AKHLAQ-UN-NABI Versus NAWAB AHMAD SHAMSI

1. This first appeal is directed against the order, dated 12‑4‑1983 passed by XI Senior Civil Judge and Rent Controller, Karachi, whereby the eviction application filed by the respondents was allowed and the appellant was directed to vacate the premises in case and hand over its vacant possession to the respondents within thirty days from the date of order.

2. The facts which give rise to this appeal are that the respondents are the landlords of the premises built and standing on the plot of land bearing No. M/11/E/949, Block 'C', Gali No. 4, Shershah Colony, Karachi and the appellant is the tenant in respect thereof at the monthly rental of Rs.650. The appellant was inducted as tenant by the respondent's mother Mst. Talim‑un‑Nisa, vide agreement, dated 3‑5‑1973. The respondents filed eviction application No. 5453 of 1980 against the appellant on the ground of default in payment of rent from the month of August, 1980 onward, the appellant handed over possession of the premises in question to some other person without consent of the respondents impaired the value and utility of the premises in question and required the premises in question in good faith for their own use and occupation particularly for respondent No. 1. The respondent resisted the eviction application.

3. The respondents filed affidavit‑in‑evidence of Ikhlas Ahmed Shamsi (respondent No. 3), Muhammad Ahmed (respondent's uncle), Nawab Ahmed (respondent No. 1), Arshad Alam (dealer of Punjab Mechanical Works) in support of the eviction application. In rebuttal the appellant filed his own affidavit‑in‑evidence besides affidavit‑in evidence of Tariq Jamal (Manager of Mehran Associates). They were cross‑examined by the respective counsel of the parties.

4. The learned Rent Controller on the basis of the evidence adduced by the parties and taking into consideration the arguments of the learned counsel for the parties decided point No. 1 in favour of the respondents, points Nos. 2, 3 and 4 in the negative and point No. 5 in the affirmative. The eviction application was allowed only on the ground of personal requirement vide order, dated 12‑4‑1984.

5. The appellant being aggrieved against the order, dated 12‑4‑1983 of the Xlth Rent Controller, Karachi has preferred this first Rent Appeal, on the grounds disclosed in the memo of appeal.

6. Mr. Habib A. Rehmani, the learned counsel for the appellant has contended that the landlord has to succeed only on the ground of personal requirement when he proves that he needs the premises in dispute in good faith.

7. On the other hand Mr. Mumtaz Ahmed Shaikh, the learned counsel for the respondent has submitted that the respondents have proved that they required the premises in question in good faith and the order of the learned Rent Controller is in accord with the evidence on record.

8. Reverting to the contention of the learned counsel for the appellant that the landlord can only succeed when he proves that he needed the premises in question in good faith. His contention is that the evidence produced by the respondents in the instant case is collusive, forged or manipulated as such their conduct nullifies the good faith. Such evidence cannot be expected as proved. The evidence produced in support thereof reacts against the good faith of the respondents. The respondents stated in para. 8 of the eviction application that "applicants 1 to 4 required the premises in question in good faith for their own use and occupation particularly for applicant No. 1 above‑named who is at the time out of job and whose marriage is also held up for want of proper and regular income". The respondents stated in para. 9 of the eviction application that they called upon the appellant to hand over vacant possession of the premises in question to them but to no avail. Legal notices were also served on the appellant but he refused to vacate the premises in question. In the last week of March, 1980, the respondent No. 3 saw him personally and apprised him of their difficulties and convinced him of the genuineness of their requirements for the premises in question. He agreed to vacate the premises by end of April, 1980. He again asked for time upto end of June, 1980. Thereafter, they served legal notice but the appellant again refused to vacate the premises. The appellant filed written statement. He denied contents of paras. 8 and 9 of the eviction application. He stated that the respondents or any one of them did not require the premises in good faith for their own use and for occupation. The appellant stated that the eviction application is mala fide as in August, 1974 the respondents induced him to make investment for raising the additional construction and in February, 1975, advised him to vacate the premises. He had by that time invested Rs.38,000 in construction and Rs.2.5 lacs in machinery from his own sources. The respondents slept over the issue and got up in March, 1979 when they sent a letter asking him to vacate. On 21‑5‑1979 he sent a reply.

9. The respondent No. 3 repeated the same facts in his affidavit‑in -evidence. He further stated that "the applicants intend a terry towel unit, in the premises in question under the name and style of Ejaz Wearing Mills and have already placed an order for purchase of necessary machinery from M/s. Punjab Mechanical Works of Faisalabad through Messrs The Trade Links of Karachi". He also produced letters, dated 19‑6‑1980, 6‑8‑1980, 12‑8‑1980 and 27‑8‑1980. He also stated that alongwith his uncle saw the appellant a number of times and impressed upon him their need for the premises in question and eventually persuaded him to vacate the same. He promised to vacate the premises by the end of April, 1980. In April, 1980 when approached for possession he gave solemn promise to vacate the same in June, 1980 without fail. On failure to do so he was served a notice, dated 3‑8‑1980 to which he sent a reply, dated 21‑8‑1980. Ultimately he refused to vacate the premises in question. The respondent No. 3 denied the suggestion that from the very beginning it was his wish to get the rent at enhanced rate from the appellant. He also denied the suggestion that when the appellant refused to enhance the rent the respondents filed eviction application. He admitted that Ejaz Weaving Mill was not in existence. He also denied the suggestion that they had no sufficient funds for installing the factory. He was also confronted with Exhs. 11 to 14 and after these letters, he stated that the same have not been obtained by foul means in order to substantiate their case for installation of terry towel plant. He also stated that he had ordered for the terry towel looms.

10. Muhammad Ahmed, the paternal‑uncle of the respondents filed his affidavit‑in‑evidence. He stated in his affidavit that he visited the appellant at his factory alongwith respondent No. 3 and he requested him to vacate the premises as the same was required in good faith by the respondents. He reiterated the same facts as stated by respondent No. 3 in his affidavit.

11. It is pertinent to note that the respondent No. 3 and Muhammad Ahmed were cross‑examined at length but no suggestion was made about demand of enhancement of rent.

12. Nawab Ahmed Shamsi, the respondent No. 1 filed his affidavit‑in- evidence. He stated in his affidavit that he was without any regular job and he wanted to have a place for business. They wanted to establish a terry towel unit at the premises in question for which machinery was already ordered and other initial arrangements were also completed. He also stated therein that need and requirement is bona fide and in good faith. He denied the suggestion in cross‑examination that they had not placed any order for towels. He also admitted that at that time Ejaz Weaving Factory was not in existence.

13. Arshad Alam Proprietor of the trade units filed his affidavit‑in -evidence. He stated in his affidavit‑in‑evidence that the respondents placed an order for supply of a terry towel unit vide their letter, dated 6‑8‑1980 which was written by them in reply to their letter, dated 19‑6‑1980. His principals confirmed the order as conveyed to the respondents, vide their letter, dated 27‑8‑1980. He denied the suggestion in cross‑examination that he was not the dealer of Punjab Mechanical Works. He replied to the question in cross‑examination and stated "I produce the letter of Punjab Mechanical Works as Exh.

18. We have not paid any amount to Punjab Mechanical Works as yet". He also denied the suggestion that Punjab Mechanical Works had never booked his order. He also denied the suggestion that he was deposing falsely.

14. As against the above evidence, the appellant stated in his evidence that the respondent or any one of them did not require in good faith the premises for their own use or occupation. He also stated that the requirement of the premises was motivated to harass him to accede to their illegal demand for increase in rent. He also stated that "the story of installing a towel manufacturing factory at the premises in question is concocted and fictitious. No order for the machinery required for manufacturing the towels has been placed on the suppliers". He also stated that "the main intention of the applicants is to pressurise to increase the rent. On their failure to achieve their objective, they have concocted the story of requiring the premises for their own use". The appellant replied to a question in cross‑examination that "since 1970 the applicants are demanding the rent at higher rate of rent". The appellant besides himself filed affidavit‑in‑evidence of Tariq Jamal, Manager of Mehran Associates. He stated in his affidavit in evidence that his uncle the appellant asked him to write to Punjab Mechanical Works enquiring about the supply of plant for the manufacture of Terry Towel. He wrote two letters, dated 5‑5‑1981 and 13‑5‑1981 to Punjab Mechanical Works. Punjab Mechanical Works sent replies, dated 7‑5‑1981 and 17‑5‑1981. He replied to a question in cross‑examination that he remained Manager since last one month.

15. During the pendency of the appeal, the appellant filed an application under section 21(3) of Sind Rented Premises Ordinance, 1979 which was granted by consent of the parties. The appellant examined Arshad Mahmood, Managing Partner of Punjab Mechanical Works. He stated in his deposition that they receive 25% to 50% of sale price as advance and the balance is to be received at the time of delivery at Faisalabad. They never agreed to sell to any customer on the condition that the payment will be made to them after the installation. Trade Links was not appointed their dealer in Pakistan. In 1980 they did not receive any order from Ejaz Weaving Mills. He stated that he did not receive Exh.

13. He also stated that they did not agree to supply machines on such terms as stated in that letter. He admitted that he met Trade Links in Karachi in 1980. He also admitted that Trade Links asked to give them quotations in respect of terry towel unit which was submitted on 14‑6‑1980. He stated that date was interpolated. He stated that after that letter he did not receive any reply in this respect. He also admitted in cross‑examination that "we deal with the parties directly also. Trade Links had verbally asked me about the order in respect of which he had submitted quotation but it was made clear that this order will be complied only after the advance payment has been made. The Trade Links had dealt with him independently and had asked to submit quotation. The Trade Links had asked for quotation one in 1978 and thereafter, in 1980 but in none of those quotations the orders were confirmed". He replied in cross‑examination that it was never disclosed that it was required for Ejaz Weaving Mills.

16. The learned counsel for the appellant has contended that the question of good faith of the respondents for seeking the order of eviction on the ground of personal need was not gone into by the learned Rent Controller inasmuch as the effect of the non‑placing of order for installation of terry towel with the Punjab Mechanical Works was not considered at all. The inaction of the respondent and the enhancement of rent was also not considered by the learned Controller.

17. Before examining this contention it will be pertinent to summarise the evidence and the reasons which prevailed with the learned Rent Controller in support of the finding sought to be impeached. The evidence adduced by the respondents consisted of two sets of witnesses, respondents 1 and 3 deposed that they wanted to establish a terry towel unit in the premises in question under the name and style of Ejaz Weaving Mills and they had already placed orders for the machinery and completed all the initial arrangements. Their paternal‑uncle supported them that they wanted to establish terry towel unit at the premises in question.

18. The other set of witness namely Arshad Aslam deposed that the Trade Links were the dealers of Punjab Mechanical Works and the Trade Links placed the orders for the machinery on behalf of the respondents. He also produced the correspondence exchanged between the respondents and the Trade Links. In rebuttal the appellant himself appeared besides himself examined Tariq Jamal. He deposed that Mehran Associates wrote letter to the Punjab Mechanical Works. Apart from these two witnesses the appellant also examined managing partner of the Punjab Mechanical Works who deposed that Trade Links never placed any order on behalf of the respondents for the purpose of the machinery. The Trade Links made enquiries and the Punjab Mechanical Works only sent quotation. He also deposed that the Punjab Mechanical Works accepts orders with 25$ to 40$ advance payment and the balance payment at the time of delivery at the factory. The respondents' evidence did not establish that they required the premises for their personal use.

19. The non‑placing of order with the Punjab Mechanical Works, It has been pressed into strongly by the appellant. In this connection the facts on record are that the respondents did not place orders for the purchase of the ‑machinery from the Punjab Mechanical but Trade links obtained quotations from them. Trade Links were not appointed as dealers of Punjab Mechanical Works. According to the practice of the firm they recover 25% to 40% of the sale price as advance and the balance is recovered at the time of delivery at Faisalabad in their factory.

20. The learned Controller rejected the plea of the appellant on the ground that the letter placed by the respondent for the machinery established their bona fides. The version of the appellant that ‑the documents produced on record for the purpose of purchase of textile machinery was forged one has got no force, because the respondents produced those documents and examined author of those documents. The learned Controller further observed that "no doubt that the applicant have placed their order without any advance payment, yet it does not mean that no order for purchase of the machinery was placed by them. The quotation of the Punjab Mechanical Works in favour of the applicants is a letter which give full particulars the applicants intentions who are intending to instal towel factory". He little further observed "However this is no ground to defeat the bona fide requirement of the landlords. It is their own choice to make arrangement for the towel factory and Controller has to see their bona fide and not beyond that".

21. The contention that the evidence regarding not placing of order or its effect has not been overlooked by the learned Rent Controller.

22. It is now well settled by the several decisions of the superior Courts that mere assertion on the part of the landlord that he requires the non‑residential accommodation in the occupation of the tenant for the purpose of starting or continuing his own business is not decisive. It is for the Controller to determine the truth of the assertion and also whether it is bona fide. The first which has to be applied is an objective test and not a subjective one and merely because a landlord asserts that he wants the non‑residential accommodation for the purpose of starting or continuing his own business, that would not be enough to establish that he requires it for that purpose and that his requirement is bona fide. The word 'required' signifies that mere desire on the part of the landlord is not enough but there should be an element of need and the landlord must show that he genuinely requires the non‑residential accommodation for the purpose of starting or continuing his own business.

23. The learned counsel for the appellant has contended that the finding of the Controller that the respondents required the premises for the purpose of starting terry towel factory was vitiated. Because unless the respondents had made preparation for establishing terry towel factory, such as making arrangements for capital investment, placing orders for the purchase of machinery it could not be said that the respondents bona fide required the premises in dispute for establishing terry towel factory. On the other hand the learned counsel for the respondents has submitted that this circumstance canvassed by the learned counsel for the appellant was wholly irrelevant.

24. It is difficult to imagine how the respondents could be expected to place orders for the purchase of machinery unless there was a reasonable prospect of their being able to obtain possession of the premises in dispute in the near future. It is a common but unfortunate failing of our judicial system that a litigation‑ takes an inordinately long time in reaching a final conclusion and then also it is uncertain as to how it will end and with what result and unless the respondents could be reasonably sure that they would within a short time be able to obtain possession of the premises in question and establish a terry towel factory, it would be too much to expect from them that they should make preparation for establishing the terry towel factory. Indeed, from a commercial and practical point of view, it would be foolish on their part to place orders for the purchase of machinery and to advance 25$ to 40$ of the sale price and/or to make arrangements for investment of capital and receipt of machinery for installation when they would not know whether they would at all be able to get possession of the premises in question.

25. In view of the above it is not necessary for the landlord to produce sanction, permission and make other arrangement before approaching the Controller but in the instant case the respondents brought on record certain documents and through those documents they wanted to show that they placed order for purchase of terry towel machinery with Pakistan Mechanical Works. The point for consideration is that what is the effect of those documents which are collusive and manipulated.

26. The Rent Ordinance was eclectic in nature and a metrorative in purpose. The intention of the Rent Ordinance is, according to its preamble, to restrict in public interest eviction of tenants and under subsection (1) of section 13, a tenant could be evicted only in accordance with the provisions of that section and not otherwise. And that the onus was on the landlord to establish that he was entitled to the possession of the premises in occupation of the tenant by bringing himself within the exceptions to subsection (1) of section 13 of the Ordinance.

27. Mr. Rehman the learned counsel for the appellant invited my attention to the landlord's application to which all that was stated was that "the applicants Nos. 1 to 4 require the premises in question in good faith for their own use and occupation, particularly for applicant No. 1 above named who is at the time out of job and whose marriage is also held up for want of proper regular income". He also referred to the deposition of respondents' witness and the documents produced on behalf of the landlord and made a justifiable grievance that this evidence of placing order, with Punjab Mechanical Works for purchasing terry towel machines is collusive and manipulated. The managing partner of Punjab Mechanical Works deposed that no order for purchase of terry towel machines was placed as claimed by the respondents' witnesses. He also stated that in 1980 the firm did not receive any order from Ejaz Weaving Mills. He further stated that he did not receive Exh.

13. He also stated that they did not agree to supply machines on such terms as stated in that letter. I agree with the learned counsel for the appellant, that the evidence produced by the respondents in the instant case is collusive, forged or manipulated for the purposes of requiring the property in dispute from the appellant, as such their conduct nullifies the good faith. Such evidence cannot be expected as proved but reacts against the good faith of the respondents. The documents are collusive and manipulated and the respondents did not actually place any order but only invited a quotation of price from the Punjab Mechanical Works. The assertion or claim on oath by the landlord that he required the premises for his personal use, should be accepted by the Controller a bona fide, if such claim or assertion, although by itself, may be insufficient, yet is consistent with his averments in the application and not shaken in cross‑examination or disproved in rebuttal. This observation should not be taken that the landlord has just to make a bald assertion only about his requirement. What I mean is that if the statements of landlord and his witnesses are inspiring confidence and there is no other material available on record to detract from their veracity then such statements of the landlord and his witnesses should be given the all important weight and not treated as the statement of interested persons. The statement of the landlord on oath is to be given due importance but that does not mean that the same has to be accepted ignoring other evidence on record which might have the effect of rebutting the claim made or which reflects on the bona fides or good faith.

28. I may observe that in the instant case the bona fide requirement of the premises in dispute by the respondents not stood established. The result is that the finding of the learned Rent Controller is reversed.

29. Apart from above, there is no doubt that here there was evidence to set aside the order of eviction passed against the appellant. The respondents had been trying to obtain possession of the premises in question since as far back as 1975 and it was apparent that the respondents were anyhow bent upon evicting the appellant from the premises in question. Though the period for which the tenancy was granted by the respondents or their mother expired in 1975, the respondents and their mother allowed the appellant to continue as a monthly tenant in respect of the premises in question, and did not, for a period of about four years, take any step to recover the possession from the appellant. If the respondents were really serious about establishing the factory, they would not have waited for a period of four years before taking action to recover possession of the premises in question from the appellant they would have bestirred themselves immediately as soon as the tenancy, which prevented them from asking for possession, expired. Moreover the respondents had no experience in the manufacture of terry towel and it was entirely a new business so far as they were concerned, and it would indeed be strange and unusual taxing the credibility of the Court that the respondent No. 1 who was without any work. The respondent No. 3 had an experience only in running cosmetic‑cum‑imitation Jewellery shop. The other brother was running a handicraft shop. The respondents wanted to start a new manufacturing business, a business in which they had no experience at all. These circumstances borne out by the evidence on record.

30. The other circumstances canvassed by the learned counsel for the appellant is that the premises in question that the respondents' mother entered into tenancy agreement, dated 3‑5‑1973 for a period of eleven months and extendable for a further period of eleven months. It appears that in August, 1974 she induced the appellant to make investment for raising the additional construction. She served a notice, dated 10‑2‑1975 and called upon the appellant to vacate the premises in question. The appellant sent a suitable reply.

31. On 8‑3‑1979 after a period of inaction of about four years the respondents sent a legal notice to the appellant. The appellant sent a reply, dated 21‑3‑1979. The respondents again sent a letter, dated 3‑4‑1979 through their counsel followed by another letter, dated 3‑8‑1980. The respondents sent a reply, dated 21‑8‑1980 through their counsel. On 2‑9‑1980 the respondents filed eviction application on four grounds.

32. It is true‑that the appellant had failed to show that the respondent No. 1 was carrying on some business but that did not establish the bona fide requirement of the respondents for possession of the premises in question. It was also evident that the object of the enhancement of rent from the appellant but that too was not a circumstance which lent any positive support to the case of the respondents. The burden of, establishing that they bona fide required the premises in question for establishing terry towel factory, was on the respondents which they failed to discharge in this case. To reach this conclusion obviously the Controller must be satisfied about the reality of the claim made by the respondents, and this can only be established by looking at all the surrounding circumstances whether they have experience in such kind of business and the means of the respondent No. 1. It is not enough that the respondent No. 3 comes forward and states that they wanted to settle respondent No. 1 who was out of job. The respondents had failed to prove that they required the premises for their personal use for that the burden cannot be said to be discharged by bare and bald statement in the evidence that respondent No. 1 was unemployed and they wanted to start terry towel unit. The clause does not speak of the bona !ides of the landlord, but says on the other hand, that their claim that they required the premises in dispute in good faith that is to say honest in the circumstances. It is impossible, therefore, to hold that the investigation by the Controller should be confined only of the existence of an intention in their mind to establish new business. This intention must be honestly held in relation to the surrounding circumstances. It must be supported by valid reasons as to how their requirement is genuine. That is lacking in the present case. I am of the view that what the evidence showed was mere assertion on the part of the respondents that they wanted to establish terry towel factory and that fell far short of the proof required to establish that the respondents bona fide required the premises in question for establishing the terry towel factory.

33. I, therefore, allow the appeal, set aside the order for eviction passed by the learned Controller against the appellant and dismiss the eviction application filed by the respondents. There will be no order as to costs.

34. A.A. Appeal allowed.