HABIB BANK LTD. Versus THAL JUTE MILLS LTD.

1. This First Rent Appeal is directed against an order dated 11‑7‑1984 passed by the XIIth Senior Civil Judge and Rent Controller, Karachi, whereby she dismissed the eviction application filed by the appellant.

2. The facts leading to the filing of the above appeal are that the appellant is the owner/landlord of building known as Bank House No.2, situated at Habib Square, M.A. Jinnah Road, Karachi and the respondent is the tenant of the appellant in respect of the Room No.5 of the said Bank House at the monthly rent of Rs.225 plus Rs.5.62 (Betterment tax) per month. The appellant filed Eviction Application No.1666 of 1951 against the respondent on the ground that the respondent has committed default in payment of rent and has not paid the rent since June 1979 upto the date of the eviction application and the appellant also filed eviction application on the ground of bona fide requirement for its own use and for the use of its branches in the area. The respondent resisted the eviction application. The appellant filed affidavit‑in‑evidence of their officer Muhammad Inamullah Shaikh. In rebuttal the respondent filed affidavit‑in‑evidence of their Finance Manager/attorney Mohsin Ladhani. They were cross‑examined by the learned counsel for the respective parties.

3. The learned Controller, on the basis of the evidence adduced by the parties and taking into consideration the arguments advanced by the learned counsel for the parties, decided issue NI in the negative, issue No.2 not proved and dismissed the application vide order dated 11‑7‑1984.

4. The appellant being aggrieved against the order dated 11‑7‑1984 has preferred this first appeal on the grounds mentioned in the memo of appeal.

5. Mr. Nasrullah Awan, learned counsel for the appellant has not pressed the ground of default in this appeal. But he has contended that the appellant has established bona fide requirement.

6. On the other hand Mr. Muhammad Saleem Qureshi, learned counsel for the respondent has submitted that the appellant has not established bona fide requirement of the premises in dispute and has filed the eviction application only to enhance the rent.

7. The appellant stated in pare 4 of the eviction application "that without prejudice to the above it is submitted that the premises in occupation of the opponent is bona fide required by the applicant for its own use and for the use of its branches in the area". The respondent denied contents of para 4 and further submitted that "coercive measures have been taken by the applicant Bank to increase the rent and the present application is a continuation of such measures. It is particularly denied that the applicant requires bona fide for its own use and for the use of its branches the said premises". The officer and attorney of the appellant stated in his affidavit‑in‑evidence that the appellant Bank is facing great hardships on account of shortage of space. The appellant Bank which is a pioneer Banking institution and leading bank of Pakistan enlarged to a great extent since the Habib Square building was constructed in the early fifties. He further stated that at that time the appellant had about 64 branches and the Foreign Exchange Branch was working only on the ground floor and first floor and since that time there has been a tremendous increase in the business of the appellant Bank especially of its branches situated in the area i.e. Foreign Exchange Branch, Wood Street Branch, Cloth Market Branch, Kochinwala Market Branch, M.A. Jinnah Road Branch and Bombay Bazar Branch. The attorney of the appellant further stated that all these branches are situated within a radius of 100 to 500 yards. The attorney further stated that the non‑public dealing departments of Foreign Exchange Branch and other branches will be shifted to .the premises presently in the occupation of the respondent and the other tenants against whom also eviction cases had been filed'. The attorney of the appellant further stated that "the premises when it is vacated by the opponent will not be relet to any other tenant or person and the same will be kept and occupied by the applicant and its branches for their own bona fide use". The attorney of the appellant also gave details in his affidavit‑in‑evidence. He denied the suggestion that they had filed eviction cases against the companies of Habib Group. He admitted in cross‑examination that in this case the eviction case was filed as the rent was not increased. The attorney also denied the suggestion that the appellant had taken false plea of requirement in order to pressurize the respondent to increase the rent.

8. As against the above evidence the Finance Manager/attorney of the respondent stated in his affidavit‑in‑evidence that the rented premises are situated on the upper floors of the building and convenient use by the Bank for its own purpose does not appear to be justified. He further stated that "during the period immediately preceding the date of filing ejectment application in this case no banking activities appear to have increased and no new branches appear to have been opened in the building or near about. There was no justification and no factual basis in raising the plea by the applicant Bank for requirement of the tenanted premises for its own use or for the use of its branches in the area". The attorney to a suggestion in cross‑examination replied "I do not know that how many branches are of the applicant either in Karachi or Pakistan. I do not know that the applicant is the biggest bank in Pakistan".

9. A perusal of the eviction application and the affidavit in‑evidence of the officer of the appellant Bank would indicate that there has been a tremendous increase in the business of the Bank. It is pertinent to note that the officer of the appellant Bank was cross‑examined at length but no suggestion was made to him that the appellant Bank does not require the premises in dispute for their own use.

10. It is well‑established legal position that the assertion in the eviction application about requirement of the appellant Bank for its use and for the use of its branches has been fully supported in appellant's officer's deposition and nothing has been brought out in cross‑examination which could show that the claim of personal requirement for its own use and for the use of its branches is false or is based on wrong, statement or disproved in rebuttal, has to be accepted. The respondent's attorney, stated in his affidavit‑in‑evidence that no banking activities appeared to have increased and no branches appear to have been increased in the building or near about. It is pertinent to note that the appellant's officer when appeared in witness‑box, was not suggested this fact. I am of the view that the evidence in this case fully justified the claim by the appellant Bank that it requires the premises in question for its own use and for the use of its branches because of the tremendous increase in the business of the banking.

11. It is contended by the learned counsel for the respondent that the appellant Bank wanted to enhance the rent and in order to achieve that end, the plea of personal requirement has been raised and filed the present eviction application. It is well‑established legal position that a demand of higher rent by itself does not cast any doubts about the personal bona fide requirement if the factum of bona fide requirement is independently proved.

12. The learned counsel for the respondent has lastly contended that no details of personal requirement were given in the eviction application. This contention is devoid of any force. Firstly, it is not necessary to give all the details in the eviction application. Secondly, 4 no such plea was in the written statement. Thirdly, the only objection f in the written statement taken was that the appellant Bank wanted to. enhance rent which was accepted by the respondent and in order to achieve that end a plea of personal requirement has been raised. Fourthly, the necessary details have already been given in the affidavit‑in‑evidence of the appellant's witness. Fifthly, nothing has been asked in the cross‑examination of Mr. Muhammad Inamullah Shaikh in regard to the tremendous increase in the business of bank and the personal requirement for its own use or for the use of its branches. It is a well‑established position in law that if some fact is deposed or stated in examination‑in‑chief which is not questioned in the cross‑examination, the presumption is that that part of the evidence is deemed to have been accepted by the party against whom that evidence has been given. Acting on this principle, I accept the evidence of the officer of the appellant Bank in respect of personal requirement having not been questioned. The officer of the bank has, made statement on oath. The evidence led from the respondent's side is not enough to set aside the finding. The findings on the question of bona fide requirement of the appellant for its use or for the use of its branches, are contrary to law and are set aside. The evidence on the file amply proved that the premises in possession of the appellant Bank was not sufficient and suitable for its use, its bona fides cannot be questioned on any of the grounds canvassed by the learned counsel for the respondent. Consequently, this appeal, on, this ground, is allowed. For the aforesaid reasons the appeal is allowed with no order as to costs. The respondent is, however, allowed two months' time to vacate the premises in question.

13. H.B.T./H‑97/K Appeal allowed.