FIRDOUS BEGUM Versus M. SIRAJ AND BROTHERS

1. This is an appeal by the landlady applicant. The eviction application being Rent Case No.1398/81 was filed against the respondent on the ground of personal requirement and default. .

2. The facts leading to the filing of the above appeal are that the appellant is the landlady/owner of the property being 'tenement No.G/3, on plot No.M.R.l/112, Kutchi Gali No.2, Market Quarters Marriot Road, Karachi. According to the appellant, her husband was doing business of Sugar at the premises in question under the name and style of M/s. Matin Bhai Mubin Bhai and Sons but due to losses and restriction in Sugar business her husband closed the business and locked the business place. The respondent is the friend of appellant's husband and requested him to give the premises in question on rent temporarily with the clear understanding that he will vacate the same whenever the appellant's husband require for his personal bona fide need. It is the case of the appellant that in view of the above the premises in question was rented out to the respondent temporarily at a monthly rent of Rs.85. It is the case of the appellant that her husband's income is not sufficient for his livelihood as such her husband bona fide and in good requires the premises in question for establishing and doing his business.

3. According to the respondent‑tenant, the eviction application was not maintainable as it was not filed in the name of the tenant M/s. M. Siraj and Brothers. The case of the respondent is that there was no question of any temporary arrangement as the premises were transferred on payment of the prevalent "Pugree", accompanied by change of rent receipt in the respondent's favour. The respondent also denied the allegation of personal requirement for establishing her husband's business, the appellant filed affidavit‑in‑evidence of her husband and Attorney Mohammad Matin in support of the eviction application. The respondent filed his own affidavit‑in‑evidence in rebuttal. They were cross‑examined by the learned counsel for the respective parties.

4. The Controller negatived that the premises in question was temporary given to the respondent. The Controller found that the appellant's husband is in service and therefore cannot run the business alongwith his service. The Controller dismissed the eviction application.

5. I have perused draft agreement dated 16‑10‑1969 (Ex.A/1). This agreement was executed between M/s Matin Bhal Mubin Bhai and Bros. and M/s. Siraj and Bros. M/s. Siraj Bros. purchased closed concern free from all encumbrances. M/s Siraj and Bros. were at liberty to get the rent receipt transferred in its name or in the name as it may desire. The said firm became the absolute owner and were entitled to enjoy all rights, privileges as enjoyed by the sellers.

6. This document does not show that the sellers reserved their rights to repurchase the same. The case of the appellant in her eviction application that the respondent requested her husband to give the said premises on rent temporarily with the clear understanding that "he will vacate the premises whenever her husband require the same for his personal and bona fide requirement." The appellant's husband stated in para 6 of the affidavit‑in‑evidence that he closed the business and locked the premises temporarily. Her husband repeated the same facts in his affidavit that the respondent requested him to give the shop on rent temporarily with the clear understanding that he will vacate the premises whenever he requires the same for his personal and bona fide use. This witness to a question in cross‑examination replied that "I do not remember if the document Exh. A/1 was prepared signed at the office of M/s. Mainia Bros. we did not receive any money". This witness admitted his signature on Exh. A/1. This witness denied the suggestion that the deal was for Rs.25,000 but official amount of Rs.3,000 was mentioned on Exh. A/2. This witness to a question in cross‑examination replied that tenancy receipt was also changed but voluntarily said but temporarily. This witness admitted that he got transferred the receipt in favour of the respondent. The documents Exh. A/1 and A/2 belie the assertion of the appellant. The appellant deliberately suppressed the true facts that is, the respondent purchased the closed concern from M/s. Matin Bhai, Mobin Bhai and Bros. including the tenancy rights and the rent receipt was changed or transferred in favour of the respondent in pursuance of Exh. A/1 or A/2.

7. The question of bona fide requirement has again been agitated before me. The appellant asserted in her eviction application that her husband's income is not sufficient for livelihood as such the premises in question were required for establishing and doing business of rice and sugar and other 'items therein and the premises are best suited for the said business. Her husband filed affidavit‑in‑evidence in which he repeated the same facts. Her husband also produced certificate of his employer showing consolidated salary of Rs.900. Mr. Rehmat Elahi has contended that the appellant has produced satisfactory evidence that her husband's income is not sufficient for livelihood as such she required the premises in good faith for her husband's occupation. As pointed out by this Court in Hassan Khan v. Mrs. Munawar Begum P L D 1976 Kar. 832 in ordinary circumstances when the owner says that he requires his premises for his own use and occupation the Controller must start with the presumption that the claim of the requirement of premises by the landlord for his personal use and occupation is true and the mere statement of the tenant that the case of the landlord is false, is not sufficient. The learned Controller held that the appellant has failed to prove personal requirement.

8. The whole object of the Ordinance is to make effective provisions for regulation of relations between the landlords and tenants and to protect their interests in respect of rented premises and section 15 of the Sind Rented Premises Ordinance, 1979, specially enumerates the grounds which alone will entitle the landlord to evict his tenant from any premises. Clause (vii) is one of the grounds for eviction of a tenant from the premises. It provides that the landlord requires the premises in good faith for his own occupation. It does not provide that a landlord can evict the tenant from the premises which were given to him temporarily.

9. This takes me to the question that the appellant has proved that she requires the premises for her husband's use and occupation as his income is not sufficient. It is not in dispute that the appellant's husband is drawing a salary of Rs.900 per month. It is also not in dispute that the appellant has got six children. It is also not in dispute that the premises in occupation of the respondent is the only shop which the appellant and her husband has got. The only defence of the respondent is that he paid Rs.25,000 as pugri to Messrs Matin Bhai Mobin Bhai and Brothers. Firstly this was not proved that the respondent paid pugri. Secondly there is nothing on record from which it can be assumed that some amount was paid to the original landlady Shahnaz Begum for the transfer or change of receipt. Thirdly he purchased the closed concern from Matin Bhai Mobin Bhai & Brothers and not from the previous landlady Shahnaz Begum. His grievance is only against Matin Bhai Mobin Bhai and Brothers and not against the appellant.

10. Having regard to the allegation made in the eviction application, the learned counsel for the appellant had to concede that the tenant can be evicted from the premises only when the case falls under clause (vii) of the Ordinance. In fact, the sole question urged by the learned counsel for the appellant that the present case falls under section 15(2)(vii) of the Ordinance and since it falls under section 15(2)(vii) of the Ordinance, the learned Controller has not properly appreciated the scope of that section and has improperly declined to grant an order of eviction, what is necessary under that!, clause is that the appellant must satisfy the Controller that she bona; fidely requires the premises for her husband's occupation. Although there was findings of the Controller on lack of bona fide regarding personal requirement of appellant, yet after hearing the learned; counsel, I find that there was misreading of evidence in this behalf.' I am satisfied that, in the present case, the appellant is entitled to an order of eviction and the view taken by the Controller declining to pass an order of eviction is against the evidence on record. The admitted fact that appellant's husband closed the concern because of losses and he would not sit idle after closing his concern. If during such a period he employs himself in a gainful occupation, would not negate the assertion of bona fide on his part. In that view of the matter the dismissal order has to be reversed.

11. The appeal, therefore, is allowed, the dismissal order is reversed. The appellant's eviction application is granted. The respondent is allowed six months time to vacate the premises.

12. In the circumstances, of the case, there will be no order as to costs.

13. H.B.T./F‑30/K Appeal allowed.