1980 PLP 492 (CLC)

S. 3(a) (ii)-Good faith-Appellant (landlord) selling out alt essen tial requirements for carrying on his business when renting out shop to respondent (tenant) thereby indicating an intention to give up idea of running his business--Landlord also refusing to accept rent for several months-Bona fides of appellant (landlord) held, negatived and showed appellant's anxiety to obtain possession for reason other than one assigned. Maroof Ali Khan for Appellant. Nasrullah Awan for Respondent. Date of hearing : 16th August 1978. This IInd Appeal by the landlord is directed against the judgment o~ the learned District Judge, Sukkur, sitting as the 1st Appellate Court, whereby he allowed the appeal of the respondent/tenant, and set aside the order of the learned Rent Controller directing the ejectment of the respondent/tenant on the ground of the bona fide requirement of the premises in question by the landlord appellant for his personal use. 2. The facts which form the background of this appeal, briefly stated are that the appellant is the owner of a shop in Sharafa Bazar, Sukkur, bearing No. B. 3001. By an agreement, dated the 24th April, 1964, the appellant rented out the aforesaid shop to the respondent on a monthly rent of Rs. 60 The agreement inter alia provided that the respondent/tenant' would not b ejected so long as the terms of agreement were not violated. The said agreement also recited that the landlord had sold to the respondent/tenant the ceiling fans, iron safe, weighing scale with complete set of weights ant show-cases in the said shop. By notice, dated 1-12-9969, given through al Advocate, the appellant called upon the respondent to vacate his shot premises on the twin grounds that the tenancy agreement had expired and further that the shop was required by the appellant for his own use. The respondent's counsel by his letter dated 22-1-1969, replied that the appellant did not bona fide require his shop for his own use and in fact his real purpose for obtaining possession of the shop was to sell the same. Thereafter, it appears that the appellant did not accept the rent of the shop from the respondent, who accordingly sent the rent for December, 1969, on 7-12-1969 by money order, and since the money order was refused, he sent another money order on 7-1-1970 in respect of the rent of the shop for the months of December, 1969, and January, 1970, and a third money order on 7-2-1970 in respect of the rent for the month of February, 1970. These money orders were also refused by the appellant. In the meanwhile, on 26-1-1970, the appellant filed a rent application against the respondent on the grounds that the latter had defaulted in the payment of rent for the month of December, 1969, and also on the ground of personal requirement of the shop by the Landlord. 3. The learned Rent Controller held that the ground of default of payment was baseless inasmuch as the rent for the month of December, 1969, had been sent by money order to the appellant on 7-12-1969, but the appellant had refused the money order, and that further, subsequently, the respondent had sent by money order the rents for the months of December, 1959, and January, 1970 on 7-I-1970 and the rent for the month of February, 1970 on 7-2-1970, but the appellant had refused these money orders also. 4. In regard to the ground of personal requirement, however, the learned Rent Controller was of the view that this ground has been established in view of the fact that admittedly the appellant had no other shop and consequently was either working in the shops of others or at home. On an appeal being taken before the learned 1st Appellate Court, it held that the ground of personal requirement by the appellant had not been established, in view of the fact that at the time of renting out his shop to the respondent, he had even sold away his instruments and fixtures of the shop and further that nothing new had transpired between the date when the agreement for rental of the shop, was entered into between the parties and the filing of the rent application, which could have altered the position and indicated that the appellant genuinely and bona fide required the shop for his own use. 5. I have heard Mr. Maroof Ali Khan, the learned counsel for the appellant, and Mr. Nasrullah Awan, the learned counsel for the respondent. Mr. Maroof Ali Khan submitted that there was adequate evidence on the record in support of the finding of the learned Rent Controller that the appellant bona fide required the shop for his own use the learned counsel relied, in support of his contention, upon the testimony of appellant himself and his witness Niaz Muhammad. As regard the appellant all that he has stated on this point is that he wants the shop for himself as he has no other business and that he has no other shop in his possession. The mere desire of the landlord to get back possession of a shop which is rented out is not enough to entitle him to an order of possession. In order to entitle him to such an order, there must be a requirement of the shop of the landlord for his own use or the use of his children and furthermore the requirement must be bona fide. The evidence of the appellant himself does not indicate that he requires the shop bona fide and merely discloses a desire on his part to get back the shop. 6. So far as witness Niaz Mohammad is concerned, he no doubt states that the appellant is a goldsmith and being without a shop is working in other shops or at his own house, but the appellant himself has not claimed that he was either working at other shops or at his own house. From the mere fact that the appellant has no other shop, it does not necessarily follow that he is working at shops of other people. If in fact the appellant was working at shops of other persons, it would have been easy for him to establish this fact by examining those persons. Furthermore, the fact that at the time of Periling out the shop to the respondent the appellant had sold the iron safe, weighing scale, show case, etc., which are evidently essential requirements for the carrying on of the business of a goldsmith, it would appear that the respondent had given up the idea of running a g6ldsmith's shop. Another circumstance which to my mind, negatives the claim of the appellant that he requires the shop bona fide for his personal use, is his refusal to accept the rent of the shop from the respondent for the months of December, 1969, to February, 1970. This refusal, in my view, re-acts upon his claim of bona fide requirement of the shop and indicates that the appellant was anxious, for perhaps other reason, to obtain possession of the shop. In these circumstances, the observation of the learned 1st Appellate Court that the appellant seems to have been actuated by greed on finding the business of the respondent flourishing, cannot be considered to be alto gether uncalled for or unreasonable. In any case whatever may have been the motive which prompted the appellant to try to obtain back possession of the shop, he has failed to establish the ground of bona fide requirement for his personal use. I would accordingly dismiss the appeal with costs. K. W. A. Appeal dismissed.