1986 PLP 395 (CLC)

SALEEM AKHTAR, J.‑‑The respondents Nos. 1 to 6 purchase property bearing No. 5/1129 Ward 'A' Sakrand Road, Nawabshah from Haji Khan and Mashooq Ali Khan in June, 1979. The appellant has been a tenant in respect of a shop in the said premises on payment monthly rent of Rs.65. The respondents Nos. 1 to 6 being the new landlords issued a notice under section 13‑A of Sind Urban Rent Restriction Ordinance which according to the respondent landlord was received by him but was not replied. The respondent landlord filed by ejectment application against the appellant and respondent No. 7 on the ground that the rented premises consists of a shop and a small behind it and the appellant has sublet the back portion of the premises to Noor Badshah, the respondent No. 7 without the consent of the previous owner as well as the respondents Nos. 1 to

6. It was alleged that the respondent No. 7 was first using the small room, but he had demolished the partition wall and is using the entire premises for the hotel business and the appellant has closed down his business. It was also pleaded that the respondents Nos. 1 to 6 require the shop in question bona fide for their personal use as the shop in which they are carrying on their business is neither suitable, nor adequate for their business. The appellant filed written statement admitting the receipt of notice under section 13‑A, but denied its legality. It was pleaded that the appellant is paying rent to the respondent /landlord. The appellant pleaded that he is carrying on business in the premises and has not sublet it. It was alternatively pleaded that the subletting if any was with the previous consent of the landlord and cannot be objected by the respondents Nos. 1 to

6. In reply to the claim of respondents Nos. 1 to 6 hereinafter referred as the. respondents for bona fide use and occupation, it was pleaded that the respondents are occupying a shop which is sufficient, suitable, and adequate for their business requirement. The application was termed as fictitious, frivolous and mala fide. The written statement was filed jointly by the appellant and respondent No.

7. After recording the evidence, the learned Controller by the impugned order granted the application for ejectment on the ground that it is bona fide required by the respondents. Issue relating to subletting was answered in the negative. Before considering the merits of the case and the contentions of the parties it would be proper to dispose of the appellant's application bearing number Civil Miscellaneous Application No. 2171 of 1984 filed under sections 20 and 21 of the Sind Rented Premised Ordinance on 29‑11‑1984. By this application the appellant seeks to produce additional evidence to show that the respondents are occupying more than one shop, and therefore, they do not require the premises bona fide, as they have sufficient accommodation in their possession. It has been stated in the application that after the institution of appeal to Qazi Muhammad Alam came to their knowledge and this fact was not disclosed by the respondents in their ejectment application or in their evidence. According to the appellant he came to know this fact from Exh.17 produced in Case No. 42 of 1979 (which is subject‑matter of First Rent Application No. 463 of 1980) an ejectment application filed by the respondents against Noor Badshah, who is also respondent No. 7 in this appeal. In this regard the learned counsel for the appellant contended that Exh.17 in Rent Case No. 42 of 1979 is a relevant document to establish that four shops are occupied by the respondents. Exh.17 consists of several receipts issued by Qazi Alam to the respondents. There are receipts in the name of Din Muhammad for Rs.37, Nazir Ahmad for Rs.150 and Bashir Ahmed. It seems that all these persons who are respondents and owners of the premises in dispute are running their business in the shop rented out by Qazi Alam. The appellant wishes to produce this document to show that the respondents are running business in four separate shops but in the application as well as in their statement they have stated that they have only one shop. The respondents have stated that they are running business jointly in one premises. Their business is joint and not separate. The learned counsel for the respondents opposed the application on the ground that it is belated and has been filed with a view to fill in the lacuna in the evidence. According to the appellant he came to know this fact after the institution of the appeal from the record of Case No. 42 of 1979 filed against the respondent No.

7. The appellant has avoided to give the exact date of his knowledge as the appeal was filed in the year 1981. The respondent No. 7 was a party in both the rent cases. He had filed his written statement jointly with the appellant. The respondent was examined before the Controller and Qazi Alam was also examined on behalf of the respondents. The appellant and respondent No. 7 had full opportunity to cross‑examine the witness. The Advocate representing the appellant and respondent No. 7 in both the cases was the same. Both the matters were proceeding simultaneously, sometime on the same dates and sometime on different dates during 1980‑81 Both the premises are situated nearby in a small town. Therefore, is cannot be believed that the appellant did not have the knowledge that the respondents were occupying more than one shop. Mr. Mushtaq Memon contended that from outside all the shops appear to be one shop, but from inside separate, and separate businesses are being carried by the respondents. The respondents have stated that they are carrying on business jointly which is vast and of different nature. In these circumstances the appellant had full opportunity to cross‑examine all the relevant witnesses and from surrounding circumstances and facts stated above it can safely be assumed that the additional fact the appellant wants to introduce should have been within his knowledge. He had full opportunity to cross‑examine Din Muhammad and Qazi Alam and to lead evidence in rebuttal and prove that the respondents are tenants of four shops. The appellant having failed to avail these opportunities cannot be permitted to patch up the evidence and fill in the lacunas. From the facts and circumstances of the case it is obvious that the facts sought to be introduced now, if not within the knowledge of the appellant could be known if he would have acted with due diligence and not negligently. It is pertinent to note that it is not the number of shops but the accommodation in possession of the respondents which is relevant. In my opinion as discussed below the additional evidence is not necessary for determining the controversy involved in the appeal. This application is, therefore, dismissed. On merits the learned counsel for the appellant contended that the respondents have failed to establish their bona fide personal requirement and mere desire is not sufficient to establish it. It was further contended that burden is upon the landlord to establish not only his bona fide, but also his requirement and the proof should be confined to one that has been pleaded by the landlord. According to the learned counsel the requirement pleaded is different from the requirement sought to be proved by evidence. To substantiate his contention the learned counsel for the appellant has referred to the pleadings of the parties and the evidence recorded by the Controller According to the appellant, in the ejectment application, the respondents have sought ejectment on the ground that they require the shop in question bona fide for their personal use as the shop in which the are running business is not adequate and sufficient to meet their business and requirement. The learned counsel has also referred to the statement of Din Muhammad the respondent No. 1, that the owner of the premises in which the respondents are presently carrying on their business is Pressing hard for eviction. Reference was also made to the evidence of Qazi Muhammad Alam the landlord of the respondents who has corroborated this statement. By referring these statements the learned counsel for the appellant contended that the respondents have changed their ground for ejectment and instead of personal requirement they have proved that they are being evicted from the premises and therefore, they want to shift to their own premises. These two pleas are surely different pleas. Mr. A.Q. Halepota has contended that the respondents have maintained their plea mentioned in the ejectment application and have not changed it, but in evidence to strengthen their plea they have introduced some additional facts also. The learned counsel also referred to the evidence of Din Muhammad to show that he had clearly stated that the disputed premises is required in good faith for personal use because the appellants are carrying on business at a large scale in the premises which is old and congested. Mr. Halepota has pointed out that this statement has not been challenged in cross‑examination. The thurst of cross‑examination seems to be that the respondents have an open space in front of their shop belonging to Municipal Committee but no cross‑examination seems to have been directed to challenge the existing accommodation and the magnitude of business carried by the respondents. P.W.2 has stated the same facts and that the respondents are keeping their goods on open space of Municipal Committee Nawabshah. Again the same facts have been stated by Gul Muhammad P.W.3. He is related to Din Muhammad. In cross‑examination he stated that the respondents have three or four businesses namely Pan Beeri and Ice business, they are running their business in one shop and in a cabin and their articles are lying outside the shop. Mashooq Ali Khoja who is the previous owner of the disputed premises stated that the respondents are hard pressed for accommodation as considering the business carried on by them, the existing shop is not enough for them. In his affidavit of evidence the appellant has attacked the bona fides of the respondents' claim for personal requirement. However, it has been stated that they had demanded exorbitant rent and asked the appellant to pay it or quit the premises. The respondent No. 7 who was opponent No. 2 in the rent case had also filed his affidavit of evidence, and stated the same fact. The appellants' main object had been to establish that the rent was paid regularly, the shop has not been left or vacated by the appellant, nor sublet to the respondent No. 7, nor the wall between the shop and the godown has been demolished and that the claim of personal requirement is not bona fide as the main intention of the respondents is to increase the rent. Muhammad Bux has stated that the respondents do not require the premises for their own use. This vague statement though unchallenged cannot have much weight against the positive evidence produced by the respondents. The respondents from the very beginning have been stating that they require the premises for their own use. It is established that they have a joint business which is very vast in nature and is run in a rented premises. According to Mr. Memon the respondents are running their business in four shops. This contention by itself establishes that the business run by the respondents is not small or insignificant but is varied and vast in nature. There is no evidence on record to establish that all the respondents are carrying on their business separately, independently and have no concern with each other. The plea regarding their landlord's pressure to vacate the shop is completely a new plea and cannot be considered for the purpose of granting ejectment, but the question remains whether the respondents have established their bona fide requirement. As the statement made on oath with regard to personal requirement is in consonance with the pleadings and has remained unchallenged and unshaken and further that two more witnesses have supported the respondents' claim, and there being no evidence on behalf of the appellant or respondent No.7 in rebuttal in view of P L D 1976 Kar. 836 the respondents have succeeded in establishing their claim for bona fide use and occupation. The learned counsel contended that the respondents have not given full details of their business, the existing accommodation in their possession nor the respondents have stated which of the six persons will carry on business and of what nature, therefore, they have failed to establish their plea. The evidence of the parties has already been discussed above and need not be referred again. Suffice to say that the respondents have proved their plea. The vast nature of business has been established which according to the respondents cannot be accommodated in the existing shop. The respondents have been carrying on business jointly and all of them require the premises. The learned counsel has referred to S. Muhammad Ali v. Mst. Aisha 1984 C L C 2332. In this case the landlord had stated that he was living in a rented house, but no evidence to substantiate this plea was produced, therefore, ejectment was refused. In the present case the respondents have produced sufficient evidence to show that they are carrying on their business in a rented premises and require the premises for their personal use. The learned counsel for the appellant contended that the claim of the respondents lacks bona fides, and therefore, no ejectment can be granted. It was contended that burden is on the respondents to establish good faith. In this regard the learned counsel has referred to the fact that in their notice under section 13‑A, dated 6‑8‑1979 the respondents have not stated that they require the premises for their personal use although they allege to have purchased it for their business purpose. The learned counsel for the appellant has referred to Mst. Qamar Jehan v. Mukarram Ali 1982 C L C 1053. In this case it has not be in held that the omission to state in a notice under section 13‑A that the premises is required for personal use amounts to lack of bona fides. The facts of this case are completely different. On evidence it was established that the landlord had demanded higher rent by notice, but did not mention the fact that he required the premises for personal use, and it was further established that the ejectment proceedings were instituted as the tenant was not agreeable to meet the landlord's demand to pay higher rent. In these circumstances reference to notice was relevant to determine lack of bona fides. This case is, therefore, of no assistance to the appellant. The appellant also referred to Muhammad Hussain v. Ghulam Ali P L D 1977 Kar.

285. In this case also no such observation has been made as contended by the appellant. In this case lack of bona fides was established by delay of 5 years in filing the ejectment application, letting out the premises when it fell vacant and further that the plea of personal requirement was an afterthought, as it was not originally mentioned in the application but was added in their margin. These facts together with additional factor that the landlord wanted to enhance the rent and in the notice served on the tenant no demand for personal requirement was made, the bona fides of the landlord were doubted. In the present case, the ejectment application was filed within 71 months of the purchase of the property and service of notices. Mr. Halepota, the learned counsel has contended that the law does not require a notice to be served before filing ejectment application on the ground of personal requirement. In this regard he has referred to Muhammad Sharif v. Bashir Ali P L D 1979 Lah. 123 where it was held that service of notice under section 13‑A is not a condition precedent for ejectment proceedings on the basis of personal need of the landlord. Section 13‑A of Sind Urban Rent Restriction Ordinance deals with question of default in payment of rent. Whereafter transfer, notice under section 13‑A has not been served, the consequences are that if the rent has not been paid by the tenant, he cannot be termed as a defaulter. He will be a defaulter only, if he does not pay the rent within 30 days of the service of notice. This section nowhere contemplates that such notice should be served if the premises is required by the landlord for any personal use. The object of section 13‑A is completely different. It intends to inform the tenant about the transfer of property, and whereabouts of the new landlord to whom he should pay the rent. In Sabu Mall v. Nika Ram 1973 S C M R 185 it was held that language of section 13‑A of the Ordinance makes it clear that "it only deals with one situation, namely, the question of default in payment of rent." And Therefore, ejectment application filed on ground other than default and cannot attract the provision of section 13‑A. However, in the present case, it is not the contention of Mr. Mushtaq Memon that service of on notice under section 13‑A is a precondition for filing ejectment application on ground other than default. He wants only to draw inference from the fact that the respondents though required the premises for their personal use did not mention this fact in their notice. As observed earlier the omission to mention such a fact in such circumstances by itself does not establish lack of bona fide. However, if the landlord is able to establish by cogent convincing and clear evidence, his bona fide personal requirement, such omission may not lead to rejection of his claim. The learned counsel for the appellant then contended that the respondent has not been able to establish that the premises occupied by them are insufficient as no evidence about the nature of their business, the measurements of the existing accommodation and the disputed premises have been given. The learned counsel in this regard wanted to refer to the rent receipts which were filed in a case, which is subject‑matter of First Rent Appeal No. 463 of 1981 to show that the respondents are in occupation of four shops. It has been discussed this earlier that the respondents are carrying on business jointly in a premises which seems to be one shop, but may have been made out of a shops for which rent is being paid by them to their landlord. The learned counsel contends that it has not been stated by the respondents for whom the premises is required. The evidence of the respondents has been discussed above to show that they require the premises for their personal use. The facts that they have a vast business of varied nature and are running it in a rented premises, could with their consistent and unshaken statement that they require it for their personal use, are sufficient to establish their plea of personal requirement. One has to make distinction between cases, where the premises occupied by a landlord is a rented one and he wants to shift in a premises owned by him, and in cases where the landlord is occupying his own premises but wants to shift in the other premises which is also owned by him. Mere statement that the landlord wants to shift from a rented premises to his own premises may not be sufficient to establish his case, because in many cases the premises owned by the landlord may not at all be suitable to accommodate his needs. Therefore, in such circumstances, some evidence has to be led to show that the premises is reasonably required in good faith. But where sufficient evidence is produced to show that the disputed premises is not at all suitable and that the premises owned and occupied by him is sufficient to run his business the landlord's plea may not be granted. The learned counsel for the appellant has referred to Muhammad Yaseen v. Mst. Zubeda Khatoon 1983 C L C

12. In this case the landlord had not given full particulars, nor proved the number of persons for whom the premises in dispute was required, and therefore, mere statement of the landlord was not considered sufficient to prove the requirement of the persons for whom it was required. The facts in the present case are completely different. The next case cited by the learned counsel is Shafiqur Rahman v. Abdul Ghani 1983 C L C 2020. In this case it was observed that the landlord did not even disclose the dimension and the area of the premises in which he was running an industrial home, in order to substantiate that he could not accommodate 32 students or more in it. In this case there was no basic evidence to establish the bona fide requirement. In the present case there is sufficient evidence to establish this fact and the statement of the respondent has remained unchallenged. The learned counsel for the appellant also referred to Gulla Jan v. Ch. Habib etc. 1983 C L C 1149, where it was observed that the onus to prove that the vacant shops in the possession of the landlord are not suitable for his requirement lies on him and the landlord has to show that the premises from which he is seeking the eviction of his tenant is more suited for the business than those already in his possession. In this case it was established in evidence that the landlord's sons were working in other shops and two shops were lying vacant. This is not the case here. In any event the observation made in this judgment will precisely be more relevant if the landlord is the owner of the premises in which he is carrying on business. In that event the landlord should establish that the disputed premises is more suited for him as compared to the premises in his possession and owned by him. But where the landlord is carrying on his business in a rented premises unless it is established that the disputed premises owned by the landlord cannot reasonably be used for his alleged purpose and if he has otherwise proved his requirement, merely because he has not given full particulars and area of the disputed premises or one in his possession, it may not lead to the inference that the landlord has failed to prove his requirement. Such determination is always dependent on facts and circumstances of each case. In this particular case the respondents were only to show firstly, that they are carrying on business in rented premises and secondly they reasonably and in good faith require the disputed premises in which business can be run by them. These facts have been established by the respondents. In these circumstance the contention of the learned counsel that non‑disclosure of the accommodation available to the respondent is fatal to the respondent; case cannot be entertained. According to the learned counsel for the appellant the respondents have filed a plan with their counter‑affidavit from which it is clear that they are in possession of a godown measuring 37 x 21 ft. in the building in which the disputed premises is situated; therefore, the respondent's requirement is not real but artificial. There is no evidence on record to show that the godown can be used for running the business carried on by the respondents. The learned counsel contended that as full facts regarding the accommodation available to the respondents have not been mentioned either in the application or in the affidavit of evidence, the application for ejectment was liable to be dismissed for lack of bona fide. In this regard the learned counsel has referred to PLD 1983 Lah. 425 where it was held that if the landlord does not disclose that other premises is in his occupation and is not suitable for his need then such conduct adversely reflects on his bona fides and good faith. Reference has also been made to Shakir Hussain Chishti v. F.A. Breganza P L D 1984 Kar. 141 wherein the ejectment application the landlord had not disclosed that he also owned another flat in the same urban area, and it was not established in evidence that such flat was either occupied by some one else or not suitable for his own accommodation, it was held that in view of section 13(3)(a)(i)(b) of Sind Urban Rent Restriction Ordinance, the application was rightly rejected. To the same effect is the observation in 1983 C L C 1409; 1983 C L C 2511. Mr. Halepota, the learned counsel for the respondent has contended that the authorities cited on behalf of the appellant are not relevant as they are based on section 13 of the Sind Urban Rent-Restriction Ordinance, which imposes an obligation on the landlord to disclose such facts but such obligation is not cast by section 15 of the Sind Rented Premises Ordinance, 1979. In this regard reliance has been placed on Muhammad Asif Khan and another v. Mubarak Ahmad P L D 1982 Kar. 557 where the distinction between section 15 of the Sind Rented Premises Ordinance and section 13(3)(1)(a) of Sind Urban Rent Restriction Ordinance was noted. Section 15 of the Sind Rented Premises Ordinance provides that if the Controller is satisfied that the landlord requires the premises in good faith for his own occupation or use or for the occupation or use of his spouse or any of his children, he may order ejectment of the tenant. In Sind Urban Rent Restriction Ordinance a landlord could apply to the Controller for ejectment of a tenant in case of non‑residential building, if he requires it in good faith for his own use or for the use of his male children provided he is not occupying any premises in the same urban area suited for the purpose of his business and he has not vacated such a building or rented land without sufficient cause after the commencement of the Ordinance. Therefore, under the Ordinance of 1959 besides the fact that the landlord requires the premises for his own personal requirement, it was necessary to establish that he was not occupying any building, suitable for his need, nor he has vacated any such building. These two pre‑conditions are missing in section 15(2)(vii) of the Sind Rented Premises Ordinance. In fact section 15(2)(vii) applies to residential and non‑residential building and the landlord has only to establish that he requires the premises in good faith. In this legal position if the landlord does not disclose such facts on his application it cannot be struck down. However, if it is established that the landlord is occupying premises of his own in the same urban area which can meet his requirement or such premises is lying vacant and is suitable for his need, then it will adversely reflect on the bona fides of the landlord. The respondent's counsel has also referred to Arshad Umar v. Begum Nazrul Askari P L D 1985 S C 138 where it was observed as follow: "We note that subsection (ii) of section 15 of the Sind Rented Premises Ordinance, 1979 provides that the Rent Controller can direct the tenant to put the landlord in possession of the premises, if he is satisfied, inter alia, that the landlord requires the premises in good faith for his own occupation or for the occupation of his children." In the absence of any precondition laid down by section 15 of Sind Rented Premises Ordinance non‑disclosure in the application that some other premises is in the occupation of the landlord will not be a bar to the maintainability of the application. The learned counsel for the appellant also contended that none of the sons of Din Muhammad who are alleged to be working jointly have been examined. In the present case the respondents are co‑owners, they have filed ejectment application, and have examined one of the co‑owners. It is not a case, where the father has filed application for the personal requirement of his son. It is not necessary in law to examine all the landlords or the sons for whom the premises is required. Reference can be made to 1981 S C M R 844 and 895 and P L D 1985 SC

138. In the result the appeal is dismissed. The appellant is allowed three months time to hand over vacant possession of the disputed premises to respondents Nos. 1 to

6. A.A. Appeal dismissed.