1992 PLP 1318 (MLD)

This appeal under section ' 21 of the Sindh Rented Premises Ordinance, 1979, is directed against the order dated 18‑1‑1987, passed by Mr. Muhammad Saghir Rana, 1Vth Senior Civil Judge and Rent Controller (West) Karachi, by which he directed the ejectment of appellant from commercial premises situated at Wilayatabad, Karachi.

2. The appellant is the tenant of respondent in respect of a shop situated at Wilayatabad, Karachi, at a monthly rent of Rs.

150. On 19‑8‑1986, the respondent filed an application for ejectment against the appellant on the grounds of causing damage to the premises, being source of nuisance and personal requirement. The appellant controverted the allegations based on facts. According to him the respondent is in occupation of another shop where her husband is running the business of bakery. It is also pleaded by him that Muhammad Ayub, son of the respondent for whom the shop was required was engaged in running Suzuki Pick‑up on hire. His defence in main is that the respondent wanted to close his window by raising unauthorised construction, which forced him to file a suit for injunction, and as a result thereof the present proceedings were initiated.

3. On the pleadings of the parties following issues were framed:‑ (1) Whether the shop in question is bona fide required by the applicant for the use of her son? . (2) Whether the opponent has opened a window and thereby damaged the shop in question, as alleged ? (3) Whether the opponent is a constant source of nuisance for the applicant ? (4) What should the order be ?

4. The respondent has examined herself (P.W.1) and her son Muhammad Ayub (P.W.2), while the appellant has examined himself (D.W.1) and Khalique Ahmad (D.W.2).

5. On the assessment of evidence, both oral as well as documentary, the learned Rent Controller decided issues Nos.2 and 3 against the respondent. He, however, decided issue No.1, against the appellant giving rise to this appeal.

6. The only grievance. learned counsel for appellant ventilates, is about the failure of Rent Controller to draw a distinction between a mere "wish" and a "genuine need" of the respondent to occupy this shop. According to him the learned Rent Controller has not appreciated that in the eviction application the respondent did not furnish the details of business which Muhammad Ayub (P.W.2) proposes to start in the premis0s. She also failed to disclose the resources and past experience of Muhammad Ayub to enable him to do the business. He has, therefore, contended that a mere "wish" or "desire" without other material available on record was not sufficient to invoke the provisions of clause (vii) of subsection (2) of section 15 of the Sindh Rented Premises Ordinance, 1979. Reliance is placed upon cases reported as Anis‑ur‑Rehman v. Mst. Sharifa Khatoon and another (1986 CLC 448), Akhlaq‑un‑Nabi v. Nawab Ahmad Shamsi and 6 others (1986 CLC 1100), Mst. Farrukh Nisa v. Safdar Ahmed and 6 others (PLD 1985 Karachi 639), and Mahmooda Khatoon and 5 others v. Adi Sharoof (PLD 1989 Karachi 181). The ratio of the above authorities is that mere wish, convenience, whim or fancy would not be enough to show that landlord requires premises in good faith. These authorities further lend support to the contention raised by learned counsel for appellant before me. A contrary view is, however, taken in cases reported as Muhammad Ibrahim v. Fakir Muhammad (1982 CLC 230), Messrs Haji Jannat Gul and Co. v. Ch. Nawaz Haq and 6 others (1983 CLC 241), and Sher Muhammad Khan v. Alijan Khan (1983 CLC 2222). No hard and fast rule can be laid down for the quality of evidence which is required to prove bona fide of the landlady for invoking the provisions of clause (vii). The expression "good faith" is used in this clause after the word "requires" deliberately. Neither the word ."desires" nor the word "needs" has been used and hence that would negate the two extreme views canvassed in the above two sets of authorities. A mere desire or an absolute necessity or need are both erroneous approaches on the plain reading of the above clause. In order to decide this question all that is required is to see whether the landlady honestly requires the premises.

7. Quite admittedly the disputed premises were leased out to one Abdul Aziz in the year 1960. The said Abdul Aziz entered into partnership with the appellant who was accepted as tenant by the respondent after the death of Abdul Aziz. Obviously the needs of respondent in the year 1960 or thereafter when the appellant was taken as tenant were limited. She has now a grown up son, by name, Muhammad Ayub, who is jobless. By no stretch of imagination the desire of respondent to adjust Muhammad Ayub in her own shop can be said to be mala fide. The record shows that Muhammad Ayub worked at lathe machine and for some time he assisted his stepfather who is running business of bakery in one of the three shops owned by respondent. He is thus not yet settled.

8. The term 'business' applies to an occupation of a mercantile or commercial nature. The words `business purposes' would include professional purposes. There is, however, no yardstick whereby one can measure the range of activities necessary to constitute the carrying on of a business. The respondent is, however, the sole judge to determine the kind of business which is to be started in the shop premises after the same is vacated. The requirement of the landlady will not be defeated simply because she has not made up her mind about the nature of business to be carried on in the required premises after the same is vacated by the tenant. The provisions contained in section 15‑A of the Sindh Rented Premises Ordinance, 1979, provide a further check to prevent the abuse, on the part of 'a landlady, if she relets the premises to any other person after the same is vacated by the tenant on the p aforesaid ground.

9. Lastly it was vehemently suggested on behalf of appellant that the ejectment proceedings are the result of a suit for injunction filed by the appellant against the respondent when she made an attempt to close the window of the disputed premises. I cannot see how it is possible to find any substance in this argument. The learned Rent Controller who had the occasion to see the demeanour of the witnesses was favourably inclined to respondent (P.W. 1) and her son Muhammad Ayub (P.W. 2), and I find it difficult to reject the assessment made by him in his well considered order.

10. For all the above reasons, I see no substance 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. H.B.T./M‑1590/K Appeal dismissed.