P L D 1988 Karachi 385 (PLP)

This Appeal is directed against the judgment dated 10‑1‑1984 passed by the learned XVth Senior Civil Judge/ASJ/R.C. Karachi in Rent Case No.1045/1980 ordering of the ejectment of the appellants on the ground of personal requirement and impairing the value of the property. The appellants being aggrieved by the above judgment have filed the present appeal.

2. The brief facts leading to the filing of the above appeal are that the respondent filed the above application for ejectment on 19‑Z‑1980 on the grounds of personal requirement, unauthorised addition and alteration in the premises and thereby impairing the utility value thereof and default from December 1979 to January 1980. The above application was resisted by the present appellants inasmuch as a written statement was filed. The learned Rent Controller on the basis of the pleadings of ‑the parties framed the following five issues: "(1) Whether the application is not maintainable? (2) Whether the applicant requires the premises in question for her personal bona fide use? ( 3) Whether the opponent has made addition and alterations in the premises in question without consent and permission of applicant landlady? (4) Whether the opponent has committed default in the payment of rent? (5) What should the decree be?" In support of the rent application respondent's husband Ali Yousuf son of S. Zafar Yousuf and her son Najib filed affidavits in evidence, whereas on behalf of the appellants Faridoon son of Kaikhosro Irani filed affidavit in evidence. The learned counsel for the parties cross-examined the witnesses of the other side on the affidavits. Learned Rent Controller after hearing the parties, allowed the above application on the above two grounds and rejected the ground of default by her judgment dated 10‑1‑1984. The appellants being aggrieved by the above judgment have filed the present appeal.

3. It may be observed at the outset that Mr. Khalid PA. Ishaque learned counsel for the appellants has not pressed the above issue No.l as to the maintainability of the application, whereas Mr. Nasim Farooqui learned counsel for the respondent has candidly submitted that he does not wish to support the ground of unauthorised addition and alteration. The only ground which was urged and contested, was he personal ground. Mr. Khalid M. Ishaque learned counsel for the appellants has vehemently urged that on the basis of the evidence on record the finding on the question of personal requirement cannot be sustained, whereas Mr. Nasim Farooqui learned counsel for the respondent has contended that there is ample material on record to support the finding of the personal requirement. It may be pertinent to reproduce para. 7 of the application and para. 7 of the written statement which relate to the personal requirement and which read as follows: Para. 7 of the Application. "That the applicant requires the premises in good faith for use by her grown‑up son Najib Ali Yusuf, who will do business in. the said premises by opening a Super Market Store." Para. 7 of the Written Statement. "The statements made in paragraph (7) of the. application and their implications are denied. It is denied that the premises is required in good faith for use as alleged or otherwise." It may be noticed that in the rent application the respondent had pleaded the requirement of her son Najib Ali Yusuf for opening a Super Market Store which averment was denied by the appellants in their written statement. The above ground was supported by para. 7 of the affidavit of respondent's husband and by paras. 1 to 5 of her son's affidavit, which read as follows: Para. 7 of the affidavit of Ali Yusuf: "That the applicant requires the premises in good faith for use by her grown up son Najib Ali Yusuf, who will do business in the said premises by opening a Super Market Store. The said sons of the applicant is now a days not doing any business and the applicant wants him to settle down and do his own business. " Paras. 1 to 5 of the affidavit of Najib. "(1) That I am one of the sons of the applicant and am aware of the facts and circumstances of the case. (2) That I am 21 years old and at present doing nothing for want of‑ premises. ( 3) That my mother Begum Feroze, the applicant herein, is the owner and landlady of the building on plot Nos.41‑42 Commercial Market, Pakistan Employees Cooperative Housing Society, Karachi, while the opponent is a tenant of the applicant with respect to four shops bearing private Nos.1,3 and 4 and 3 cabins on the said plots No.41‑42, commercial area, P . E. C . H . Society, Karachi. (4) That the said shops No.l to 4 and 3 cabins in occupation of the opponent are required by the applicant for personal bona fide use therein I will open a Super Market Store and run the same myself. (5) That my father Mr. Ali Yousuf will provide the necessary funds for the purpose of opening a Super Market ,Store." Whereas aforesaid Faridoon in para. 5 of his affidavit had averred as follows: "

5. I deny the allegation that the premises in case is required by the applicant in good faith for use of her son Najeeb Ali Yusuf' as alieged or otherwise. In fact Najeeb Ali Yusuf is doing business of construction and sale of buildings as a share holder and Director in Ali Associates Limited anti the partnership firm of Deere Sons and fully and effectively engaged and his requirement as projected is neither genuine nor Substantial nor truthful. The so‑called requirement has sprung from ulterior motives and bad faith and constitutes fraud on statute. No case for bona fide personal requirement has been made out." The respondent's husband in his cross‑examination has admitted that his son Najib had been a Director of his Firm Ali Associates Limited and that he had completed a project in Phase I of the Defence Society on the main road comprising of ground floor plus four storeyed building and on the ground floor there are 62 shops. He has also admitted, that he is one of the partners of M/s. Deen Sons which had constructed building in Gulshan‑e‑lqbal having 21 shops, He has further admitted 'that since last two years his gun Najib was associated in his business but later on states that no was a sleeping partner. He also stated in the cross‑examination that his son had passed B. Com, whereas Najib in, his cross‑examination admitted that he was getting Rs.2,500 per month from M/S Ali Associates Ltd.. He also stated that tie passed Inter Science Examination it the year 1977 and had taken training for the Super Market in a Departmental Store for one year. He has further admitted as follows: "It is a fact that this application was got prepared on the instance of my father. It is a fact that I have no practical experience of any business. I also do not know how much I will spend in the business of super market. I can say that for running super market I need the help of seven and eight persons. I have also not made any arrangement for this regard. It is correct that case has been filed by my father. I do not know whether my father got the premises vacated and then let it out for pugree to other persons." Aforesaid Faridoon in his cross‑examination denied the suggestion that the premises were required by the respondent for her son. On the basis of the above evidence is was vehemently urged by Mr. Khalid M. Ishaque that personal requirement of respondent's son has not been proved as admittedly he has been sitting with his father as a Director of the Firm which has flourishing business and if in fact respondent's son wanted to open any Super Market the same could have been opened in one or more of the shops of the Defence Housing Society which are situated on main road in Phase I. On the other hand Mr. Nasim Farooqui has vehemently ucgec that it is the option of a landlord to select in which of the buildings owned by him he wishes to start his own business or the business of his son. He has further submitted that after the addition of Section 15‑ A in the Bind Rented Premises Ordinance, 1979 by Sind Ordinance No.2 of 1980, the burden of proof of personal bona fide requirement is not so heavy on the landlord as it was prior to the addition of the above section. I am inclined to hold 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 children. Similarly the factum that the respondent's A son has been sitting with his father in his firm and has been receiving Rs.2,500 per month as a Director may not disentitle the respondent to apply for ejectment on the ground of personal requirement of her son though the above facts may be relevant at the time of appraising the evidence and assessing the question of bona fide requirement. 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's son Najib quoted hereinabove indicates that he has no idea as to the nature of the business which he intends to do. In my view the incorporation of Section 15‑A in Sind Rented Premises Ordinance, 1979 (which provides that 'where the landlord, who has obtained the possession of a building under Section 14 or premises under clause (vii) of Section 15, relets the building or premises to any person other than the previous tenant or puts it to a use other that. personae use within one year of such possession, he shall be punishable with fine which shall not exceed one year's g rent of the building or the premises, as the ease may be, payable immediately before the possession was so obtained"), dues not absolve a landlord from discharging the burden of proof as to personal bona fide requirement nor it affects the quantum or quality of evidence required for proving personal ' bona fide requirement. It provides safeguard to a tenant in case a landlord fails to put the premises into his personal use within one year after obtaining possession on the ground of personal requirement. The burden of proof on the part of a landlord in a case of personal requirement may vary from case to case. In a case in which' a landlord resides in, a rented house and he applies for ejectment of". his tenant from the bungalow owned by him, the burden of proof on him will be comparatively light, whereas in a case in which the C landlord resides in the bungalow owned by him and he applies for ejectment of a tenant from another bungalow owned by him the burden of proof on the landlord may be heavier than in. the first aforesaid example. In the instant case even if I were to assume that the respondent's son in fact wishes to start a super market, the respondent has not brought any evidence on the above material facts highlighted by me hereinabove.

4. I am, therefore, inclined to remand the ease to the learned Rent Controller with the direction to decide the question of personal requirement after allowing the pared to lead further evidence on the points highlighted by me hereinabove. It will be open to the parties to urge whatever pleas they wish to urge in relation to the above ground of personal bona fide requirement. I may observe that I have purposely refrained Eton; commenting on the merits of the respondent's ground of personal requirement as I was inclined to remand the case.

5. I would, therefore, allow the above appellant set aside the judgment under appeal but would remand the cash to the learned Rent Controller in the above terms. The appeal stands disposed of in the above terms with no order as to costs.. These are the reasons in pursuance of a short order of even date. F‑51/ K Case remanded.