1998CLC410 (PLP)

(2) The Controller shall, make an order directing the tenant to put the landlord in possession of the premises within such period as may be specified in the order, if he is satisfied that‑‑‑ (i)

(ii)

(iii) the tenant has, without the written consent of the landlord‑ (a) handed over the possession of the premises to some other person

13. On the issue of subletting the opponent No. 1 has stated as follows: "

6. That in reply to para. 5 of the application it is submitted that it is denied that the opponents 1 and 2 have sublet the portion of the said shop to the opponent No.3 as alleged. It is denied that the opponents Nos. l and 2 have sublet the portion of the said shop to the opponent No.4 as alleged. It is denied that both the sub‑tenants are illegally paying monthly rent to the opponents Nos.l and 2 as alleged. It is submitted that the opponents Nos.3 and 4 are legal and authorised sub tenants of the opponents Nos. l and

2. The necessary permission for subletting was obtained from the previous owner Mr. D.R. Marker vide his letter, dated 16‑2‑1955 addressed to the opponents Nos.l and 2. (The original letter, dated 16‑2‑1955 referred to above is filed herewith and marked as 'N'). The allegations of sub-lettings are devoid of merits and of no legal substance because such sub-lettings took place in the year 1955 and whereas the applicant purchased the case building in the year 1976 and that the said sub-lettings will not be governed and/or regulated under the provision of the Sindh Rented Premises Ordinance, 1979 which was not retrospective and came in force on 21‑11‑1970 Mr. D.R. Marker was the original owner of the case building and after his death, Miss Mani Dorabji Marker became the owner of the case building and that she gifted the said property to (i) Mrs. Soonu F. Kandawalla, (ii) Nari M. Ghenoy, and (iii) Dinyar M. Ghenoy in 1974 and they sold the said property to the applicant in the year 1976, Miss Mani Dorabji Marker had also consented to the said sub-lettings as evident from the proceedings of Revision Application No. 1298 of 1969 which was decided by the Additional Commissioner of Karachi vide his judgment, dated 12‑5‑1969.

7. That the contents of para 6 of the application are denied. It is denied that the opponents Nos. l and 2 the premises to any one also including the opponents Nos. 3 and

4. It is denied that the opponents Nos. l and 2 had never been given permission by the previous owner. It is submitted that the question of consent or permission of the applicant to the subletting did not arise in the facts and circumstances of the instant case in view of the fact that the subletting took place in 1955 with the consent of the previous owner as stated above and that the applicant acquired the ownership of the case property in the year 1976. It is denied that the opponents are liable for ejectment. " 13 The letter under reference is reproduced as follows; "To, Md. Hanif & Zakariya Yusoof, C/o Rainbow House, Elphinstone Street, Karachi. Dear Sirs, I am in receipt of your letter of 12‑2‑1955, I have no objection if you sublet a parts) of my plot SB‑7/40 to any person(s) to whom you choose best. I also permit you for making cabin(s) attaching to my plot No.SB‑7/40, Elphinstone Street, Karachi. Further I permit you for making show case(s) in or outside the plot whichever place(s) you choose best for you, for your personal use not for sub‑letting. Thanking you Yours faithfully (Sd) Karachi, 16‑2‑1956, (D.R. Marker)"

14. The landlord's attorney in his cross‑examination has deposed as follows; "The original owner of case property was D.R. Marker. I was his tenant. I produce 4 receipts as Annexures O/1 to O/4. I do not recognise signature of Marker. But these receipt are issued by him".

15. At the relevant time the attorney of the appellant was also tenant of the original landlord Mr. Marker. He produced four receipts issued by Mr. Marker which are on record as Annexures O/1 to O/4. Comparing the signatures on Annexures O/1 to O/4 with the above‑quoted letter the fact which emerges from the record is that the written consent from the landlord was contained before inducting the respondents Nos.3 and 4.

16. It is, therefore, held that the respondents Nos.3 and 4 were given possession of the premises with written consent of the then landlord. The issue of inducting respondents Nos.3 and 4 in shops with written consent from the landlord was therefore, rightly decided against the appellant by the Rent Controller, and such findings do not call for exceptions.

17. This brings me to the ground of personal bona fide need. I have extensively quoted the plea as well as the evidence of the parties in the earlier part of this judgment. It is well‑settled that the landlord has the option to seek ejectment of his tenant for his personal use but the personal use of the landlady is clipped with the words "good faith". The word 'good faith' has been dealt with by Hon'ble Supreme Court in the case of Mst. Sara Bai v. S. Anisur Rehman (1989 SCMR 1366). Honourable Supreme Court incorporated the definition of "good faith" in West Pakistan General Clauses Act, 1956, which reads as follows: "A thing shall be deemed to be done in good faith where it is in fact done honestly whether it is done negligently or not. "

18. In order to ascertain whether good faith is established on record, following the dictum of the Hon'ble Supreme Court, the Courts have to probe the record and to find out whether honest intentions are available, and spelled out from the record itself. This is all the more needed as word "good faith" is not defined in the Sindh Rented Premises Ordinance, 1979. Apart from above definition good faith has been given dictionary meaning, which inter alia is as follows: "Good faith is an intangible and abstract quality with no technical meaning or statutory definition, and it encompasses, among other things, an honest belief, the absence of malice and the absence of design to defraud or to seek an unconscionable advantage, and an individual's personal good faith is concept of his own mind and inter spirit and, therefore, may not conclusively be determined by his protestations alone. " Thus, it will be seen that apart from honesty it is to be also ascertained that there is absence of malice and absence of design to defraud or to seek an unconscionable advantage.

19. With this legal position, on the scrutiny of the above evidence the following facts emerge on record: (a) The appellant's husband alongwith his partner and respondents Nos. 1 and 2 are in the business competition as both of them are doing garment business. (b) On the day of deposition (7th May, 1988) the appellant was 63 or 64 years (and now she will be 72 or 73 years). The appellant although mentioned by her attorney that she had experience of departmental store but in the same breath he has stated that she has not done the business of departmental store. According to him (attorney) he will assist her. It is not borne out on record as to how she acquired business experience. (c) The attorney of the appellant is already partner of Mr. Abdul Aziz, who is doing business of the same nature as opponents Nos. l and 2, in the same building. Apart from doing business as partner with Mr. Abdul Aziz he wants to establish his own business of departmental store. Her husband is already established in the business.

20. The learned counsel for the appellant urged that previous experience of the business is not necessary. He further contended that old‑age is also not a bar for running the business. He further urged that the appellant has the right to establish the business of our own choice which is one of her fundamental rights. Admittedly her husband is doing the business of garments with Mr. Abdul Aziz who is alleged to be her husband's partner. All. along during this entire period no evidence has come that she has done any business in that shop where her husband with his partner is doing business. Although age is not bar but it is not understood as to why the appellant has not done any business uptodate although her husband was tenant of the landlord and was doing business in the same premises. Now she is 72 years' old and she has no experience particularly for running a departmental store. Even otherwise if she opens the departmental store she will be competing with her husband ‑who is already doing business of departmental store with his partner Mr. Abdul Aziz in the adjacent premises and in the same building. The right to establish business is subject to law which, inter alia, means to be regulated by law or provided that the law permits. For all these reasons I am constrained to hold that honest belief is lacking and good faith is not established through the evidence, which is a condition precedent to get an order of ejectment as personal bona fide use. Consequently, therefore, I hold that the personal bona fide need is not established on record and the order of the learned Rent Controller does not call for any exceptions. This appeal is, therefore, dismissed but in view of the points involved in this case, parties are left to bear their own costs. A.A./S‑107/K Appeal dismissed