in the neighbourhood. It also depends on the flow of customers and class of people residing in the area. Therefore, if there is any change in circumstances, the nature of business could also be changed. Accordingly, the answer would be that the applicant could change the nature of business with the change of circumstances because in law no restraint or bar is provided. Therefore, the mentioning of the nature of business was not a material fact or so essential that without it the application must fail. In any case, there is authority of this Court in the case of Mst. Toheed Khanum v. Muhammad Shamshad (1980 S C M R 593) wherein a similar point was raised and it was observed as follows: Again the High Court fell into an error when it placed undue reliance on the fact that the nature of the business was not stated in the application ....' Further, as mentioned here in before, it was unambiguously stated by the applicant that she erequires the shop, in good faith, for use and occupation of her son, and her son, in his deposition, has in clear terms, stated that he would carry on the business of paints in the shop. Therefore, this objection has no force and ought not have been given any weight by the High Court."

11. I now address myself to the main question, whether the respondent who is in possession of two residential units, out of which one is lying vacant can be denied to occupy the commercial premises situated on the ground floor only to accommodate the appellant who has been able to establish his business of furnishers and interior decorators. Admittedly all the five units situated on first, second and third floor of this building are residential ones. The extract of PT‑I which is on record (EX.A‑1/1) makes this position clear. The residential units would not be suitable for the type of business which Nasir Habib Khan (PW‑1) wants to carry out. The only fact that certain businesses are being carried out in the same vicinity in residential units is not going to change the position materially. The respondent being the owner of the building has got the choice and the tenant or the Rent Controller cannot force her to use residential unit for business purpose. As observed in Haji Mohammad Ibrahim v. Ham7.o Khan, reported in P L D 1987 Karachi 520, it is the privilege of the landlord to take a decision how best he can use his property, whether by letting out to tenants for monetary gains or to put it to his own use. The right to claim possession from a tenant would be regulated by the Court only to the extent to examine whether the request for 1g possession is inspired with good faith or it is frivolous or mala fide. Sufficiency and insufficiency of accommodation is a matter of individual taste and discretion with which a Court would hardly interfere.

12. The existence of bona fide need alone is sufficient to order eviction of a tenant. The element of hardship to a tenant cannot be imported while deciding an application under clause (vii) of subsection (2) of section 15 of the Sind Rented Premises Ordinance, 1979. The law does not lay down any humanist approach. A Judge has to deal with hard facts and he is supposed to decide the case on legal evidence alone.

13. For the foregoing reasons there is no merit in this appeal which is accordingly dismissed with no order as to costs. The appellant is, however, allowed two months, time to vacate the demised premises. Z.S./T‑70/K, Appeal dismissed.