P L D 2000 Karachi 41 (PLP)

Dates of hearing: 1st, 3rd and 4th June, 1999 Respondent/landlady filed Rent Application No. 16 of 1998 in the Court of 1st Senior Civil Judge and Rent Controller, Mirpurkhas under section 15 of the Sindh Rented Premises Ordinance, 1979 for ejectment of appellants/tenants on the ground of default in payment of rent and for personal bone fide use of her son. The appellants/tenants filed their reply challenging both the grounds taken by the respondent/landlady. After recording evidence and hearing both the parties the learned Rent Controller came to the conclusion that the appellants/tenants had not committed wilful default in payment of rent; however, he held that the respondent/landlady required the said shop for personal bona fide use of her son and by order dated 7-4-1999 directed the appellants/tenants to hand over vacant possession of the shop within one month.

2. Being aggrieved by the Rent Controller's Order dated 7-4-1999 the appellants/tenants have preferred this appeal against the finding of the Rent Controller that the premises in question are required for the personal bona fide use of the respondent/landlay's son. Mr. Yousuf Leghari, learned counsel for appellant, challenged the Order of the learned Rent Controller on the following grounds:-- (i) The landlady had not given details of the business her son intended to do in the premises in question. (ii) Mr. Ikramuddin, husband of the landlady was not a duly constituted attorney at the time of filing the Ejectment Application and as such the Application for ejectment was incompetent. (iii) The landlady had admitted that the appellant/tenant was a very old tenant who had established his business in the premises in question and the Rent Controller ignored this aspect while deciding the Ejectment Application. (iv) The son of the applicant was in occupation of a shop where he was doing business and as such the requirement of personal use was not bona fide. (v) When the Rent Controller had disbelieved the landlady/applicant with regard to default in payment of rent it should have been cautious while considering the question of bona fide of the landlady. (vi) The value of the shop had increased and Rs.5 lacs could be fetched as advance deposit. The landlady had asked the appellant to pay the said amount as advance deposit and on the appellant's failure to do so the ejectment application was filed which shows mala fide on the part of the landlady.

3. Mr. Leghari cited: (a) 1990 ALD 479(2); (b) 1992 SCMR 115, (c) 1991 SCMR 2042, (d) 1987 SCMR 1768, (e) 1983 SCMR 302 and (t) 1987 SCMR 162 in support of his arguments.

4. In reply to the aforesaid arguments, Mr. Hakim Ali Siddiqui, learned counsel for the respondent, submitted that it was not necessary to give the details of the business the son of the landlady was going to carry on in the premises, the landlady's son was doing business in a rented shop and wanted to shift to his mother's premises and accordingly the landlady had proved the bona fide requirement of the premises by bringing on record the evidence of her husband and son. In support of his contention he cited 1989 SCMR 1366, 1993 SC-MR 67, 1988 SCMR 819, PLD 1985 SC 38 and 1993 SCMR 1559.

5. I have heard the arguments of learned counsel of both parties, perused the record and proceedings of Rent Application No. 16 of 1998 filed by the respondent/landlady.

6. The arguments of Mr. Yousuf Leghari, learned counsel for appellant, that the application for ejectment was incompetent because the landlady did not give details of the business her son intended to do is not tenable. It has been consistently held by the Honourable Supreme Court of Pakistan that it is not necessary for the applicant/landlord to state in his application the nature of the business he intends to do. He only has to state those facts which prima facie show that the requirements are according to law and has been made in good faith (Mst. Saira Bano v. Syed Anisur Rehman 1989 SCMR 1366, 1469). Further, it is. sufficient if the nature of the business is stated in the affidavit in support of the application (Khawaja Imran Ahmed v Noor Ahmed 1992 SCMR 152 1155).

7. The argument that Mr. Ikramuddin, husband of the landlady was not a duly constituted attorney of the respondent/landlady is malicious and is contradicted by the evidence on record. No such objection was taken by the appellant/tenant in the written reply filed by them before the learned Rent Controller. Further, a perusal of the copy of the general power of attorney executed on 4-11-1985 by the respondent/landlady in favour of her husband Mr. Ikramuddin, which was produced as an Exhibit in Court clearly states that the Attorney has power to prosecute or defend any suit, complaint, application, petition or any proceedings before any Court or authority relating to the property in question. The objection raised is therefore, rejected as baseless.

8. The fact that a person has been a tenant of a landlord for a very long period of time does not under any provision of law or principle disentitle the landlord from filing an application for ejectment if he/she requires the premises for his/her bona fide use. The contention has no force and is accordingly rejected.

9. Both, the husband/attorney of the landlady and her son stated in their evidence that the son was doing business in a rented shop and would shift his business to the shop in question as it was located in a better place and suited to his business. This position was admitted by the appellant/tenant in his cross?-examination when he stated that "Arif Kamali is running his business in a rented shop in Maqbool Center which is property of Mukhtar Ahmed Shah". The learned counsel for appellant was not able to show any law or any reported judgment putting a fetter on the landlady from- filing an application for ejectment for personal bona fide use in case he/she is occupying rented premises. This argument also does not hold ground.

10. The respondent/landlady had filed ejectment application on the ground of default in payment of rent and for personal bona fide use. The learned Rent Controller after perusal of the evidence came to the conclusion that the appellant/tenant had not committed default in payment of rent but this does not mean that if the landlady through evidence proves her bona fide need it should not be disbelieved. To succeed in an application for ejectment of a tenant, the landlord has only to prove that he requires the premises for personal use and that his need is bona fide. The only fact which would disentitle a landlord to such relief would be a case where he is in possession of other equally suitable shop in the same locality or had rented out a shop after the institution of the ejectment case and has contumaciously concealed the fact in his application or statement at the trial Qamaruddin v. Hakim Mehmood Khan 1988 SCMR

819. The husband/attorney of respondent/landlady as well as her son for whom she required the premises filed their affidavits-of-evidence which stated that the son was doing business in a rented shop and would shift his business in the suit shop as it is located in a better place and suits his business. This fact was admitted by the appellant/tenant in his cross-examination when he stated that "it is fact that the suit shop in my possession is a corner shop having roads on both sides. It is fact that shop of Arif Kamali in Maqbool Shopping Centre is inside". The respondent/landlady through her own evidence as well as the admission in the cross-examination of the tenant established the case for ejectment for personal bona fide use of her son. The argument advanced by learned counsel for appellant that the respondent landlady had not fulfilled the legal requirements is accordingly not tenable. It may be added that suggestion of the appellant/tenant that the respondent/landlady had filed the application for ejectment on personal ground for obtaining Rs.5 lacs as deposit was denied by the respondent's husband in his evidence. The evidence of Muhammad Saeed Ghori does not inspire confidence, inter,alia, for the reasons that he admitted close friendship and business relationship with the tenant and enthusiastically stated that the respondent had asked for increase in rent to three or five thousand rupees when the tenant had stated that the demand for increased rent was at Rs.1,000 per month. Further, it has been held by the Supreme Court that demand of enhanced rent does not destroy the personal bona fide requirement of the landlord 1989 SCMR 1366.?

11. In view of various Supreme Court Judgments discussed above, it is not necessary to refer to the case of Abdul Haq Shaikh v. Muhammad Yousaf 1990 ALD 479(2) which is a Single Bench judgment. The case of Muhammad Abdul Latif v. Sheikh Ejaz Ahmed, 1987 SCMR 162 and that of Bashir Ahmed v. Abdul Hameed 1983 SCMR 302 cited by the learned counsel for appellant are not relevant and distinguishable from the facts and circumstances of the present case. The case of Muslim Commercial Bank v. Mian Muhammad Sharif 1987 SCMR 1768, relates to a matter wherein the landlord upon refusal of the tenant to increase the rent immediately demanded vacant possession of the premises without asserting that the premises were required for personal use. This is not the position in the resent case. It is, therefore, not relevant.

12. In light f the above discussion, I am of the opinion that the impugned order dated 7-4- 999 passed by the learned Rent Controller, Mirpurkhas in Rent Application No 6 of 1998 is in accordance with law and does not require any interference. However, in spite of clear facts on the record of the case and the p law in favour respondent/landlady, the appellant submitted lengthy arguments on three days which were patently not necessary. The appeal is accordingly, dismissed wit special costs of Rs.10,000 to be paid to the respondent/landlady. The appellant is directed to hand over peaceful vacant possession of the shop premises wit in 30 days of the announcement of the judgment. C. M . A. /M4468/K ?????????????????????????????????????????????????????????????????????????? Appeal dismissed