1990 PLP 1064 (CLC)

This appeal under section 21 of the Sindh Rented Premises Ordinance, 1979, is directed against the order dated 30‑8‑1986 passed by Mr. Oazi Allah Buy, III Senior Civil Judge and Rent Controller (South) Karachi, by which he dismissed the application for ejectment filed by the appellant against ~h~ respondents.

2. The appellant is the owner/landlady of commercial premises constructed on Plot No.O.T.3/118, Old Town Quarters, Karachi, which was occupied by Muhammad Naqi, father/husband of respondents as tenant. After the purchase of the said premises the appellant served Muhammad Naqi (since dead) with a notice under section 18 of the Sindh Rented Premises Ordinance, 1979, calling upom him to vacate the premises as the same was required by her for personal use. The appellant also learnt that said Muhammad Naqi had sublet the premises to some other person. On 23‑7‑1980 the appellant filed an application for ejectment against Muhammad Naqi on the grounds of personal requirement and subletting.

3. The said Muhammad Naqi resisted the application for eviction on various grounds. It was also pleaded by him that he had paid PUGREE at the time of obtaining possession from the original landlord and consequently it was a tenancy in perpetuity. The bona fide personal rquirement of the appellant was also questioned by said Muhammad Naqi. Muhammad Naqi died during the pendency of application for ejectment and thereafter the respondents were brought on record.

4. The parties went to trial on the following issues:‑‑ (i) Whether the rent application is maintainable? (ii) Whether applicant requires the case premises for personal bona fide requirement ? (iii) Whether the opponents have sublet the case premises as alleged ? (iv) What should the order be?

5. The appellant examined herself (P.W.‑1) and then closed the side, while the respondents examined S. Muhammad Zaki (D.W.1), Tahir Akhtar (D.W.2), and Naeem Akhtar (D.W.3).

6. On the assessment of evidence available on record the learned Rent Controller decided all the issues against the appellant, giving rise to this appeal.

7. I have heard Mr. Syed Qutabuddin Ahmad, learned counsel for the appellant and Mr. Rchmat Elahi, learned counsel for the respondents. I have also gone through the record of the case carefully.

8. It was pleaded on behalf of respondents that late Muhammad Naqi had paid PUGREE to the original landlord at the time of obtaining possession and consequently the appellant who had stepped into the shoes of previous landlord A was estopped from seeking his ejectment. Reliance is placed upon the case of Muhammad Hanif v. Mumtaz Ahmad reported in PLD 1986 Kar. 16 wherein following observations were made:‑ "After accepting `Pagri' landlord renders himself ineffectual because he has imparted to the tenant something more than the tenancy rights and acts as helpless spectator when the tenant sells away his `pugree' rights to another tenant and the landlord cannot raise any objection to it but has to agree to change receipt in the name of new tenant for which he gets some additional money."

9. The Sindh Rented Premises Ordinance, 1979, however, does not recognise this institution. The effect of receiving PUGREE was examined by the Supreme Court in the case of Sheikh Muhammad Yousaf v. District Judge Rawalpindi and 2 others, reported in 1987 SCMR 307, and it was observed:‑ "According to the lease agreement the shop had been let out to the tenant‑petitioner for a fixed period of ten years with a right of re‑entry reserved by the respondent‑landlord, but it is not mentioned in the lease deed that the respondent‑landlord had received Rs.11,000 as Pugree from the petitioner‑tenant, although it is so stated by him in his statement before the Rent Controller (page 134 of the Paper Book). However, that being mutual arrangement between the parties, would not debar the respondent‑landlord from instituting eviction proceedings on the ground of bona fide personal need."

10. In the case of Muhammad Ilyas v. Mst. Khursheed Begum, reported in 1989 CLC 506, I had taken the following view:‑ "The appellant has challenged the bona fides of the respondent on the grounds that her husband owns the adjoining shop, which can serve the required purpose, and secondly the shop having obtained by him from the previous owner on payment of Rs.20.tNNl as `PUGREE', it was a lease in perpetuity and he cannot be ejected on the ground of personal requirement. As to the first of his contentions, I have carefully read the evidence of all the witnesses and I think there is no evidence on record to prove that the possession of the adjoining shop is with respondent or her husband. A suggestion was put to Muhammad Naseer (P.W.2) to show that he was running a printing press in the said shop, which suggestion was denied by him. As to the seennd contention about payment of `PUGREE' there is no foundation wh:;sever for it. Even otherwise section 23 of the Contract Act, 1872, makes any such agreement void."

11. This view was reiterated by me in the case of Mst. Wahabunnisa v. Haji Abdul Sattar, reported in 1989 CLC 517, in the following words:‑ "The plea of payment of PUGREE to the late husband of the appellant is not borne out from the record. Even otherwise any transaction of this nature would be violative of law and will not be enforceable under section 23 of the Contract Act, 1872. To this extent I am in agreement with the view taken in Muhammad Hanif v. Mumtaz Ahmad, reported in PLD 1986 Kar.

16. The personal requirement of a widow and the ejectment sought in terms of section 14 of the Sindh Rented Premises Ordinance, 1979, however, cannot be defeated even if this agreement is taken on face value. It may be noted that nobody can opt or contract out of the legal protection. The well‑known case of EA. Evans v. Muhammad Ashraf, reported in PLD 1964 SC 536, can be referred as authority on this subject. Section 14 being a special law introduced for the benefit of widows, orphans, persons of old age and retired salaried employees should be interpreted so as to advance the cause of justice."

12. In this view of the matter the finding recorded by learned Rent Controller on issue No.l is reversed.

13. Clause (vii) of subsection (2) of section 15 of the Sindh Rented Premises Ordinance, 1979, empowers the Rent Controller to order eviction of a tenant if he is satisfied that the landlord required 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. In order to seek eviction of the respondents on the aforesaid ground, the appellant has to establish (i) her genuine present need of the premises which C must not merely be a desire, and (ii) her need must be honest. The real distinction between `desire' and `require' lies in the existence of that need.

14. The plea of personal requirement was raised by the appellant in para.3 of her application for ejectment in the following words:‑ "That since the applicant had purchased the premises in question for her personal use for running a ‑shop, she had required the opponent to hand over its possession in her first letter and even in subsequent letters, but the opponent' has denied her claim and refused to vacate the same, hence this application."

15. No doubt the appellant did not give any details about the proposed business which she intends to carry on in the disputed premises, as she was not obliged to do so in view of weighty observations made by the Supreme Court in cases reported as Mst. Tohced Khanum v. Muhammad Shamshad 1980 SCMR 593, and Mst. Saira Bai v. Syed Anis‑ur‑Rehman 1989 SCMR 1366, but in her evidence also, she simply reproduced the averments made in the application for ejectment, which in my view was not sufficient to establish a particular fact. The onus to prove plays an important part in the discussion of evidence and the arriving at of a conclusion on the basis thereof. It is contended that due importance should have been given to repeated demands made by the appellant during the course of exchange of notices. Certainly evidence ‑of this kind is by no means conclusive. One should bear in mind that any number of repetitions will not be sufficient to discharge burden placed upon a particular party. While considering the evidence as a whole and arriving at a certain conclusion on the basis thereof, there are three things which are kept in view; the volume of evidence, the weight of the evidence and the probability of evidence. It is the cumulative effect of all the three aspects of the evidence that finally determines a certain question of fact. There are certain facts and circumstances in this case which are not in dispute:‑‑ (i) That the commercial premises is required by the appellant for her own use; (ii) That the appellant is an old lady of about 70 years of age; (iii) That the appellant is a Purdah‑observing lady; (iv) That the appellant is engaged in household work. (v) That the appellant is an illiterate lady; (vi) That the appellant has got no past experience of business; (vii) That Usman Sajan, husband of the appellant is having a shop of goldsmith in Sarafa Bazar, Karachi; (viii) That the disputed premises is not required by the appellant for the use of her husband or children; (ix) That the disputed premises is situated in commercial area in the heart of city.

16. All these factors when combined together disentitle the appellant to get the premises vacated. The respondents who have established their business cannot be thrown in street on such a vague evidence of personal need. A landlady has to satisfy not only that she was acting bona fide but also that her request for requirement was reasonable.

17. The ground of subletting has also got no force. Paras, Nos.6, 8, 9, 10 and 12 of the affidavit‑in‑evidence filed by S. Muhammad Zaki (D.W.1) are self explanatory. The tenancy and partnership in business cannot be combined together.

18. No case for interference is made out and the appeal is accordingly dismissed with no order as to costs. I‑l.B.T./F‑124/K Appeal dismissed.