SHER AHMAD JAN Versus ZUBEDAN NASREEN

Being aggrieved and dissatisfied with the order dated 18‑4‑1987, passed by Mr. Badar Alam Bachani, Additional Controller of Rents, Clifton Cantonment, Karachi, thereby directing his ejectment from the disputed premises, the appellant has filed the present appeal under section 24 of the Cantonments Rent Restriction Act, 1963.

2. The appellant is the tenant of respondent in respect of premises bearing No.24‑C, Commercial Area, Defence Housing Authority, Karachi, consisting of first floor and a shop on the ground floor at a monthly rent of Rs.2,000. On 24‑7‑1986, the respondent filed an application for ejectment against the appellant on the sole ground of personal requirement. It is the case of respondent that after shifting from Khanewal, she was residing with her relative at Karachi. She wanted to establish the business of Boutique and Tailoring and, therefore, required the disputed premises for her personal bona fide use and occupation.

3. The appellant has disputed the averments made by the respondent in her application for ejectment. It was pleaded that the respondent did not hold any diploma in Tailoring or any experience of running a Boutique. It was alleged by the appellant that the case was filed by the respondent only with a view to coerce him to accede to her illegal demand of further increase in the monthly rent.

4. On the pleadings of the parties the following issues were framed: ‑

(1) Whether the applicant requires the disputed premises in good faith for her personal bona fide use ?

(2) Relief ?

5. The respondent has examined her attorney A. Rasheed (P.W.1), while the appellant has examined his attorney Muhammad Siddiq (D.W.1), and Alauddin (D.W.2).

6. On the basis of evidence available on record, the learned Additional Controller of Rents decided issue No. 1, against the appellant and consequently directed his ejectment from the disputed premises within three months. This order dated 18‑4‑1987, is the subject‑matter of this appeal.

7. I have heard Mr. Khalil‑ur‑Rehman, learned counsel for the appellant and Mr. Aziz‑ur‑Rehman Shaikh, learned counsel for the respondent.

8. The evidence which has come on record shows that the shop was initially rented out to appellant at the rate of Rs.700 p.m. in the year 1976. Thereafter the flat was also rented out to the appellant, and the rent was increased to Rs.1200 p.m., which was subsequently raised to Rs.2,000 p.m. The record also shows that the respondent, who is an issueless widow, had shifted to Khanewal, from where she again returned to Karachi in the year 1986 and has re‑settled. It is the case of the respondent that she is presently residing with her relative and wants to establish the business of Boutique and Tailoring in the disputed premises. The appellant has seriously questioned the bona fide requirements of the respondent to occupy the said premises on the following grounds which militated against her bona fides:‑

(a) Failure of respondent to appear before Additional Controller of Rents to answer material questions relating to her past residence, business aptitude, experience and financial resources.

(b) Acceptance of Rs.47,000 as Pugree at the time of letting out the premises to the appellant.

(c) Enhancement of rent by the respondent from Rs.700 p .m. to Rs.2,000 p.m. during the period of about ten years.

(d) The respondent did not hold any Diploma in Tailoring or any experience of running a Boutique, and the case was filed by her to coerce the appellant to accede to her illegal demand of further increase in the monthly rent.

9. There is no rule of law that bona fides being a subjective matter can only be proved by the landlady stepping into the witness box. It can be proved in an ordinary way like any other fact in issue, and depends upon the circumstances of each case. The cases of Haji Rashid Ahmad v. Mst. Akhtari Jehan reported in 1988 CLC 262, Mst. Mehrunnisa v. The Controller of Rents, Hyderabad and 3 others reported 1986 CLC 422, and Arshad Umar and another v. Begum Nazrul Askari reported in PLD 1985 SC 38, are relevant authorities on this subject. In the last cited authority the Supreme Court observed that failure of landlady and her son to appear before the Rent Controller and offer themselves for cross‑examination was not fatal to their plea that they required premises in good faith for their personal occupation and use. It may be recalled that Abdul Rasheed, attorney of respondent had in fact rented out the disputed premises on her behalf and he was looking after the same during her stay at Khanewal. He is, therefore, not a stranger to the respondent and knew about her requirements.

10. The plea of payment of Rs.47,000 as PUGREE to respondent appears to be an afterthought. No such point was raised by the appellant in his written statement filed at the initial stage of case. The appellant claims to have paid this amount to respondent in presence of Allauddin (D.W.2). Allauddin (D.W.2) however, goes a step further by stating that this amount was paid to respondent by him. In such a situation the assertion of the respondent that there was no PUGREE system in that area during the days when the premises was rented out to appellant, appears to be correct.

11. Admittedly the shop was rented out to the appellant at a monthly rent of Rs.700. The appellant has, however, not disputed that the flat situated on first floor of the shop was also taken on rent by him. The increase of rent was, therefore, natural. At any rate the demand of enhanced rent would not by itself prove the mala fides of the landlady in seeking ejectment on the ground of personal requirement.

12. The respondent wants to establish the business of Boutique and Tailoring in the disputed premises. She also wants to occupy the flat on first floor for residential purpose. Muhammad Siddiq (D.W.1), who is attorney of appellant has himself stated that the construction of shop and upper floor is such that they can be used as one compact unit only. The need of the respondent for the use of the shop for the business of Boutique is criticised by the appellant mainly on the ground that she has no past experience. This objection was considered and ignored by the learned Additional Controller of Rents for good reasons, who was of the view that the respondent was not going to seek any employment for which academic qualification or previous experience was necessary. The word 'business' applies to an occupation of a mercantile or commercial nature. The physical involvement for carrying on business or trade is not necessary. The impression that the respondent should have skill or capability to do the business of tailoring herself is wholly misplaced. The word 'business' by itself is very comprehensive and it may at some time include carrying on of a business through employees.

13. The expenditure said to have been incurred over the repairs and renovation of the disputed premises by the appellant has again no relevancy in a situation like this. The respondent has got no other residential‑cum‑commercial premises. The disputed premises is F ideally suited to her requirements. After all she being the owner of the premises has every right to have its possession irrespective of hardship, caused to the tenant.

14. In view of the aforesaid, I do not find any merit in this appeal and hence the same is dismissed with no order as to costs. Three months' time is, however, allowed to appellant to vacate the demised premises.

H.B.T./S‑347/K Appeal dismissed.