NOOR AHMAD Versus IMRAN AHMED

This appeal at the instance of tenant is directed against the order dated 14‑2‑1987 of the learned VIII Senior Civil Judge and Rent Controller (South) Karachi, passed in Rent Case 544/82 whereby he has directed the appellant to hand over vacant possession of the shop No.105 situated in Saddar Cooperative Market, Super Market Building, Abdullah Haroon Road, Karachi, (for short "the demised premises").

2. The respondent having purchased the demised premises in July 1981 admittedly served a notice under section 18 of the Ordinance upon appellant on 12‑9‑1981 (which has not been placed on record). On 4‑2‑1985 the respondent filed Rent Case No. 544/82 for eviction of the appellant on the sole ground of bona fide personal requirement. In the application neither the business which was sought to be carried on in that demised premises nor the availability of the funds or the financial position of the respondent was disclosed. In para. 5 of the application it was simply mentioned "that the applicant requires the above said shop in good faith for his personal bona fide use for parrying on business in the same and the applicant does not have any other shop". And likewise in para. 7 thereof it was reiterated that the applicant requires this shop for his personal bona fide use for carrying on business in the same. The appellant filed written statement denying the ground of alleged personal bona fide requirement and also pleaded that the application was motivated by malice as the respondent wanted to exhorbitantly increase the rent. It 'was further pleaded that the appellant had paid a sum of Rs.40,000 to the father of the out‑going landlord as and by way of pugree at the time of obtaining the shop on lease. The appellant also pleaded that the father of the respondent was Vice‑President of the Cooperative Market and was in the habit of purchasing the shops in the name of his sons and after getting the same vacated from the tenants to re‑sell the same at higher price.

3. The parties led evidence in support of their respective case. The respondent filed his own affidavit in evidence whereas the appellant besides examining himself also produced affidavits of two witnesses, namely, Noor Ali and Riazuddin. The learned Rent Controller by his order dated 21‑1‑1984 dismissed the application on merits. The respondent carried an appeal to this Court being F.R.A. 242/84 which was allowed on 1‑12‑1986 and the case was remanded to the trial Court with the remarks that the appellant's witness may be cross‑examined. The learned trial Court vide impugned order, as already stated, has allowed the application.

4. The sole question that arises for determination in this appeal, as pointed out above, is whether the respondent has succeeded in establishing the case of his bona fide personal requirement of the dismissed premises and whether the learned Rent Controller has rightly allowed the application.

5. I have heard the learned counsel for the parties at length and have also with their assistance perused the evidence available on record as well as the impugned order.

6. The learned counsel for the appellant submitted that the landlord had to prove his own case without being benefited by the weakness, if any, of the tenant's case. He submitted ‑that in the application neither the business which was sought to be carried on by the respondent was mentioned nor was it disclosed that he was financially in a position to set up any new business in the demised premises. He urged that the failure of the landlord to disclose the said vital information in the application itself rendered the tenant unable to meet the case sucessfully, if any, later on improved during the trial. The learned counsel drew my attention to the authorities reported in 1984 C L C 2837, (Muhammad Azizullah v. Abdul Ghaffar), PLD 1985 Kar. 624 (Sultan Press Limited, Karachi v. Muhammad Hasan), 1986 C L C 1100 (Akhlaq‑un‑Nabi v. Nawab Ahmad Shams) and 1986 CLC 2858 (Ghulam Nabi v. Muhammad Sachal).

7. In the first above‑noted case it has been held by a learned Single Judge of this Court as under:

"The fact that the landlord requires the premises for his bona fide use and occupation has to be established by evidence. The purpose for which it is required should be genuine and bona fide. To establish that the landlord wants to carry on business in the disputed premises he has to show the nature of business he wants to carry on. Relatively it may also be necessary for consideration whether the landlord has sufficient resources to carry on that business or that he has made necessary arrangements to start the business. The landlord without any resources or fund or arrangement which he may have made to raise the fund, cannot be expected to open and establish a business provided he poves that the business he wants to start does not require investment of any fund or that it requires only nominal fund. Under law mere statement that the landlord wants to carry on business in the disputed premises is not sufficient. Additionally, it has to be established that the requirement is bona fide and in good faith. It is only after all facts relating to the funds and arrangements made by the landlord have been established it is possible to prove bona fides and good faith. In the present case the appellant had not produced any evidence of this nature except that he has made a statement on oath that he has retired and wants to carry on business."

8. In the second case also another learned Single Judge of this Court expressed the same opinion in the following words:‑

"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 are 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 resources."

9. The third case has also been decided by the same learned Single Judge who decided the second above‑reported case. His Lordship reiterated his views in this judgment in these words:‑

"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 a 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."

10. In the last mentioned case it is held 'the landlord has first to rove the bona fides of his requirement before any burden or proof in rebuttal can be shifted upon the tenant. In the present case, this landlord has not discharged the burden and the weakness if any in the case of the appellant tenant would not help the landlord'.

11. It is pertinent to note here that the respondent in his affidavit‑, in‑evidence, for the first time, deposed that he wanted to carry on the business of handicraft in the demised premises. Here also he did not disclose as to whether he is financially in a position to set up the business or not. However, during the cross‑examination an effort was made by the appellant to show that he had no sufficient funds available with him to do so. In reply to a question during cross- examination the respondent deposed 'the amount of Rs.90,000 only was sent by my elder brother who is residing, in Holland. I do not have any bank account or bank balance. While replying to another question put to him during his cross‑examination the respondent stated that he was jobless previously and was studying and sitting in the shop of his uncle in order to learn business affairs. The appellant in his own affidavit‑in‑evidence adhered to the stand taken by him in his written statement and denied the allegation of the respondent. He further deposed that he had no capital as required for running the shop nor had any experience of handicraft business. He also deposed that the respondent had another shop also and that a shop wherein a business under. the name and style of Data Electronics is being carried on belongs to the respondent. He, however, further in reply to another question admitted that he could not say that the shop Data Electronics was not owned by the respondent. He also deposed all the other facts as already mentioned in the written statement particularly with regard to his having paid Rs.40,000 to the out‑going landlord as Pugree. D.W.2, Noor Ali, however, during cross examination admitted that the respondent did not own any other shop except the demised premises. D.W. Riazuddin, however, in his affidavit deposed that the respondent had neither any capital nor experience to run the business. During cross‑examination he deposed that he could not say whether the applicant required the premises for his own use. He admitted that the respondent had experience but then deposed that he did not know whether he had funds to establish his business.

12. Mr. Muhammad Akram Zuberi, learned counsel for the respondent, on the other hand, supported the impugned order by inter alia, contending that the respondent had established on record that he had managed to get the funds of Rs.90,000 for acquiring the business pr6mises. This fact, the learned counsel urged, itself shows that he is in a position to make the funds available to carry on the business. He submitted that it was not necessary for the respondent to produce specific evidence of the availability of the funds since no such plea had been specifically taken in the written statement. In this connection the learned counsel referred to a decision of this Court reported in 1981 C L C 1091 at page 1096 wherein it is held that:

"What is necessary in this context is to see whether the landlord has sufficient evidence to satisfy the Rent Controller that the premises in question are required in good' faith for his own occupation or use of his spouse or his child and in producing that evidence it is not necessary that the landlord must produce evidence of the availability of the funds unless such plea is taken by the tenant specifically in the written statement necessitating recording of evidence on that point. When such plea is not taken by the tenant initially, it is not necessary for the landlord to produce such evidence voluntarily."

The counsel further contended that no doubt the respondent has not made a specific mention in the application about the nature of business he intended to set up and the availability of the funds with him yet during his evidence he had clearly mentioned the nature of business which he wanted to carry on and that aspect of the case has not been demolished during his cross‑examination. He also submitted that no specific question was put to the respondent to the effect that he did not have the funds to carry on business. He also urged that the respondent has established that he had an experience as is evident from the answer made by him during his cross‑examination. He further stated that the respondent has stated that he was jobless and was a family man and hence wanted the demised premises for his personal requirement. The learned counsel also stated that there was no proof on record that Data Electronics belongs to the respondent. In reply to this argument, 1 may mention here, the learned counsel for the appellant pointed out that in two newspapers, namely, Aghaz and Star in their issue of 22‑4‑1984 had inserted a news that the respondent (Khawaja Imran) was found to be indulging in illicit sale and distri bution of liquor in Saddar Cooperative Market. This news as such appeared in the Star; whereas in Aghaz it was further reported that Khawaja Imran, the owner of shop was found to be indulging in the illicit sale of liquor and pornography. I am afraid I cannot accept this contention that on the basis of these newspapers' reports the respondent could be held to be the owner of another shop in the said market. The learned counsel for the respondent also contended that there were contradictions in the evidence of the appellant and his witnesses with regard to the payment of Rs.40,000 to the out‑going landlord. At one place it was stated to be a deposit whereas at another place it has been mentioned as a Pugree. The learned counsel for the respondent also invited my attention to the authorities reported in 1980 S C M R 593, P L D 1970 Kar. 832 and 1981 C L C 1091 at page 1096._ (already referred to above).

13. I have given my earnest consideration to the submissions` made by the learned counsel for the parties. From the facts narrated above it is explicitly clear that in the application the respondent did not disclose or make out a case with regard to the business sought to be carried on in the demised premises nor he specifically mentioned about the availability of requisite funds to set up any new business in the demised premises. I am in complete agreement with the views expressed by my two learned brothers in the cases of (1) Muhammad Aziz Ullah, (2) Sultan Press Limited and (3) Akhlaq Nabi (supra). In my opinion it is incumbent upon the landlord to plead and prove all necessary facts to establish his bona fide need. It is also necessary for providing the tenant a fair and reasonable opportunity to meet the case for alleged personal requirement of the landlord. It is by now too well‑established a proposition by authorities to be mention that the applicant (landlord) has to succeed on the strength of his own case rather than upon the weakness of the defence set up the tenant. In certain cases, like the one in hand, it is imperative' for a landlord to plead and prove the nature of business and the financial ability or resources to set up the same in order to satisfy the Controller and the appellate authority the genuineness and the personal bona fide need. I may caution that I should not be taken t hold it to be a condition sine qua non in all cases. The failure to d so in certain cases of landlords such as the Bankers, well‑established or reputed firms, companies or individuals may not be of vita' C importance. However, upon appreciation of the facts and circumstances of this case as well as the evidence on record, I do not feel hesitation to hold that the respondent has failed to prove that his requirement of the demised premises is bona fide.

14. In the result, the appeal is allowed and the impugned order, dated 14‑2‑1987 is set aside. The parties are left to bear their own costs.

A.A.!N‑90/K Appeal accepted.