1990 PLP 1096 (MLD)

(2) Whether this Court has no jurisdiction to entertain this application? (3) Whether the shop in dispute is needed by applicant for the personal use of her husband bona fidely? (4) Orders. The first two points were answered in favour of the appellant while the third point was answered against her and consequently her application under section 15 of the Ordinance was dismissed. Being aggrieved she has filed this appeal. I have heard the learned counsel for the parties and perused the record of the lower Court. The appellant has examined her son and attorney Abdul Sattar and also her husband Naseer Muhammad who have both filed their affidavits in evidence and have been cross‑examined at length. As against this the respondent filed his affidavit in evidence and has been cross‑examined. He has also examined the postman in support of his contention that he had been sending the rent through money orders which were refused. Such money order coupons have been produced as Ex. 34 to Ex.

44. This witness has also been cross‑examined. The respondent has also examined the record‑keeper of the Court of Rent Controller who has not been cross‑examined by the appellant although chance was given. This witness has proved the payment of rent in Court. Mr. Naraindas D. Kapoor, the learned counsel for the appellant has assailed the findings of the learned Rent Controller on the point of bona fide requirement of appellant for her husband. He has submitted that the choice to select the shop to run the business rests with the landlady and the tenant cannot dictate terms in this respect. He has placed reliance on the cases of Muhammad Younas Malik v. District Judge, Lahore 1985 S C M R 650 and Muhammad Latif v. Hakim Nisar Ahmed 1986 S C M R 651 and Sideman Ghazi v. Ghulam Hyder 1984 C L C 2213. Relying on the above cases the learned counsel has submitted that mere fact that the husband of the appellant was running his business in a rented shop of the Municipality would not disentitle the landlady from getting possession of the shop owned by her as is held in the above‑cited case of Suleman Ghazi v. Ghulam Hyder. Mr. Wahid Bux Baloch, the learned counsel for the respondent, repelling the above contention, has referred to the cross‑examination of the appellant's son and attorney Abdul Sattar and her husband Naseer Muhammad. This cross -examination shows that the appellant's husband had retired from service of Municipality about 30 years back and that both the landlady and her husband had been allotted separate shops by the Municipality and that they both are carrying on business in their respective shops. The learned counsel has further pointed out that the husband of the landlady, in his cross‑examination has said that since about 10 years back he had felt the need for premises for his own use and occupation. It has also come in cross‑examination that during this period another shop of landlady which was on rent with one Memon had been vacated in the year 1980/1981 but it was not given to her husband for his business, instead it was rented out at Rs. 500 per month. He has also pointed out from the cross‑examination that the husband of landlady had himself owned a shop bearing No. 3/293 in the same ward which he gifted away to his son Khalid Hussain on 13‑10‑1983, four days after the said notice was given by the landlady to the respondent. The learned counsel for the respondent has further pointed out that soon thereafter i.e. on 5‑2‑1984 this application for ejectment has been filed. The learned counsel has also submitted that though admittedly the appellant's husband had been needing the shop for his personal use and occupation yet no such mention was made in the notice from the landlady. From this the learned counsel for respondent has submitted that the requirement of the landlady is not bona fide but she is using this device to get enhanced rent. The fact that she did not accept the rent from respondent also goes to show that she intended to create a ground for ejectment but the said manoeuvre was defeated by the respondent who displayed vigilance by sending the rent through money orders and then by depositing the same in Court when money orders were refused by appellant. He has placed reliance on the cases of Mst. Saira Bai v. Syed Anisur Rahman 1989 S C M R 1366, Sultan Press Ltd. v. Muhammad Hasan P L D 1985 Karachi 624, Mst. Farukh Nisa v. Safdar Ahmed P L D 1985 Karachi 639 and Muhammad Aslam v. Muhammad Aslam 1987 C L C

686. It will be advantageous to reproduce the provisions of section 15(vii) of the Sind Rented Premises Ordinance, 1979 in order to appreciate the point in dispute. It reads: "(vii) 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." From the above it will be observed that the emphasis is not only on personal requirement but also on the words `good faith'. I have considered the submissions made by the learned counsel for parties and the case‑law cited by them in the light of the above provisions. In the first two cases cited by the learned counsel for the appellant, the point for consideration before the Hon'ble Supreme Court was the suitability of the requirement and not the bona fides of the landlord. In the third case a learned Single Judge of this Court had held that the provisions of section 13(3)(a) of the West Pakistan Urban Rent Restriction Ordinance, 1959 cannot be extended to cover a building occupied by the landlord but not owned by him. In the present matter, I am of the view that the primary point in dispute is whether the requirement of the landlady is in good faith? The evidence discussed above shows that the husband of the landlady had since last 10 years felt the need of the shop to run his own business but during this period he had gifted away his own shop to his son only 3 months before filing of the present rent case. The evidence also shows that during this period another shop of the landlady fell vacant but the same was rented out on a higher rent. It may also be observed that in paragraph No. 2 of the affidavit in evidence filed by the husband of the landlady he states that he is jobless but in cross‑examination he says that he is running the cloth business in the shop allotted to him by the Municipality in e partnership with another person. The other fact proved by the respondent that the landlady had stopped accepting rent which he ultimately deposited in Court also lends support to the case of the respondent. In the case of Mst. Saira Bai v. Syed Anisur Rahman 1989 S C M R 1366 their Lordships have held "A thing shall be deemed to be done in 'good faith' where it is in fact done honestly, whether it is done negligently or not". In the cases of Mst. Farukh Nisa v. Safdar Ahmed and Sultan Press Ltd. v. Muhammad Hasan my learned brother Haider Ali Pirzada, J. has held: "From the phraseology used in clause (vii) of subsection (2) of section 15 of the said Ordinance, it is further clear that the landlord has to prove that he requires the premises in good faith. The expression "requires in good faith" has been considered by superior Courts on several occasions. Broadly stated mere wish, convenience, whim or fancy of the landlord would not be enough to show that the landlord "requires the premises in good faith". The landlord must allege and prove certain circumstances or facts which go to prove his requirement. The law does not require a landlord to establish absolute need or absolute requirement, without which he shall have no shelter over his head. What is meant by "requires in good faith" is that the landlord requires the premises for his reasonable needs and that he is not seeking eviction on the pretext of requiring additional accommodation with an oblique motive of realising some extraneous purpose. The term "requires" means that there must be an element of need before a landlord can be said to require premises for his own use and occupy the premises. What is necessary is that he should need them for his own use and occupation. The need has to be reasonable and bona fide. The onus of proof of this is certainly on the landlord. Although the word "reasonable" does not appear in the Ordinance, the question of reasonableness is relevant in deciding the bona fides of the landlord. Gross unreasonableness may in proper circumstances lead the Controller to reach a conclusion that the landlord's requirement is not in good faith. Therefore, while deciding the question of good faith, the reasonableness of the need or requirement is relevant. Full effect will have to be given to the expression used in the clause, namely; "requires in good faith". The words "good faith" mean honestly and not actuated by bad faith or oblique motive. Mere wish or intention of the landlord is not sufficient to give him a right to evict the tenant. As already observed the Ordinance is promulgated with the avowed object of protecting tenants against unreasonable eviction and at the same time it makes a provision that the landlords will be entitled to get the possession of their premises on the grounds enumerated therein. One of such grounds is that a landlord requires the premises in good faith for his own occupation. Subsection (2) of section 15 further enjoins a duty upon the Controller to enquire into the requirement of the landlord and if on enquiry the Controller is satisfied that the requirement of the landlord will be met by occupation of the premises, then he has to pass an order of eviction. Therefore, all the relevant factors will have to be objectively considered before such a question is decided by the Controller. I am of the humble opinion that for considering the true scope of clause (vii) of the said Ordinance, the landlord has to make out a case for his requirement of the premises in good faith. For this purpose he must place before the Rent Controller all the necessary details which arc required for granting relief. A mere ipse dixit of the landlord that he requires the premises for his personal occupation or use is not enough, He must give details as to whether he requires the premises for residence or godown. If for residence, he must give details as to number of members of family and how he requires the premises. If for expansion of business, he must give details as to whether it is inadequate or if for new business, details of new business, his sources. If he owns other houses or buildings, he must show whether they are occupied and vacant, why it is not available. If he owns other buildings which he sold he must show under what circumstances it was sold. Unless the landlord gives such details, the tenant cannot be expected to meet the case o. landlord. The statement of the landlord must be supported by valid reasons as how his requirement is genuine or in good faith." In the case of Muhammad Aslam v. Muhammad Aslam it was held by Ali U.Qureshi, J. (as he then was). "The learned Rent Controller appears to have relied upon the mere word of the appellant /respondent that he required the premises for bona fide need of the sons and has shifted burden of proof in rebuttal upon the appellant. In my view this is not the correct position of law. The landlord has first to prove the bona fides of his requirement, before any burden of proof in rebuttal can be shifted upon the tenant. In the present case, the landlord has not discharged the burden and the weakness if any in the case of the appellant tenant would not help the landlord." From the above discussion I am of the view that the appellant landlady has failed to prove that the shop in dispute is required by her in good faith for the use and occupation of her husband. Consequently this appeal is dismissed with no order as to costs. H.B.T./N-251/K Appeal dismissed.