1998 PLP 802 (CLC)

(a) Whether the shop is required for personal bona fide use of the applicant No. l Muhammad Rafiq? (b) What should the order be?

5. The appellant No. l filed his own affidavit‑in‑evidence (Exh.12) and produced General Power of Attorney of all the heirs of his deceased father (Exh.13), rent agreement (Exh.14) and notice and reply thereto as (Exhs.15 and 16). In support of his case he has also filed an affidavit‑in‑evidence of one witness (P.W.1), namely, Marghoob (Exh.17). The respondent Muhammad Hanif filed his own affidavit‑in‑evidence (Exh.40). He also filed a copy of the notice of the Civil Suit No.345 of 1983 between the parties and of the proceeding before the S.D.M. The respondent also tiled affidavit‑in‑evidence of his witness Muhammad Ali (Exh.44), D.W. 1.

6. On assessment of the evidence of the parties the learned Rent Controller was pleased to hold Point No.l in the negative and dismissed the T.A. on 30‑4‑1987 which has been impugned in this appeal.

7. I have heard Mr. Hassan Mahmood Baig, the learned counsel for the appellants and Mr. Abdul Sattar Shaikh, counsel for the respondent and with their assistance. I have gone through the record, the appellant in his affidavit‑in- evidence has stated that he required the premises for the purpose of starting his independent business. He has also stated that he is jobless since last 3‑4 years and that he has no other premises where he could run his business or that he is running his business anywhere else. He has also stated the nature of the business which he intends to open and has categorically stated that he wants to do cloth business in this shop and that he needs premises in good faith for his personal bona fide use. He has denied that he ever has any other shop at Pakh‑Pir‑ji‑Chari or anywhere else in Hyderabad. He has also denied that he has filed the ejectment proceedings for pressurising the respondent to enhance the rent. He has been supported by his witness, namely, Mahboob Ali who in his affidavit -in‑evidence has stated that he knows both the parties and that the respondent is the tenant in the disputed premises since about 11 years having been rented out to him by the father of the applicants/appellants. He has affirmed that the applicant No. l is jobless as such he needs the shop for his personal use. He has, however, denied that he is on family terms with the present appellants, but only on visiting terms with him. He has categorically denied that the applicant ever owned a shop at Pakha‑Pir ji‑Chari. He has asserted in the cross‑examination that the applicant was jobless since 3‑4 years and earlier to that he was in private service and his brother is maintaining him since his joblessness.

8. The respondent on the other hand in his affidavit‑in‑evidence has tried to show that the rent case was filed by the applicants with a mala fide intention for increasing the rent and that he does not require the premises in good faith and for his bona fide personal use. It is also stated by the respondent that the applicant's father died in 1977 and thereafter, he had tried to eject him forcibly as such the respondent had filed a suit against the appellants which was decided in his favour. According to him there was no reason for him to wait for such a long time and filed present proceedings. According to the respondent the applicant No. 1 belongs to old business class and had been running his shop with the name and style of Sana Silk Centre, Al‑Amna Market, Resham Gali, Hyderabad since long as such the premises were not required by him for any bona fide personal use. In his cross‑examination this witness had admitted that he has no terms with the appellants but he knows that appellant No. l wanted to increase the rent from Rs.350 per month to Rs.700 per month. It seems that this witness is not sure if the appellant No. l was ever owning Sana Silk Centre, he has categorically states that he cannot give the name of the person who told him that the appellant is the owner of the said shop.

9. It has been contended by Mr. Hassan Mahmood Baig, the learned counsel for the appellant that it is not the duty of the appellants to show that the appellant No. 1 required the premises in good faith for running his own business. The earlier litigation between the parties would, however, not deprived the applicant from the possession of the disputed premises. According to him the appellant has successfully established that he requires the premises for his bona fide personal use and in good faith for running his own business. It is also asserted that if the other brothers of the appellant No. l or his relatives were well‑placed in the business would not in any way debar him from running his own business. He has placed reliance on 1992 MLD 2488 and also on 1989 SCMR 1366. Reliance has also been placed on 1989 MLD 4343 and stated that the decision of the Trial Court was unwarranted and his application for ejectment was wrongly dismissed.

10. Mr. Abdul Sattar Sheikh, the learned counsel for the respondent had vehemently argued that the order of the Trial Court was legal and the learned Trial Judge was justified in dismissing the ejectment application filed by the appellants. According to him none of the other appellants have come forward to give evidence supporting the applicant and to show that the appellant No. 1 really required the premises in good faith. According to him, earlier, too the applicant had made an effort to eject the respondent from the premises by force, hence the respondent had filed a suit in the Civil Court which was decided in his favour and the appellant No‑1 was directed not to eject the respondent from the premises by force. There was no reason for the appellant to wait for a long time to file this ejectment application when the cause of action had accrued to him on the death of his father in 1977. Mr. Abdul Sattar Sheikh, the learned counsel for the respondent has placed reliance on 1989 SCMR 1366 and stated that the appellant has never disclosed what sort of business he wants to start when. he already had a cloth shop at Pakha‑Pir‑Ji‑Chari, thus, the claim of the appellant, according to him, is unjustified and he has failed to establish the case of bona fide personal use in good faith. The order of the Trial Court and the circumstances does not require any interference, he urges that the appeal may be dismissed with cost.

11. I have carefully considered the contents made by the parties and also gone through the authorities referred to by them. The appellant No.l is also a General Attorney of all the other appellants who are related inter se say and the word of applicant as such would be the word of all these appellants, hence, there was no necessity for him to examine any of the applicants/appellants which gives a presumption that they are all in his favour. The appellant had, therefore, choses to examine an independent person for his support who has categorically stated that the appellant being jobless is being maintained by his brothers. This witness has also stated that the appellant was earlier employed in private service. It is, therefore, possible that this applicant may have been seen by the respondent in Sana Silk Centre. The respondent has not been able to produce any document or any reliable evidence to show that the appellant was the owner of Sana Silk Centre. The respondent has been harping on the issue that the appellant was the owner of Sana Silk Centre and that the appellant has not been able to establish that the premises were required by him in good faith. It is not necessary for the landlord to disclose what sort of business intends to run in the shop, it may be that when the premises are handed over to the landlord he may change his mind of running his business other than he intended to run as the circumstances may not warrant to run the business which he had earlier intended to run. It is the prerogative and discretion of the landlord to determine and decide as to what he would do with the premises and what sort of business he would run in the premises or that how he would be using that premises in his own way.

12. The authorities reported in 1989 SCMR 1366 does not in any way come to the rescue of the respondent. This is a case of Mst. Saira Bai v. Syed Anisur Rehman. It was held that the landlord has to state in his application the material facts i.e., facts which construed cause of action alongwith those facts which prima facie showed that the requirement was according to the law and was made in good faith. It is further held that the landlord was not required to state the nature of business which he intends to carry‑on as the same was neither essential nor formed part of cause of action. It is also held in this authority that the demand of higher rent by itself would not cause any doubt on the personal bona fide requirements where the factum of bona fides requirement was independently proved. In the instant case in hand, the appellants had successfully established that his requirement of the premises was in good faith. Thus, this authority supports the case of the appellant and in no way protects the respondent as already mentioned.

13. In the case of Mst. Razia Sultana v. Nasir Haider reported in 1989 MLD 4343, it was held that the demand of higher rent does not by itself cast any doubt about personal bona fide requirements if same is born‑out from the record. The determination as to suitability or sufficiency of accommodation is prerogative and discretion of landlord which cannot be controlled by the tenant. The allegation of the tenant was not upheld in this case the landlady had made out the case for ejectment on the ground of personal need for occupation by her married daughter.

14. In the case of Amanullah v. Mukhtiar Ahmed reported in 1992 MLD 2488, it was held that where premises in dispute was required by the landlord to start his own business, it was not the requirement of law that the landlord should disclose in the application nature of business intended to be done by him in the premises. The non‑disclosure of the nature of business by landlord in his affidavit‑in‑evidence would not be fatal in his case if his bona fide requirement would be spelt‑out in his cross‑examination and the same should be accepted unless there were circumstances which could mitigate his good faith. In this authority reliance has been placed on 1989 SCMR 1366 referred above alongwith a number of authorities. In the case in hand the objection raised by the learned counsel for the respondent that the appellant had neither in the notice nor his affidavit‑in‑evidence has disclosed. The nature of the business he intended to do. In his cross‑examination the applicant has categorically specified that he would open a cloth shop and running the business of cloth in the premises. The objection raised by the learned counsel for the respondent merits no consideration in view of the said authority.

15. The contention of the learned counsel for the Respondent that the appellant belonging to the business class and that all his brothers were set in business, hence the applicant was not entitled to the premises in good faith. This contention does not carry any way. In view of 1994 CLC 927 Anwar Jawaid v. Umennisa where it has been held that mere fact that the father of the landlord is carrying on flourishing business would not show lack of landlords bona fides, thus, the contention of the learned counsel for the respondent in the instant case before me, will not discard the bona fide personal requirement on the ground that all the brothers of the appellant were set in business. It was also been held in the reported case that the Court should ordinarily accept good faith requirement and should not start with permission of bad faith against the landlord and the tenant could not determine the suitability or sufficiency of accommodation for the landlord and in the circumstances the tenant was directed to hand over the possession to the landlord. In view of the above facts and law, I am clear in my mind that the appellant had made prima facie case of bona fide personal use and the premises were required by him in good faith. I, therefore, set aside the order of the Rent Controller and accept the appeal directing the respondent Muhammad Hanif to hand over peaceful vacant possession to the appellant within 90 days of the passing of this order. The appeal stands disposed of. A.A./M‑253/K Appeal accepted.