1998 PLP 1273 (CLC)

Abdul Latif A. Shakoor for Respondent. Date of hearing: 24th November, 1997 This is an appeal under section 21 of Sindh Rented Premises Ordinance, 1979, (hereinafter called the Rent Ordinance) directed against an order, dated 21‑5‑1995 passed by IIIrd Senior Civil Judge and Rent Controller, Karachi Central, in a Rent Case No.874 of 1993 Abdul Karim Maniya v. Haroon Nara and another whereby an application under section 15 of Rent Ordinance was allowed on the ground of personal requirement in respect of the Shop Premises No. 12, Building No. A‑1, Jetpur Square, Nasirabad, Federal 'B' Area, Karachi, in favour of the respondent/applicant. Brief facts of this case are that the respondent Abdul Karim filed eviction application under section 15 of Rent Ordinance against the appellant and another on the ground of default in payment of rent (ii) having handing over possession of shop premises to opponent No.2 Ghousia Bakery and (iii) required the shop premises in good faith for personal use of respondent's son Zafar Maniyar. The appellants Haroon and Ghousia Bakery filed written‑statement wherein they denied all the grounds of eviction stated in the ejectment application. The respondent Abdul Karim filed his affidavit‑in‑evidence and produced registered notice, dated 19th August, 1993, as Exh.l/A, affidavit‑in- evidence of Zafar Maniyar, filed photostat copy of marks certificate in respect of B.Com. Part‑I and Part‑Il. Appellant filed his affidavit‑in‑evidence and produced photostat copy of money‑order coupons and receipts and photostat copies of challans in respect of rent deposited in the office of Rent Controller. The learned Rent Controller after recording the above evidence, hearing the counsel for the parties passed the impugned judgment. Learned counsel for the appellant has argued that the premises in dispute being commercial, therefore, it would need strong evidence to prove its personal requirement than required in case of the residential premises and further that the respondent/landlord has not adduced required satisfactory evidence in support of his personal requirement in order to show as to what business, the son of the respondent would carry out in the shop premises so as to entitle him to the eviction of the disputed shop premises. Reliance has been placed upon Muhammad Aslam v. Muhammad Aslam (1987 CLC 686) and Muhammad Yameen v. Mst. Khaliq Begum (1988 CLC 1297). On the point of subletting, learned counsel has argued that the finding of learned Rent Controller is legal and proper, therefore, required no interference by this Court. He argued that the written‑statement was filed by the appellants shown in the eviction application wherein it was stated that the appellant No. l was carrying on business in Ghousia Bakery and the said Ghousia Bakery belonged to the Appellant No. 1, therefore, the question of handing over the possession of shop premises would not arise to some other person at all so as to entitle the respondent to the possession on the said ground. He further argued that the respondent/landlord has not brought any reliable and satisfactory evidence to prove that the appellant No.l has parted with the possession of shop premises and the testimony of the appellant on the (sic) plea of defence could not be shaken by the learned counsel for the respondent in the cross‑examination of the said appellant. Learned counsel for the respondent has argued that the respondent/ landlord in para. 3 of eviction application has stated that the appellant/tenant has handed over possession to Ghousia Bakery and the said statement was sufficient to prove the passing of possession of shop premises to some other person so as to entitle him to evict the appellant/tenant on the said ground, considering that the appellant/tenant has not produced any reliable sufficient evidence to show that he and the Ghousia Bakery being one and same and no possession was passed on to someone else. He further argued that the onus shifted upon the appellant/tenant to disprove the evidence of respondent that he had not parted with the possession. In support reliance has been placed upon Mansoor Hassan and another v. Abbas Ali Khan (1991 CLC 669) and S.M. Younus and others v. Premier Merchantile Service Karachi and another (1991 CLC 1380). On the point of personal requirement, learned counsel for the respondent has argued that it was not necessary to state the nature of business to be carried out in the disputed premises after it is vacated by the appellant, considering that personal requirement in good faith has been proved, therefore, the finding of the learned Rent Controller is based on proper appreciation of evidence hence called for no interference. Reliance is placed upon Haji Majeed v. Haji Imamuddin (1991 CLC 1091). The learned Rent Controller has answered the issue of subletting/parting of possession in negative holding that respondent has to prove that possession of shop premises has been passed on the some other person. He also do not find justification to interfere with the said finding of learned Rent Controller considering that mere assertion of the respondent that appellant No.l has passed on/handed over the possession of shop premises to Ghousia Bakery would not by itself be sufficient to hold that the possession of shop premises has been passed on to some other person considering the rebutting evidence of the appellant/tenant who has clearly stated in the written‑statement as well as in the affidavit‑in‑evidence that he has been carrying on business in the name of Ghousia Bakery since the inception of the tenancy. No evidence has been adduced by the respondent/landlord to show that appellant and Ghousia Bakery are two independent entities and persons. In the circumstances, that respondent has failed to prove that the appellant has handed over possession of shop premises to some other person, considering that Ghousia Bakery is also owned by the appellant where he has been carrying on business since long hence contention of the learned counsel for the respondent has no merit and substance considering that mere statement of the respondent is not sufficient to prove the said assertion in absence of other reliable and satisfactory evidence to show that the said appellant has passed on possession to some other person and somebody else was carrying on the business in the disputed shop. The respondent could have as suggested by his learned counsel called for the record from the Income Tax and other authorities showing that the Ghousia Bakery is owned by some other person other than the appellant. In the circumstances, no interference is called for. The facts of case‑law cited are quite different and distinguishable to the facts of the instant case. On the point of personal requirement that the respondent in the eviction application as well in the affidavit‑in‑evidence of the respondent Abdul Karim has stated that the disputed shop is required by the respondent in good faith for his said son who would carry on business, whereas respondent's son Zafar has stated in his affidavit that he required shop premises for running a general provision store. Mere fact that in the eviction application the respondent did not state the nature of business which would be carried on in shop premises would not negate his personal requirement in good faith which has not been satisfactorily challenged in the cross‑examination of the respondent and his son Zafar. It is not necessary that person requiring the shop premises should also state in the eviction application as to nature of business which would be opened or would be carried out by him in case possession is given to him, the landlord has to prove his personal requirement in good faith only. It is likely that at the time when one requests for personal requirement for starting a particular business, may not be suitable/beneficial for him to start the said particular business after his latest assessment of situation and there appears no bar in law to start some other business in the premises which is likely to be more profitable to the landlord. Reference may be made to Khawaja Imran Ahmad v. Noor Ahmad and another (1992 SCMR 1152 at page 1155) wherein it has been observed:‑‑‑ ..... Therefore, if a landlord states in his application that he requires the premises in good faith for his own occupation or use or for the occupation or use of his spouse, any of his children would be sufficient. If a question arises whether a landlord does not require the premises in good faith then it can be shown by cross‑examining him on his affidavit or anybody else whose affidavit is filed that he does not require the premises in good faith. In this content some times, disclosure of the nature of the business which a landlord wants to do in the shop premises might be relevant, but a statement to that effect in the application in the absence of any provision in the Sindh Rented Premises Ordinance, 1979 requiring the landlord to state the nature of business, would neither be fatal nor essential. Indeed, a landlord may think of doing a particular business and states so in his application but nothing prevents him under the law from doing any other business if the situation or the environment of the shop is changed or he finds that the particular business cannot be carried on profitably in the shop. Any such restriction, even if provided by law, would be hit by Article 18 of our Constitution which provides freedom of trade or business or profession subject to the provision contained in the proviso contained therein." Reference may also be made to Mst. Saira Bai v. Syed Anisur Rahman (1989 SCMR 1366 at page 1369) wherein it has been observed:‑‑‑ "Regarding the non‑mentioning the nature of the business in application it may be observed that an applicant has to state in his application, the material facts i.e., facts which constitute cause of action. In a case of present nature the applicant has to state those facts which prima facie show that the requirement is according to law, and is made in good faith. This has been so stated in the application. It is not essential as it is not part of the cause of action to state the nature of business which the applicant intends to carry on. Take a case where the applicant states in the application that she requires the shop for her son for carrying on a particular business but later on pending hearing of the application or after eviction of the tenant, the applicant thinks that the business can no more suitably and profitably be carried on in the shop, the question might arise; could he change the nature of business or not? The choice of doing a particular business also depends on many other factors such as the nature of the locality or the nature of business being carried on in other shops in the neighbourhood. It also depends on the flow of customers and class of people residing in the area. Therefore, if there is any change in circumstances, the nature of business could also be changed. Accordingly, the answer would be that the applicant could change the nature of business with the change of circumstances because in law no restraint or bar is provided. Therefore, the mentioning of the nature of business was not a mat fact or so essential that without it the application must fail. " It is true that there is difference in the degree of proof with regard to personal requirement in case of commercial premises to the one in respect of residential premises. In the instant case, the respondent/landlord is fully corroborated by his son Zafar Maniyar on the point of personal requirement and the said fact has not been satisfactorily challenged in the cross‑examination. Mere fact that the said son is B.Com., therefore, he could not run the general provision store has no substance and merit. The tenant cannot dictate the landlord to adjust his son in a particular business or job as it would be prerogative of landlord, so also of his son to chose the vocation as to which trade or profession would be suitable. Sufficient reliable evidence has been produced by the respondent/landlord to prove the personal bona fide need in good faith for his son hence no interference is called for to the finding arrived at by the learned Rent Controller. The facts of cases relied upon by the learned counsel for the appellant have different facts, therefore, the same have no application to the facts of instant case. In view of aforesaid reasonings the appeal has no merit which is hereby dismissed. However, the appellants is given one month period to vacate the shop premises subject to deposit of rent. A.A./H‑52/K Appeal dismissed