ANISUR REHMAN Versus SHARIFA KHATOON

1. This First Rent Appeal is directed against the order, dated 10‑12‑1983 passed by the Xlth Senior Civil Judge and Rent Controller, Karachi whereby he allowed the eviction application filed by the respondent No. 1 and directed the appellant to vacate the disputed shoo within sixty days from the passing of the order.

2. The facts which give rise to this appeal are that the respondent No. 1 is owner and landlady of Shop No. 35/3, Road No. 3, Aligarh Colony, Orangi Town, Karachi and the appellant is tenant in respect thereof at the monthly rental of Rs.60. The respondent No. 1 filed Eviction Application No. 2665 of 1978 on the ground of bona fide personal use. The application was also filed on the ground of subletting and stated therein that ‑the appellant sublet the same to respondent No. 2 The appellant resisted the eviction application.

3. The respondent filed affidavit‑in‑evidence of her son Shaikh Abdul Qadir and Haji Gul Muhammad besides her own affidavit. In rebuttal the appellant and respondent No. 2 filed their own affidavit‑in- evidence. They were cross‑examined by the learned counsel for the respective parties.

4. The learned Rent Controller, on the basis of the evidence adduced by the parties and after taking into consideration the arguments of the learned counsel for the parties, decided both the issues in the affirmative and allowed the eviction application vide order, dated 10‑12‑1983.

5. The appellant being aggrieved against the order, dated 10‑12‑1983 of the XIth Rent Controller, Karachi, has filed this first rent appeal on the grounds mentioned in the memo. of appeal.

6. Mr. Shafaat Hussain the learned counsel for the appellant has contended that the learned Rent Controller while passing the impugned order has misread the entire evidence and has not given proper effect to the evidence on record. On the other hand Mr. S. Nabi Raza has submitted that the finding of the learned Rent Controller is in accord with the evidence on record.

7. It is pertinent to note that the respondent No. 1 in her eviction application stated that the respondent required the shop in question for her bona fide personal use and occupation and contacted appellant and requested him to vacate the shop in question whereupon he asked her to contact the respondent No. 2. The respondent No. 1 on the advice of appellant contacted respondent No. 2 and apprised him of the fact and about the need of the shop in question for her personal bona fide use and occupation whereupon the respondent No. 2 informed her that appellant rented out the shop in question at a monthly rent of Rs.300 and he had also paid Rs.10,000 as Pagri. The appellant filed written statement and denied the contents of paras. 3, 4, 5 and 6 of the eviction application. The respondent No. 1 filed affidavit‑in‑evidence and reiterated the same facts. It is pertinent to reproduce the relevant portion of her cross‑examination and which reads as under:‑‑

8. "My son used to go for the collection of the rent from the opponent. I never went to the disputed shop for collecting the rent. I never went to opponent for asking him to vacate the premises in case on the ground of personal requirement but however, my son went to him for this purpose. The opponent never informed me about the subletting of the shop but however, I was informed by my son Abdul Qadir."

9. Shaikh Abdul Qadir, the son of the respondent No. 1 filed his affidavit -in‑evidence. It is advantageous to reproduce paras. 4, 5, 6 and 7 of the affidavit‑in‑evidence and the relevant portion from his cross -examination which read as under:‑‑

10. "(4) That the applicant being in need of the said shop for personal use to run a business through me, I and my mother contacted O.P. No. 1 and requested him to vacate the same whereupon he asked to contact O.P. No. 2."

(5) That O.P. No. 2. was contacted and apprised him of the fact regarding bona fide need of the said shop and requested him to vacate, he gave out that the shop was let out by O.P. No. 1, to him at monthly rent of Rs.300 which he is paying to O.P. No. 1 and that he had paid Rs.10,000 against delivery of possession to O.P. No. 1, and that O.P.No. 1 had given out that he was the owner of the property and O.P. No. 2 refused to vacate the shop.

(6) That I say that fact of subletting of the said shop by O.P. No. 1 to O.P. No. 2 was not within our knowledge prior to the information given by O.P. No. 2.

(7) That I say after subletting the shop in dispute the O.P. No. 1, is carrying on his business under the name and style 'Photo Fame' North Nazimabad, Karachi and has nothing to do with shop in dispute except getting Rs.300 per month.

11. I used to go to opponent for collecting of rent. None else ever contacted the opponent for this purpose. Lastly I went to opponent for collecting rent about 5 or 6 years ago. Lastly I met the opponent Anis himself in the disputed shop. Voluntarily says that I used to go to the opponent at their shop Haideri for collection of rent and of the disputed shop. About four years back I lastly visited the disputed shop. I had gone there just to ask the opponent to vacate the premises in case. Prior to that I have no occasion of going to the disputed shop. I also never went to the disputed shop after my last visit. Lastly I met one Anwar who was sitting in the disputed shop. I asked Anwar to vacate the disputed shop. The opponent was asked to vacate the premises in case in the month 1977 or so. I have not filed the copy of said notice in the instant application. It is incorrect that I never asked the opponent to vacate the disputed premises as the same was required by us.

12. The respondent No. 1 also filed affidavit‑in‑evidence of Hap Gul Muhammad. Para. 2 of affidavit‑in‑evidence of Hap Gul Muhammad and relevant portion from his cross‑examination are reproduced herein below: ‑‑

2. That I say that in my presence the applicant and his son requested the opponent No. 2. Mr. Anwar to vacate the shop as they require for their own use and occupation, and they have been asked to contact O.P. No. 2 by O.P.No. 1, whereupon the O.P. No. 2 Mr. Anwar told to the applicant and her son that he has taken the shop on Rs.300 p.m. from Mr. Anis (O.P. No 1) and has also paid Rs.10,000 as Pagri, and refused to vacate the shop.

13. The applicant's son Qadir told me that when he went to the disputed shop for collection of rent, he found another person sitting over there but not the opponent Anis. I accompanied him to the disputed shop after hearing dispute. Before giving the applicant informed me that the opponent sublet the premises to someone else for consideration of Rs.10,000."

14. According to the learned Rent Controller that the appellant owned another shop in Haideri and the respondent No. 2 used to sit at the shop in question. The appellant failed to establish that respondent No. 2 was his employee and no documentary evidence adduced by the appellant to suggest that respondent No. 2 was his employee, as such he conceded that the appellant had sublet the shop in question to the respondent No. 2. I am of the view that the respondent No. 2 sits in the shop in question which fact alone provides no proof in support of the plea of subletting. The respondent No. 1 stated in her eviction application that she approached the appellant and requested him to vacate the shop. The respondent No. 1 in her cross‑examination admitted that she did not approach the appellant but her son approached him for this purpose. Her son stated in his deposition that he used to go for collection of rent. He further stated that he went to collect rent five or six years ago. It is pertinent to note that his deposition was recorded in 1981 and eviction application was filed in 1978.

15. In view of the above it seems that the learned Rent Controller has misread the evidence. On the basis of the evidence on the record, therefore, the plea of subletting has no substance and the finding of the Rent Controller is set aside.

16. The respondent says that she needed the shop in dispute for herself and her son. Therefore, the question is whether she has satisfactorily proved requirement? In the case of Commissioner of Income Tax W.B. v. D.P. More A I R 1971 S C 2439, the Supreme Court of India observed as follows:‑‑

17. "Science has not yet invented any instrument to test the reliability of the evidence placed before a Court or Tribunal. Therefore, the Courts and Tribunals have to judge the evidence before them by applying the test of human probabilities. Human minds may differ as to the reliability of a piece of evidence. But in that sphere the decision of the final fact finding authority is made conclusive by law."

18. The Preamble of the Sind Urban Rent Restriction Ordinance, 1959 clearly indicates that it was promulgated to make effective provisions for restricting the increase of rent of certain premises within the limits of urban areas and the eviction of tenants therefrom in the Province of Sind. Therefore, it is obvious that the Legislature wanted to make a provision for better control of premises and to prevent unreasonable eviction of tenant therefrom.

19. The whole object of the said Ordinance is to control increase of rents and eviction. Section 13 of the said Ordinance specifically enumerates the grounds which will entitle the landlords to evict their tenants. Clause (ii) of subsection (3) of section 13 contains one of such grounds namely, that the landlord/landlady requires the premises in good faith for his/her own occupation or use or for the occupation of any of his/her male children. Then subsection (4) of the said Ordinance provides that when the landlord /landlady who has obtained the possession of the premises under section 13 relets the building or premises to any other person other than the previous tenant or puts it to a use other than personal use within two months of such possession. "the tenant who has been evicted may apply to the Controller for any order directing that he shall be restored the possession of the building or the premises, as the case may be, and the Controller shall make an order accordingly."

20. It is clear that these provisions have been enacted solely for the benefit of the tenants, who having regard to the lack of adequate accommodation were left at the mercy of the landlords.

21. From the phraseology used in clause 00 of subsection (3) of section 13 of the said Ordinance, it is further clear that the landlady has to prove that he/she 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 /landlady would not be enough to show that the landlord /landlady "requires the premises in good faith". The landlord /landlady must allege and prove certain circumstances or facts which go to prove his/her requirement. The law does not require a landlord /landlady to establish 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 /landlady requires the premises for his/her reasonable needs and that he/she 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 /landlady can be said to require premises for his/her own use and occupy the premises. What is necessary is that he/she should need them for his/her own use and occupation. The need has to be reasonable and bona fide. The onus of proof of this is certainly on the landlord /landlady. Although the word 'reasonable' does not appear in the Ordinance, the question of reasonableness is relevant in deciding the bona fides of the landlord/I landlady. Gross unreasonableness tray in proper circumstances lead the Controller to reach a conclusion that the landlord's/landlady'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 /landlady is not sufficient to give him/her a right to evict the tenant.

22. 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 landlord /landlady 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.

23. In the application for ejectment a vague ground was given that she "respondent now being in need of the said shop for her bona fide use and occupation contacted appellant and requested him to vacate the premises whereupon he asked the applicant /respondent to contact opponent No. 2". It has not been stated as to what is the business she wanted to start. In her affidavit, she repeated the same facts as stated in eviction application.

24. I am of the humble opinion that reading of the provision it is obvious that if the requirement of the landlady be genuine and she satisfied the Rent Controller, she obtained the possession of the premises in question. Clause (ii) clearly shows both affirmatively and negatively that the landlady herself satisfied the Rent Controller about her claims, before she can obtain an order in her favour. The Rent Controller is not satisfied about the genuineness of the claim. To reach this conclusion obviously the Rent Controller must be satisfied about reliability of the claim made by the landlady, and this can only be established by looking into the surrounding circumstances, such as the business which she wanted to start. It is not enough that the landlady comes forward and says that she needs the shop in question. The clause speaks not of the bona fide of the landlady or landlord, but says, on the other hand, that the claim of the landlady that she requires the premises in question in good faith, that is to say honest in circumstances. It is impossible, therefore, to hold that the investigation by the Rent Controller should be confined only to the existence of an intention in the mind of the appellant. This intention must be honestly held in relation to the surrounding circumstances and as to the suitability of the place for their requirement.

25. In the application of eviction a vague ground was given that she wanted to start business. It has not been stated as to what kind of business she wanted to do. The respondent filed her own affidavit‑in -evidence. It has not been stated as to what kind of business she wanted to start. For this purpose she must put before the Controller all the necessary details which are required for granting relief. On such vague allegation as made in the eviction application or in her affidavit‑in‑evidence, the respondent cannot expect to get relief on the ground of requiring the shop in question for the occupation of her son.

26. That itself shows that the application is lacking in bona fides and it cannot be said that the respondent has established her bona fide for her occupation and for the occupation of her son. A mere ispe dixit of the appellant that she required the premises in question for herself and her son is not enough. It must be supported by valid reasons as to how her requirement is genuine and that is lacking in the present case.

27. In my humble opinion the learned Rent Controller has not considered the material placed before him. Therefore, in my humble opinion, the order passed by the learned Rent Controller cannot be sustained.

28. In the result, therefore, the appeal is allowed. However, in the circumstances of the case there will be no order as to costs.

29. H . B . T . Appeal allowed.