ABDUL MAJID vs ANWAR ALI

' This appeal is directed against the order of the learned Additional District Judge, Rawalpindi, dated 19th April, 1977 whereby the order of the Rent Controller dated 10th February, 1977 was set aside and the appellant tenant was ordered to be ejected.

2. The respondent filed an application under section 13 (3) (ii) of the West Pakistan Urban Rent Restriction Ordinance (VI of 1959),, for ejectment of the appellant on the simple ground that he required the shop in dispute for his own use. He contended that he had retired from Government service recently, and, therefore, he wanted to start business there. The appellant denied the good faith of the respondent-landlord because of his intention to enhance rent. He pleaded that the respondent had got vacated his tenant from a portion of his property consisting of a shop and a residential unit and rented it out to somebody else.

3. The Rent Controller found that the respondent had once got vacated the residential portion and the shop from another tenant on the pretext of his personal use, but instead of occupying it himself he again rented it out to some other person. According to the Rent Controller the requirement of the respondent was not bona fide. The application was consequently dismissed, but in appeal, the learned Additional District Judge was of the view that the respondent was not owning any other property suitable for his need, and that the mere fact that he occupied another shop was not sufficient to disentitle him to ask for the shop in dispute because in view of Sabu Mal v. Kika Ram alias Heman Das, it was the prerogative of the respondent to choose the shop in which he would like to carry on his business. On the question that the respondent had even previously obtained another shop on the pretext of his personal need and had again leased it out to someone, the learned Additional District Judge observed that the first tenant who had been ejected was entitled1 to the restitution of possession, and the appellant could not thus be benefited. The appeal was accepted and the appellant was ordered to be ejected forthwith.

4. For the satisfaction of the Controller it is incumbent on the landlord to show that his claim is bona fide. He has therefore to assert that he requires the non-residential building in good faith for his own use, that be is not occupying in the same urban area in which such building is situated for the purpose of his business any other such building suitable for his needs at the time, and that he has not vacated such a building without sufficient cause after the commencement of the West Pakistan Urban Rent Restriction Ordinance, 1959 in the said area. The respondent landlord had required his tenant to be ejected on the ground of personal need in good faith. He owned a house and another shop in his occupation but he did not mention in his application that it was not suitable for his needs. Nor did be care to point out and give details of the sufficient cause for his vacating the shop. This deliberate and inexcusable omission in the pleading tells upon the bona fides of the respondent in needing the shop in dispute. Although he has said in his statement a A.

W. 1 that he required that shop in dispute in good faith but this contention in the absence of a definite assertion in the application, has undoubtedly lost weight. He deposed that the shop in dispute was a part of his house and that he had no other shop in the vicinity than the one in dispute, but in cross-examination be admitted that be owned another shop and a house adjacent to the one in dispute, that he had rented it out to a tenant named Naeemi, and that on his death his widow, Mst. Noshaba came into possession, He also admitted that he got vacated the house and the shop on the ground that he was going to retire from service and he needed it for his own use, but he had leased out the building to one Nasir Mehdi for 5 or 6 months, which he had left about two months ago. He further stated that he was presently in possession of the said property.

This admission by itself was a sufficient evidence against the respondent. The Rent Controller could not, therefore, direct the appellant to put the respondent landlord in possession, as it was an admitted fact that the respondent was occupying another building and it was not properly explained by him that the same was not suitable for his needs at the time. It is laid down in Dr. A. K.

Khan v. Muhammad ishaque, that the landlord must' prove affirmatively that he does bona fide require premises for himself or his male child in Abdul Sat tar Haji Ahmad v. Fazal Hussain, it is held that the landlord besides establishing his requirement in good faith must prove that he does not occupy any other property in the same urban area suitable for his 'needs at the relevant time. The shop and a portion of the house leased out to Naeemi and then to Nisar Mehdi was kept separate by the respondent himself. Therefore, it could not be asserted by him during arguments that the shop used by Naeemi was a portion of the main house and was not meant for business purposes.

It stood belied when the respondent himself conceded that the shop in his possession was smaller in size, and second time when he had volunteered before the learned Additional District Judge to give possession of the same to the appellant, if he so required.

5. It was also admitted that he had vacated the building for being rented out to Nasir Mehdi. It is immaterial that it remained in occupation of that tenant for only 5 or 6 months. It was however not explained if there was a sufficient cause for vacating the building. It appears that the respondent a few months before the institution of his application was not interested in starting business although he had by then retired from service. The Controller was in the circumstances, justified in remarking that the respondent's conduct of getting the property vacated from Mst. Noshaba and again renting it out to Nasir Mehdi was ill-designed. However the "good faith" as well as "sufficient cause" as required by section 13 (3) (a) (ii) of the Ordinance, 1959 were lacking and without such material no indulgence could be shown to him by putting him in possession of the shop in dispute.

' For the foregoing reasons the appeal is accepted, the order of the learned Additional District Judge is set aside and the respondent's application is dismissed with no order as to costs. 2 3