HAKEEM Versus SHAMSUNNISA BEGUM

This appeal is directed against the order of the then VIth Rent Controller Karachi dated 30‑3‑1985 whereby he allowed the application of the respondent and directed the appellant to vacate the premises in dispute within 2 months thereof.

2. The respondent had filed an application under Section 15 of Sind Rented Premises Ordinance 1979 alleging therein that the appellant was her tenant in respect of ground floor of premises bearing No.1/154 with exception of a room, store and staircase at the rate of Rs.260 per month. The appellant was using the said premises as a 'Dawakhana' and store. She has alleged that she requires the premises in dispute for the personal use of her son Mohammad Saleem who was married and was without any business and therefore wanted to carry on his business in these premises. She has also alleged that the appellant was a defaulter in payment of rent with effect from 1‑9‑1983.

3. The application was resisted by the appellant who filed written reply admitting the tenancy as well as the rate of rent. He denied that he was a defaulter. He alleged that the respondent herself avoided to receive the rent of August, 1983 and therefore he tendered the same by money order which too was refused by the respondent. He therefore started depositing the same in the Court. Regarding the personal requirement it was pointed out by the appellant that the premises were being used as residential and not commercial and were in fact not suitable for commercial purposes, hence respondent's requirement thereof was not bona fide.

4. On the pleadings of the parties the points that came for determination before the learned Rent Controller were regarding the default in, payment of rent and the requirement of the premises for bona fide personal use of respondent's son. He found both these points in the affirmative and allowed the application as shown above.

5. Alongwith this appeal a photo copy of money order coupon, photo copy of the application under Section 10(3) of Sind Rented Premises Ordinance, 1979 and the order of the Controller dated 13‑10‑1983 thereon and photo copies of rent receipts deposited in pursuance of that application on 9‑10‑1983, 15‑12‑1983, 14‑6‑1984 and 9‑12‑1984 amounting to Rs.1,052; Rs.1,580, Rs.1,576 and Rs.1,578 respectively were produced. These documents were admitted with the consent of the Advocate for the respondent by my learned brother Mr. Justice Zahoorul Haq (as he then was) on 28‑5‑1985. On 2‑10‑1986 when I was hearing the arguments of this case I observed that no opportunity was given to the respondent to explain these documents. Mr. Zafar Alam Khan Advocate for the respondent conceded before me that he did not dispute the genuineness of these documents and that from these documents it was proved that the appellant had been tendering and thereafter depositing rent in the Court in time. Hence there was no default in payment of rent. In this view of the matter I reverse the findings of the learned Rent Controller on the point of default in payment of rent and hold that the appellant was not a defaulter.

6. Now I would come to the issue of requirement of the premises for bona fide personal use by Mohammad Saleem the son of the respondent.

Mr. Syed Inayat Ali, Advocate frankly conceded that the counsel who had argued this case before the Rent Controller was not correct in stating that the premises being residential one could not be required by the respondent for commercial use of her aforesaid son. He therefore confined his arguments to the short point that the respondent's son was already carrying on a business and therefore his alleged requirement for another shop was not bona fide. He referred me to the affidavit of Mohammad Saleem wherein he has alleged that he wanted to do the business of sanitary wares and the allied in the premises in occupation of the appellant. In that context he referred me to the admission made by Mohammad Saleem in his cross‑examination which reads as under:‑

"My brother Moeen is presently at Saudi Arabia. He is there since last one year. My eldest brother Mohammad Naeem is also at Saudi Arabia. It is not a fact that we all three brothers run the business under the name of Khan Brothers. I myself run that business."

7. The learned Rent Controller had taken into consideration the question of the requirement of these premises for the bona fide personal use of the respondent's son. He had rightly observed that respondent's son had no other shop and the shop in dispute being located on the ground floor of his residence and facing towards the main road is most suitable for his running of business which fact is admitted by the appellant himself. He had also pointed out that another room which was got vacated by the respondent earlier was rented out to some other tenant but that could not militate against the bon fides of the respondent as that room was on upper storey and therefore could not have been used for commercial purposes. Mohammad Saleeshas stated in his examination‑in‑chief that the shop which he warnining was owned by his elder brother Mohammad Moeen. The mere fact that Mohammad Saleem had gone to Saudi Arabia for one yea would not mean that Mohammad Saleem had disconnected all hi connections with that shop or had no intention whatsoever to return to Pakistan to run his shop. Mohammad Naeem is present in Court today and it was stated by him that he has returned from Saudi Arabia and has started supervising his own shop.

8. Under these circumstances it would appear that there is nothing which goes against the bona fides of the requirement of this shop by the son of the respondent. The discretion exercised by the learn Rent Controller, therefore, on this issue does not call for an interference. The allegation that the respondent wanted enhancement in the rent and therefore the requirement was mala fide also does not militate against the requirement in view of the settled law on this point.

9. Under these circumstances I do not find any merit in trail appeal and dismiss the same. The appellant is allowed 6 months from today to vacate the shop and no notice ;o J/D will be necessary the execution application is filed after the expiry of six months.

A . A . / M‑436/ K Appeal dismissed