2002 PLP 526 (CLC)

2. Brief facts of the case are that the appellant is the owner of the suit shop which was given on rent to respondent No.1 on payment of monthly rent of Rs.345. According to the appellant, respondent No.1 sublet the demise premises to his servant Muhammad Nafeez without consent and permission of the appellant and thus, violated the terms and conditions of the tenancy. It is averred that respondent No.1 is rent defaulter and that the shop in question is required by the appellant in good faith for business of the grandsons, of the appellant, who are jobless.

3. The application was resisted by respondent No.1 and the appellant's claim was denied. Following issues were framed out of the pleadings of the parties:‑‑ (1) Whether petitioner has got a cause of action? (2) Whether petition filed by the petitioner is based on mala fide? (3) Whether this Court had got jurisdiction to entertain the petition? (4) Whether respondent No. 1 is rent defaulter? (5) Whether respondent No.1 has sublet the shop to respondent No.2? (6) Whether the shop in question is bona fide requirement of the petitioner? (7) Whether the petitioner is entitled for decree prayed for? (8) Relief.

4. The Rent Controller after recording and appreciating the evidence of the parties pro and contra dismissed the application holding that the application is mala fide and the suit shop is not required in good faith.

5. Mr. Shakeel Ahmed Khan, Advocate, appeared on behalf of the appellant and attempted to argue that sufficient material was available on record to demonstrate that respondent No.1 had sublet the suit shop to respondent No.2 without consent of the appellant and that the shop in question was required by the appellant for the use of his grandsons but such evidence was put at shelf and totally ignored which has prejudiced the rights of the appellant. Additionally, it was urged that respondent No.1 is rent defaulter and he is not entitled to retain the suit premises. Lastly it was submitted that the impugned order has been written in a mechanical manner without application of mind and the same cannot be allowed to remain intact. In support of the submissions, reliance was placed on cases reported as Mst. Khurshid Begum v. Dr. Khalid Masood and another 1996 CLC 646, Saeed Muhammad v. Mehrullah and another PLD 1996 Quetta 48, Mst. Mumtaz Begum v. Mst. Wazir Begum PLD 1997 Lah. 99, Mian Khadam Hussain. v. Mehboob Ilahi Khawaja and another 1995 CLC 63 and Attiqur Rehman and others v. Muhammad Aslam 1995 CLC 66.

6. On the contrary Mr. Shaukat Khan Turk, Advocate for the contesting respondent, supported the impugned judgment and order and contended that keeping in view the material available on record, learned Rent Controller was quite justified to dislodge the claim of the appellant and reject his application. Having heard the arguments of learned counsel for the parties with reference to the material on record and the case‑law cited at the bar I find myself in agreement with learned counsel for respondent that there is absolutely nothing on the file to prove that respondent No.1 is guilty of subletting the suit premises in favour of his servant Muhammad Nafees respondent No.2 or that the suit shop is needed by the appellant in good faith for the use of his grandsons. It is an established principle of law that a person who asserts/alleges a particular fact and wants the Court to believe that such fact exists he shall be required to prove the existence of such a fact. In the instant case good faith and bona fide are to be established by some cogent and convincing evidence; once the tenant is able to put a dent in such claim then it becomes all the more necessary to establish such fact and it is cumulative effect of the evidence that is to be assessed objectively and collectively to decipher bona fide need and if there is enough material that reflects adversely then the ejectment cannot be granted. All facts contributing to reflect adversely on the good faith of the landlord and the consensus of the opinion by the superior Courts also appears to be that if the good faith is not established by tangible evidence then eviction cannot be allowed. In the present case the element of good faith is wanting. Material has been placed on the file to show that during the ejectment proceedings certain shops had been transferred by the appellant in favour of his grandsons in order to enable them to carry out business and earn their livelihood. So far as the question regarding default in payment of rent is concerned, nothing has been produced in support of the accusation. The mere assertion of the appellant that the suit shop has been sublet without his consent; that the suit premises are required for personal need or that respondent is rent defaulter, without a positive attempt on his part to substantiate the same, is of no consequence. Musharaf Khan v. Sherin Khan and another 1995 SCMR 1661, Muhammad Yousaf v. Mrs. Noor Jehan Bi 2000 CLC 1252, Muhammad Roshan Khan v. Ishtiaq Ali 1995 CLC 702, Gayoor Alam v. Muhammad Jamil 1983 CLC 1274 and Muhammad Zaman v. Hasbun Nisa 1991 SCMR 1307.

8. The case‑law cited on behalf of the appellant is distinguishable and needs no separate discussion. In the mentioned ruling the premises were found to have been required in good faith for personal use whereas the element of good faith is conspicuously missing in the present case and the other allegations levelled against the respondent, have not been satisfactorily proved. In the result and for the foregoing reasons, finding no substance in this appeal I dismiss the same with no order as to costs. Q.M.H./M.A.K./414/P Appeal dismissed.