1985 PLP 422 (MLD)

2. The facts leading to this appeal, briefly stated, are that the appellant is the landlord of Shop No. 5-A, Sector 36-D, Bismillah Market, Landhi Colony, Karachi. The respondent is a tenant in respect thereof. The appellant on 2-10-1982 filed an application for ejectment on the ground that the respondent did not pay the rent since January, 1980 and that the appellant requires the shop in occupation of the respondent for the purpose of storing the raw materials for sweetmeat, which business he is carrying jointly with his son Muhammad Sami. The present shop is very small and has become insufficient for his requirement. The respondent in his written statement denied all the allegations levelled against him and stated that the appellant has three shops in Bismillah Market, Landhi Colony, Karachi. It was also mentioned by the respondent in his written statement that the monthly rent was Rs.70 only and not Rs.75 as alleged by the appellant. .

3. The learned Rent Controller framed the following issues:- (1) What is the rate of rent? (2) Whether the opponent has committed default in payment of rent? (3) Whether the applicant requires the suit premises for his personal bona fide use? (4) What should the order be?

4. After recording the evidence of the parties and their witnesses the learned Rent Controller dismissed the said application for ejectment, against which this appeal has been filed in this Court.

5. Mr. Zulfiqar Ali, the learned counsel for the appellant challenged the impugned judgment on all the issues.

6. It is an admitted position in the case, which has been candidly conceded by the learned counsel for appellant before me, that the appellant did not issue any receipt for the payment which he received from respondent since the commencement of the tenancy. It has come on record that the trouble started between the parties somewhere in the middle of 1980. The respondent, therefore, instead of paying the rent to the appellant in cash remitted the same through Money-Order. The respondent has produced one such Money Order for the month of June, alongwith his written Statement which was returned by the appellant. The rent for the month of June, 1980 and onwards was deposited in the Court. The learned Rent Controller after examining the evidence of the parties has rightly come to the conclusion that the rate of rent was Rs.70 per month and that the respondent has committed no default in payment of rent.

7. However, as regards the issue about the bona fide requirement of the premises in question, I do not find myself in agreement with the learned Rent Controller. The learned Rent Controller has in fact misread the evidence which is clearly borne out from the following observation: "From the evidence as brought on the record, it is an admitted fact that the applicant is jointly doing business of sweetmeat with his son Muhammad Sami and that the applicant has constructed Karkhana over the Shop No. 9-A where the sweet is being prepared. The applicant's attorney has got Shops No. 9-A and 10-A. Besides this, the applicant has failed to examine his son for whom he requires the suit premises. As such I hold that the applicant has failed to prove that he requires the- suit premises in good faith as alleged."

8. As it would appear from para.3 of the application, it was stated by the appellant that he required the premises for his personal bonafide use and occupation. The premises was not required for the use of his son as observed .by the learned Rent Controller. The observations, in consequence, made by the learned Rent Controller that the applicant has failed to examine his son for whom he requires the premises is clearly a misreading at evidence. Even otherwise, the production of son in the witness box cannot be held to be fatal as held in several judgments of the Supreme Court. See, for instance, Arshad Umar and another v. Begum Nazrul Askari P I. D 1985 S C 38, M. Muhammad Sharif v. M.S. Sultan 1981 S C M R 844 and Dilshad Muhammad v. Mat. Zubaida Begum 1981 S C M R 895.

9. It was submitted by the learned counsel for the respondent, Mr. Shaukat Mahmood that the appellant owns three shops bearing Nos. 5-A, 9-A, and 10-A. The fact is that only Shop No. 5-A belongs to the appellant from which he has sought the eviction of the respondent. Shop No. 9-A belongs to his son, Sami Ahmed whereas the third Shoo No. 10-A belongs to his brother, Muhammad Asghar. It has further been proved by the appellant that Shop No. 9-A in his occupation is a small one whereas the shop in question is 12 x 24 sq. ft. The learned counsel for the respondent further submitted that the shop in question is too big for the purpose of storing the material required for preparation of the sweetmeat. Once the need is proved to be genuine this aspect is of little importance.

10. I am, therefore, satisfied that the shop in question is required for the bona fide use of the appellant for the purpose of storing the raw material to be utilised in preparing the sweetmeat, which business is being run by the appellant jointly with his son, Muhammad Sami.

11. I. therefore, accept the appeal and set aside the impugned judgment passed by the learned Rent Controller to the extent of bona fide requirement of the premises of the appellant and direct the respondent to vacate the premises within one month.

12. There will, however, be no order as to costs. H. A. K. Appeal accepted.