1991CLC 892 (PLP)

S.15 (2) (vii)

Personal bona fide requirement

Son of landlady for whom shop in dispute was claimed to be required admittedly was running his business on open land adjacent to building in dispute and that open land did not belong to landlady but was Government land and son of landlady was in unauthorised occupation with a temporary thatchet on it

Personal bona fide requirement of landlord in respect of shop in dispute was thus fully established in circumstances. Ghulam Ghous for Appellant. Abdul Karim Siddiqui for Respondent. Date of hearing :4th November 1990. These two appeals will be disposed of by this judgment. The respondents filed ejectment application against the appellants in both the appeals in respect of shops rented out to them on plot No. 190/1 Four Hundred Quarters Peerabad Gulbahar, Karachi. The only ground for seeking ejectment is that the premises is required for personal and bona fide requirement of Ale-Nabi Siddiqui the son of the landlady. The claim was resisted by both the tenants but the learned controller granted ejectment against them Mahboob Ali has filed F.R.A 580/8. The evidence of the parties in ejectment cases are identical. Mr. Ghulam Ghous the learned counsel for the appellant has contended that the respondent has failed to prove bona fide requirement and therefore, ejectment cannot be granted. In this regard learned counsel has pointed out that before filing the ejectment case the third shop which was in possession of the landlady/respondent was closed down to create a ground for ejectment. On the other hand the respondent has stated that shop was converted into residential premises about three years back as there are large number of family members and the accommodation was not sufficient. In this regard both the witnesses have given a list of the family members which are nine in number. They are occupying the rear portion of the shops and the first floor. The plot on which the building is constructed is 66.66 Sq. Yards. Six of the members are grown up and major persons. Therefore, the conversion of the shop into a residential portion seems to be reasonable. The learned counsel for the appellant further contended that the particulars of the business, its size and level has not been stated in the evidence, and therefore, personal requirement has not been established. From the evidence of both the parties it is fully established that Ale Nabi is running a business of marble goods on the open land adjacent to this building. It is also an admitted position that this land does not belong to the respondent but is a Government land and the respondent's witnesses have testified that Ale Nabi is in unauthorised occupation, with a temporary thatchet on it. Ale Nabi Siddiqui has stated that he has employed about 2/3 persons and is able to earn about Rupees two or three thousand per month. He deals in marble goods, therefore, it is fully established that Ale Nabi is carrying on business in an open space which is in his unauthorised occupation. In these circumstances his requirement is fully established. The only question which arises is whether his requirement is of such a nature that ejectment in respect of both the shops should be granted. In my view, considering the nature, size and volume of business, his requirement should be limited to one shop only. Therefore, so far ejectment against one shop is concerned it cannot be maintained. It is to be considered that which of the shops should be handed over to the respondent. Both the ejectment cases were filed simultaneously and in these circumstance the option should usually be left to the landlady. On my enquiry Mr. Abdul Karim Siddiqui the learned counsel for the respondent on instructions from the attorney Dilshad Nabi Siddiqui has stated that respondent would prefer to have possession of the shop occupied by Afzal Hussain (FRA 580/89). Consequently F.R.A.580/89 is dismissed. The appellant shall vacate and hand over vacant possession of the shop within a period of six months. For the aforestated reasons as requirement in respect of one shop has not been established and the option has been exercised 'in respect of shop occupied by Afzal, FRA 579/89 in respect of shop occupied by Mahboob Ali is allowed. The parties shall bear their own costs. H.B.T./A‑1003/K Order accordingly