2001 PLP 1287 (SCMR)

MUHAMMAD BASHIR JEHANGIRI, J.‑‑‑Syed Jan Muhammad and Syed Sardar Muhammad appellants have filed the above appeal with the leave of this Court against the order of a learned Single Judge of the High Court of Balochistan, Quetta, accepting F.A.O. No.29 of 1996 in a rent matter whereby‑ the order of eviction passed by the learned Rent Controller against the tenant‑respondent was set aside and the appellants/landlords were non‑suited.

2. Brief facts, as gleaned from the leave granting order, are that the appellants/landlords filed eviction application seeking ejectment of the respondent/tenant from the demised shop. The main ground taken in the ejectment application was that of the personal need of the two sons of the appellants/landlords. The learned Rent Controller decided the issue of requirement for the personal use in favour of the appellants/landlords and ordered the eviction of Syed Abdul, Khair respondent/tenant by an order dated 25‑4‑1996. Aggrieved by the said order, Syed Abdul Khair respondent/tenant filed an appeal before the High Court of Balochistan, Quetta, which was accepted by the learned Judge in Chambers of the High Court on 6‑8‑1996; the order of the learned Rent Controller was set aside on the ground that "the witnesses produced by the landlords had contradicted his stand inasmuch as they did not even know the names of the sons of the appellants/landlords, for whom the shop in question was required bona fide" and further; that the appellant/landlord, has stated in the witness‑box, that the shop was required by him for his own personal occupation as well as for the use of his sons and that he had not stated at all that the shop was required in good faith for the use and occupation of his sons, namely, Syed Naimatullah and Asmatullah nor the sons had entered in the witness‑box to substantiate the plea.

3. Leave to appeal was granted to consider whether the learned Judge in Chambers of the High Court had not correctly appreciated the evidence in disallowing the ejectment on the ground of personal need by the appellants.

4. The only ground urged by Haji Shakil Ahmad, learned Advocate Supreme Court appearing on behalf of the appellants before us was that the appearance of the sons of the landlords in the witness‑box was not a sine qua non for the proof of the bona fide need of the landlords. In support of this proposition, the learned counsel had rightly placed reliance on three authorities of this Court: (1) M. Muhammad Sharif v. M.S. Sultan (1981 SCMR 844), (2) Muhammad Nasar v. Muhammad Arshad and another (1981 SCMR 894) and Zahoor Din v. Mirza Ayub Baig (1981 SCMR 1081).

5. None had appeared on behalf of the respondent to support his case.

6. In the first‑mentioned two authorities, this Court has already set at rest the controversy raised in this appeal holding that the non‑appearance of the son/sons of the landlords in the witness‑box was not at all a sine qua non for grant of relief to the landlords on the plea of his bona fide personal requirement for the use by his son/sons. In the third precedent of Zahoor Din (supra), this Court has gone so far as to hold that where in the ejectment application, the landlord even does not mention that he needed the disputed portion of the premises for the residence/use of his son who was to be married soon could not be fatal to his case. The ratio decidendi in the third precedent was that clause (a) of subsection (3) of section 13 of the West Pakistan Rent Restriction Ordinance (VI of 1959) permits a landlord to apply for the ejectment of his tenant, if he requires the residential building in good faith for his own occupation or for the occupation of any of his children. In this context, it was observed that the requirement of his children is really in the nature of an extension of the personal requirement of the landlord himself, as the property does not belong to his children and yet the law permits him to ask for its vacation, if it is needed for their occupation in good faith. According to the learned Judge, it follows, therefore, that even if in the ejectment application, it is not specifically stated that the requirement is for the occupation of any of his children, a landlord would still be entitled to spell out this need in evidence. In the same precedent, the learned Judge held that the objection raised on behalf of the tenant that the son for whose marriage, the extra accommodation was needed, was not examined as a witness was misplaced inasmuch there is no such requirement in law and the need of accommodation will have to be determined in the facts and circumstances of each case. We reiterate the principle enunciated in the precedents of M. Muhammad Sharif, Muhammad Nasar and Zahoor Din supra that there is nothing in the Sindh Rented Premises Ordinance (XVII of 1979) against grant of eviction of the tenant of the landlord on the ground of the latter's bona fide need for his or his son/sons bona fide requirement of the demised premises if the son/sons have not been examined in Court.

7. Having disposed of this objection, we now turn to the evidence led at the trial. We find that, besides the landlord himself, there was the evidence of his witness Abdul Zahir (A.W.2) and Abdul Ahad (A.W.3) to the effect that at least so far as Abdul Zahir, has in categorical terms stated that the landlord intended to get the shop vacated for his personal bona fide need. In the cross‑examination, Abdul Ahad (A.W.3) stated in categorical terms that the landlord was carrying on his business in a rented shop and further admitted that the "Sailan ur un kay Bachay"are carrying on business in Quetta city and are the tenants of one Sadiq Ali landlord. The observations of the learned Judge in the High Court that it was not shown clearly by his witnesses, as to the bona fide requirement of the premises, for the use of his sons clearly proceed in disregard of the accepted facts, of which the judicial notice, should have been taken that if the two sons of the landlord were carrying on business in the rented premises, it was the legal right of the landlord to have them settled in business in his own shop. Even the witnesses were not cross‑examined on the point of bona fide requirement of the shop for the use of his sons. Had it be so done, the two witnesses would have certainly answered the question particularly Abdul Ahad (A.W.3). In these circumstances, the finding of fact recorded by the learned Rent Controller in this behalf could not have been reversed in that there was not sufficient evidence in support thereof. We consider, therefore, that this was indeed a case in which the landlord had succeeded in establishing his bona fide personal requirement of the shop for the purpose of accommodation of his sons.

8. There is no support on the record for the assertion or allegation made on behalf of the tenant that the landlord merely wanted to enhance the rent of the shop. In any case such an allegation must fail once it is found that the landlord had succeeded in establishing his bona fide personal need. Conceding for a while that it so even then it does not militate against the claim of the landlord.

9. For the foregoing reasons, we would accept this appeal, set aside the impugned judgment of the learned High Court and restore that of the learned Rent Controller. The tenant is allowed four months' time to deliver the vacant possession to the appellants‑landlords, failing which the writ of procession shall be issued without recourse to due execution proceedings and with the police aid if required. The respondents shall continue to deposit/pay the rent of the premises as before. Q.M.H./M.A.K./J‑11/S?????????????????????????????????????????????????????????????????????? Appeal allowed.