1996 PLP 1178 (SCMR)

SALEEM AKHTAR, J.--The appellant, with the leave of the Court, has challenged the judgment of the learned Judge in Chamber whereby first rent appeal filed by the respondent was-allowed and the appellant was ordered to be ejected from the disputed premises.

2. By lease deed dated 1-7-1964 between Mst. Mariam Mashkoor Ahmad, predecessor-in-interest of the respondent and the appellant, premises comprising of Shops Nos. l, 2, 3 and 4 and three cabins in the building on plots Nos.41 and 42, Commercial Area, P.E.C.H.S., Tariq Road, Karachi was leased out on a monthly rent of Rs.750. The appellant is carrying on business in the name and style of Cafe Liberty. The respondent instituted Rent Case No.1045 of 1985 seeking eviction of the appellant from the said premises alleging default in payment of rent, Authorised additions and alterations in the premises impairing material value and utility of the building and personal bona fide requirement of her grown up son Najib Ali Yusuf. The learned Controller granted the application by order dated 10-1-1984, but in appeal the learned Judge in Chamber of the High Court of Sindh set aside the said order and remanded the case to the Controller with direction to decide the question of personal bona fide requirement of the respondent's son Najib Yusuf after recording further evidence on the points highlighted in the remand order. The respondent had pleaded that the premises was required in good faith for her son, who would carry business by opening a super market/store. The remand order reads as follows:-- "In the present case the respondent had applied for ejectment of the appellant from the four shops and 3 cabins. Nothing has been brought on record to indicate what is the size of each shop or what would be the total area of the above four shops and 3 cabins.. Nor any material has been brought on record to indicate what would be reasonable requirement for a super market if in fact the respondent's son wants to open a super market. Though in his cross-examination the respondent's son had alleged that he had taken training of one year in the Departmental Store at Queens Road, but nothing has been brought to substantiate the same. The portion of the cross-examination of the . respondent and son of Najeeb quoted hereinabove indicates that he has no idea as to the nature of the business which he intends to do. After remand both the parties led evidence. On behalf of the respondent, her attorney Ali Yusuf and son Najib Yusuf appeared. They also produced a site plan showing the area of the plots on which the building is constructed, certificate to show that Najib Yusuf has taken training for running super market and documents to show that agencies were being offered by T.V. Corporation. The learned Controller dismissed the application holding that no new evidence was brought on record on the points highlighted in the remand order and that the respondent's son was engaged in full time business, therefore, it was not possible for him to attend to a new business. In appeal, by the impugned judgment the order of the Rent Controller was set aside and the appellant was ordered to be .ejected from the premises. Leave was granted to consider the contention whether no evidence was produced by the respondent as required by the remand order and further that from the facts on record bona fide requirement has not been proved.

3. Mr. Aamir Raza Khan, learned counsel for the appellant contended that in terms of the remand order, the respondent was required to produce evidence to show the measurement and area of all the four shops and three cabins and also to prove that the premises was suitable for running business by her son. Mr. Fakhruddin G. Ebrahim, learned counsel for the respondent contended that in the additional evidence, all material facts required by the remand order were produced, which also supported the respondent's case. Mr. Aamir Raza also contended that four shops and three cabins were leased out but as the application only seeks ejectment from the shops only, the failure of the respondent in not specifying the area of the shops and cabins separately it is not possible to grant an ejectment order. From the facts on record, which are not disputed, it is clean that under the lease deed, Shops Nos.1, 2, 3 and three cabins had been rented out. The partition wall between the shops had been removed and it had been converted into a hall. The only question for consideration was whether the premises was required bona fide by the respondent for carrying on business of super market by her son. The entire object of the remand order was to ascertain the total area of the shops and cabins and also to find out whether the demand of the respondent is not based merely on the desire to carry on business, but it is genuine, bona fide and real. According to Mr. Aamir Raza, none of the requirements contained in the remand order were satisfied. However, Mr. Fakhruddin G. Ebrahim, learned counsel for the respondent has contended that the additional evidence produced completely meets with the demands of the remand order. From the additional evidence it is clear that the measurement of the entire area occupied by the appellant, has been given. The plan produced shows that the area of the plot measures 210 square yards and that the area occupied by the appellant, which impliedly means the shops and the cabins because no other area is alleged to have been occupied by him, is 160 square yards. It is also clear from the oral evidence that the remaining 50 square yards is occupied by another tenant having his clinic and includes stair-case, passage and conveniences etc. Thus, from the evidence, area occupied by the appellant can be ascertained. The contention that the area of each shop has not been given is immaterial because these four shops have been converted into a hall, which is occupied by the appellant. Further, contention that even the measurements of the cabins have not been given is of no consequence because admittedly all the four shops and the cabins existed on a plot of 210 square yards out of which 160 square yards comprising of these shops and cabins is in possession of the appellant. Therefore, the entire area of 160 square yards is to be taken into consideration, which has been proved by the respondent.

4. The learned counsel for the appellant then contended that from the evidence on record particularly produced after the remand order, bona fide requirement is not proved. The appellant has field additional affidavit of Najib Ali Yusuf and attorney of the respondent to the effect that Najib is a young man now about 35 years old, a commerce graduate and a director in a construction company of the respondent family. Najib has further stated that he had taken training in the Agha Super Market for running business of departmental store. A certificate to that effect has also been produced. A letter from TV Corporation has also been produced, who are agreeable to appoint Najib as their sub-agent for dealing with all sizes of SAMSUNG Refrigerators and standard and deluxe washing machines manufactured by their principal M/s. Indesit. They also offered to provide other products for the store being opened by him at Tariq Road. He further stated that an area of 160 square yards will be sufficient for establishing a departmental store business. The learned counsel for the appellant attacked these pieces of evidence by saying that the certificate and the letter from Tee Vee Corporation were false and manoeuvred. However, even if we exclude these two documents, the fact remains that the respondent and her son have consistently stated that Najib would establish a departmental store. He has also filed his wealth tax assessment order to show the assets he owns. There is nothing on record by way of rebuttal evidence that Najib cannot establish or run a departmental store in the premises. The establishment and running a departmental store by the respondent as stated by him cannot the ruled out. Unless there is cogent evidence and sufficient proof that it is not possible or practicable to run such a business, the Court would be inclined to hold that the requirement is bona fide. The learned counsel for the respondent has referred to Hasan Khan v. Mrs. Munawar Begum PLD 1976 Karachi 832 and Jehangir Rustam Kakalia v. State Bank of Pakistan 1992 SCMR 1296. In the latter case, while approving Hasan Khan and relying on Tauhid Khanum v. Muhammad Shamshad 1980 SCMR 593 it was observed that on the issue of personal need, statement on oath, if consistent with the application and not shaken in cross- examination or disproved in rebuttal is sufficient to prove that it is bona fide. Applying this test, we find that the respondent has been consistent and the evidence produced is not in conflict or inconsistent with the ejectment application. No evidence in rebuttal has been produced to shake the testimony nor in cross-examination the witnesses have shown any infirmity to discredit it.

5. The question whether 160 square yards is sufficient to run a departmental store was also raised to attack the bona. fides of the respondent's requirement. The premises is situated on Tariq Roa, which presently is the most busy and lucrative commercial area of Karachi. On two sides of the premises are roads. In such a highly valuable commercial area, 160 square yards is a sufficient and reasonable area in which a departmental store or any other business can be run. Moreover, if the landlord wants to establish a business in a particular area, then unless it is shown that the alleged business can, in no circumstances, be run in such an area or that in all probability, it cannot be used or suitable for the purpose for which the landlord demands it, the bona fide cannot the attacked. There is no evidence to show that super markets cannot be opened or run or established in the premises comprising 160 square yards in a commercial area.

6. The learned counsel for the appellant then contended that the respondent had constructed several shops and apartments in the Defence Housing Authority area which were let out during the pendency of the case. It was further contended that it was open to the respondent to have occupied the premises, which were available in those buildings. From the evidence it seems that a company, namely, Ali Associates Ltd., in which the respondent and her son are directors, has been carrying on business of construction and have made apartments and shops, which were either disposed of on hire-purchase basis or have been rented out. These buildings are in the Defence Housing Authority and from evidence it seems that there is a commercial area where shops and departmental stores are in existence. The suitability of opening a departmental store in any one of the available premises entirely depends upon the discretion of the landlord. However, such need and discretion should be real, genuine and not tainted with mala fides. Reference can be made to Malik Muhammad Ramzan v. General Iron Stores and another 1995 SCMR 1125. From amongst the apartments and buildings constructed in Defence Housing Authority; the respondent has stated that they are not suitable for running a departmental store as the commercial area has not fully developed there. The commercial area at Tariq Road, which has become hub and centre of commercial activity in Karachi is a better plea of establishing profitable business there as compared to an area where commercial activities have not developed fully. Furthermore, it has been stated that in the area where apartments have been made, there are three or four departmental stores. Naturally in the face of such departmental stores; unless it is a highly developed commercial area attracting a large number of people, it may not commercially be profitable to run such a business. In any event, in the judgment dated 10-4-1988 by which remand order had been made, our learned brother Ajmal Mian, J. as he then was had observed that merely the fact that respondent's husband had 62 shops in Defence Society and 21 shops in Gulshan-e-Iqbal would not disentitle the respondent to apply for ejectment on the ground of personal requirement of her son as it is for a landlord to select which of the buildings he wishes to use personally or to provide the same to his children". Therefore, this argument raised again is a closed chapter. The learned counsel for the appellant contended that the appellant has been a tenant from the year 1964 and has invested huge amounts on establishment of business, which has earned goodwill as well. That may be so, but the fact remains that these considerations are irrelevant if the ejectment case falls within the four corners of section 15 of the Sindh Rented Premises Ordinance. Ejectment of a tenant is regulated by statute, which provides specific grounds on which a landlord can seek ejectment. Once such ground is proved, the contentions now raised become completely immaterial.

7. The learned counsel for the appellant contended that in the ejectment application, prayer has been made for ejectment only in respect of Shops Nos. l, 2, 3 and 4, but no mention has been made about the three cabins and therefore no ejectment can be granted if not in respect of shops, at least from the cabins. Mr. Fakhruddin G. Ebrahim learned counsel for the respondent has taken us through the ejectment application, written statement and the evidence' of the parties to show that at all time the respondent had sought ejectment of the entire leased out premises which consisted of four shops and three cabins and merely because cabins have not been mentioned in the prayer clause, the Court would not on such technical ground refuse to eject the appellant. In fact at no stage of the proceedings such objection was raised. Even in the memo. of appeal, this plea has not been taken nor leave was granted on the ground. During the entire proceeding both the parties were labouring under the impression and rightly so that the ejectment is sought from the entire leased out premises. In our view the omission in the prayer clause would not disentitle the respondent from seeking ejectment from the entire leased out premises including the cabins. The appeal is dismissed. However, considering the fact that the appellant is running a business from a long period, with the consent of the learned counsel for the respondent, it is allowed eight months' time to vacate the premises leased out to him. M.B.A./F-388/S Order accordingly,