1988 PLP 1240 (MLD)

This is an appeal under section 21(1) of the Sind Rented Premises Ordinance, 1979.,

2. The appellant is the landlord of the premises bearing No.1727/447, Turk Colony, Baldia Township, Karachi and the respondent is his tenant in respect of a shop premises situated on the said plot at monthly rent of Rs.80. The respondent was served with a notice dated 12‑12‑1977 by the appellant to vacate the premises as "he needs for the use of his son for business purposes". The respondent having failed to vacate the. premises, an ejectment case bearing No.265 of 1978 was filed in the Court of 9th Senior Civil Judge and Controller, Karachi. Only one issue was framed; whether the case premises is required by the applicant for the personal use for his son bona fide in good faith?. The appellant's elder son Abdul Ghani appeared in the case as his attorney and gave evidence on behalf of the appellant. The younger son, Abdul Sattar, for whom premises was required was also examined. The respondent examined himself only. The learned Rent Controller by his order, dated 28th October, 1984 dismissed the application.

3. Mr.Yousuf Khatri, learned counsel for the appellant submitted that the Rent Controller has failed to appreciate the evidence produced by appellant and has come to an erroneous finding both on points of facts and law. The premises is required bona fide for the use of his son, who is jobless since last several years. 'He referred to the evidence led by and on behalf of appellant. On the other hand, Mr.Farman A.Hashmi, learned counsel for the respondent submitted that the premises is not required bona fide. In fact the appellant wants to increase the rent on that pretext.

4. It appears that the learned Rent Controller was not satisfied with the evidence led by the appellant and was impressed by the fact, as alleged by the respondent, that the appellant wanted only enhancement in the prevailing rent, and so the plea of personal requirement did not appear to him to be true and genuine. After going through the entire evidence led by the parties in the case, I must say that I have come to a different conclusion. The appellant's elder son and attorney (Ex.5) stated in his examination‑in‑chief as under:‑ "We require the shop in dispute for the use of my younger brother who is sitting idle since last 3 years. In past my younger brother was in service at a Kiryana Store. The age of my younger brother is 28 years and he is a marred man and there are four children to him. There is another shop also with Opponent, opposite the shop in the case. My younger brother Abdul Sattar is still jobless." In cross‑examination he further stated as under: "During last three years my younger brother tried to get job but could not get any job. My father and we help our brother for his livelihood." The younger son of the appellant Abdul Sattar for whom the premises is required stated in his examination‑m‑chief that: "I am sitting idle and jobless since last about three years. I want to do Kiryana business in this shop in case. The Opponent is also in possession of another shop in front of the shop in case which is also on rent with him and one Hawa Bai is the owner of that shop. The applicant has no other premises in Karachi." In the cross‑examination it was stated by him that: "3 Years back I was in service of Liaquat Ali at his Kiryana shop. I asked the increase in salary on which Liaquat Ali did not agree and then I tried to get other job but failed."

5. The following cross‑examination of the appellant's attorney appears to he somewhat important and thus it is reproduced as under:‑ "We are not ready to take the shop of opponent on rent as that is not suitable for his business. It is incorrect to say that we have increased the rent for so many times saying to the opponent that we require the shop in case for our own use. It is incorrect to say that before riling of this case the applicant asked opponent to increase the rent. During last three 3 years my younger brother tried to, get job but could not get any job. My father and we help our brother for his livelihood. It is incorrect to say that my younger brother is in service at another Kiryana Shop. It is incorrect to say that we have disconnected the electricity of opponent."

6. Mr.Farman A.Hashmi, learned counsel for the respondent, on my query to explain the above cross‑examination, submitted before me that besides the shop of the appellant the respondent had another shop in front of the shop in dispute having an area of 12 x 12 feet, which was made of wood and roof whereof is of tin. The said shop was suggested as an offer to the appellant's attorney to take it but that offer was not accepted as it was not suitable for the business of the appellant's son.

7. As regards the alleged demand for increase of rent it appears that originally the shop was rented out in 1973 at the rate of Rs.25 per month. Some RCC construction was made thereafter and the rent was increased to Rs.40 per month and since the shop in question, comprised of, contained in fact, two shops, therefore, the rent of the premises was settled at Rs.80 per month. It was denied that the appellant wanted to increase the rent. In the examination‑in‑chief the respondent stated that the appellant had demanded enhancement from Rs.80 to Rs.100per month, to which the respondent did not agree and in retaliation the appellant instituted the case. In the cross‑examination it was stated by the respondent that the appellant demanded the enhancement of rent to Rs.150 per month. This allegation has been categorically denied by the appellant's attorney, so there is word against word. The burden of proof was on the respondent which he failed to discharge, inasmuch as that he produced no evidence, documentary or oral, to substantiate his allegation.

8. Mr.Khatri, learned counsel for the appellant placed his reliance on the case of Badruddin Hasan Farooqui v. Manghi Industrial Home P L D 1976 Kar. 620, wherein it was held by MrJustice MA. Rasheed (as he then was) in an ejectment sought on ground of personal bona fide requirement, that "in any case a demand of higher rent by itself does not cast any doubt about the personal bona fide requirement if the factum of bona fide requirement is independently proved". The Honourable Supreme Court in the case reported as Rafiq Ahmad v. Abdul Rahman 1980 S C M R 772 agreed with this dictum.

9. I am, therefore, of the view that sufficient evidence was available of good faith on the part of appellant to require the premises for personal use of the JA appellant's son who is jobless for the last three years. Even if there was a demand of higher rent at some point of time that would not: by itself be termed as an act of bad faith or mala fides, for the requirement of the premises, which stands proved in the circumstances of the case. Reliance may be placed on the cases of Allied Bank of Pakistan v. Syed Vahid Hussain 1986 S C M R 946 and M/s. Younek Electric Company Ltd. v. Muhammad Abdul Hayi Khan 1981 S C M R 181.

10. The appeal is, therefore, 'allowed and the respondent is directed to vacate the premises within two months from today, subject to depositing rent regularly in terms of the order passed by the learned Rent Controller m the case.

11. Before parting with the case, I would like to observe that the case having been filed under the provisions of Sind Urban Rent Restriction Ordinance, 1959, it shall be governed by the substantive., provisions of the said Ordinance. Sufficient safeguard has been provided in subsection 13(4) of the said Ordinance which ~.._‑`reads as under:‑ "Where a landlord who has obtained possession of building or rented land in pursuance of an order made under sub‑paragraph (i) or sub paragraph (ii) of paragraph (a) of subsection (3), does not himself or where the building has been got vacated for the occupation of any of his children, such child does not occupy it within one month of the date of obtaining possession, or having been so occupied is re‑let within two months of the said date to any person than the original tenant, the tenant who has been evicted may apply to the Controller for an order directing that he shall be restored to possession of such‑building or rented land and the Controller shall make an order accordingly." It is also noticeable that similar safeguard has also been provided in Section 15‑A of the Sind Rented Premises Ordinance, 1979 which reads as under:‑ "Where the. landlord, who has obtained the possession of a building under section 14 or premises under clause (vii) of section 15, re‑lets the building or premises to any person other than the previous tenant or puts it to a use other than personal use within one year of such possession. (i) he shall be punishable with fine which shall not exceed one year's rent of the building of the premises as the case may be, payable immediately before the possession was so obtained. (ii) the tenant who has been evicted may apply to the Controller for an order directing that he shall be restored to possession of the building or the premises, as the case may be, and the Controller shall make an order accordingly." Therefore, in case the premises in question is not occupied by the son of the appellant or is re‑let to any person other than the respondent, the respondent will be entitled to apply to the Controller for restoration of possession to him and such other remedies as provided in law. H.B.T./H‑80/K Appeal allowed.