KHAIRUNNISA Versus AHSAN AHMAD PIRZADA

1. This First Rent Appeal is directed against the order dated 2‑5‑1987 passed by the learned IInd Senior Civil Judge and Rent Controller, Karachi, West, by which the ejectment application filed by the appellants was dismissed. The brief facts giving rise to the present appeal are that the appellants filed ejectment application under section 15 of the Sind Rented Premises Ordinance, 1979, before the learned Rent Controller inter alia alleging therein That they were legal heirs of deceased Ghulam Raza who died in April, 1984. That the shop bearing No. C‑1, situated at 12‑D, Rizvia Society B. Road, Karachi belongs to them and the same was being occupied by the opponent respondent at a monthly rent of Rs.650 since the death of their ancestor Ghulam Raza. That the opponent respondent had failed to pay rent from January to July, 1984, amounting to Rs.4,550. That the applicant No.l who is widow of late Ghulam Raza and her three sons required the disputed shop for their personal bona fide use in good faith. That on llth July, 1984 applicant No.l served a notice upon the opponent /respondent informing him about the death of her husband Ghulam Raza and asking him to pay rent to her and also to hand over the vacant possession of the shop as the same was required by her for her sons. But the opponent/ respondent has failed to hand over the vacant possession to them. The opponent /respondent filed his written statement in which he admitted that late Ghulam Raza died in April, 1984, and that the applicant No.l was his widow. However, it was denied that applicants No.2 to 6 were the only legal heirs of the deceased or that the applicant No.l was authorised to receive the rent as no letter of administration or copy of heir ship certificate was filed. The contents of para 2 of the application were admitted but it was further submitted that at the time of induction as tenant the opponent /respondent had paid a sum of Rs.50,000 to the deceased by way of goodwill and the goodwill prevailing in the area of such similar shops presently was Rs.1,50,000. That the landlord used to issue rent receipts after two three months and the last receipt issued by him on 3‑1‑1984, was for the rent received by him for October, November, and December, 1983. The deceased/ landlord had also received rent for the months of January, February, and March 1984 from the opponent/ respondent but since he was lying ill he did not issue rent receipts for the same. On his death in April, 1984, the opponent/ respondent tendered the rent for the months 'of April and May, 1984, to the applicant No.l who declined to receive the same till she obtained letters of administration from a competent Court. The opponent /respondent, therefore, deposited the rents for the months of April and May 1984, in Court. Although, the opponent /respondent had made payment to the deceased landlord towards rent of January, February and March, 1984, for which he could not issue receipt due to serious illness the opponent /respondent as precaution and with permission of the Court deposited the rent for January, February and March, 1984 in Misc. Application No.2172 of 1984, and the future rent is also being deposited regularly. It was denied that the shop in question was required by the appellant in good faith. According to the opponent/ respondent two of the three sons of the applicant have their separate shops where they were carrying on their business independently, while her third son was serving in a Shipping company and, therefore, the shop was not required bona fide. The receipt of notice was admitted and it was further stated that it was properly replied vide reply dated 15‑7‑1984 on the address given in notice, but the same was returned un served with the remark That the application was filed causelessly and it was liable to be dismissed.

2. On the pleadings of the parties, the following issues were framed by the learned Rent Controller:‑

3. "(l) ??????? Whether the opponent has committed default in payment of rent ?

(2) ??????? Whether the shop premises in question is required in good faith by the applicants No.l to 4?

4. In support of their respective contentions, the applicant No.l filed her own affidavit and affidavit of witness Ghulam Mehdi her son as well. On the other hand, the opponent /respondent Ahsan Ahmad filed his own affidavit.

5. The learned Rent Controller after taking into consideration the evidence led by the parties decided the two issues against the applicants/ appellants and dismissed the ejectment application. The present appeal is directed against the above judgment. I have heard Mr. Syed Zaki Muhammad, learned counsel appearing for the appellants, and Mr. Azizul Hasan, learned counsel appearing for the opponent /respondent, and have gone through the R&P of the case.

6. It was contended by Mr. S. Zaki Muhammad that the appellants had proved that the shop in question was required by them for their personal bona fide use and for the personal use of her three sons. Learned Rent Controller had erred in deciding the question of personal bona fide requirement against the appellants. In support of the above contention the learned counsel has relied upon PLD 1985 Kar. 639 PLD 1986 Kar. 199, 1986 CLC 395, 1986 CLC 395, 1986 CLC 1472, and PLD 1985 SC 138. However, he did not press the issue regarding default. On the other hand Mr. Azizul Hasan, learned counsel appearing for the respondent has contended that the appellants had failed to give details/ particulars of their requirements and that they had failed to prove that they required the shop in question for personal bona fide use, and, therefore, the judgment passed by the learned Rent Controller does not call for interference. In support of his contention he has relied upon 1986 CLC 1485, 1986 CLC 2628 and 1986 MLD 714. I have considered the contentions. Para 4 of the ejectment application shows that the applicant/widow of Ghulam Raza and her sons required the disputed shop which is in possession of the opponent for their bona fide use and the same is required in good faith for the applicants' use and occupation. The affidavit filed by Mst. Khairunnisa applicant widow of late Ghulam Raza, in evidence shows that she as well as her sons required the said shop premises for their personal bona fide use. In para 7 of the affidavit it is stated that her above three sons are unable to carry on business because the opponent has not handed over possession of shop and the said shop is required in good faith for her bona fide personal use and for her sons. In para 8 of affidavit it is stated that she wants to open stitching, cutting and tailoring business of children and ladies as she knows the said work. The affidavit filed by Ghulam Mehdi son of late Ghulam Raza shows in para 3 that the shop which is presently in the occupation of the opponent is urgently required for his bona fide personal use as well as for the bona fide personal use of his mother and two other brothers. In para 4 of the affidavit it is stated that they are unable to carry on further business or to expand the business as the opponent is withholding the possession of the said shop. In para 5 of the affidavit it is stated that he is carrying on business in a small cabin situated in the same premises in which they live and this cabin is not sufficient to accommodate all his brothers who intend to carry on the business. In para 6, it has been stated that this cabin or small room is actually not an independent room but is intended for passage for going inside the house and, therefore, it is temporarily being used by him for want of sufficient accommodation. In paras 7, 8 and 9 of the affidavit it has been stated that because of the use of this cabin or small room, the passage for going inside the premises is being blocked and, therefore, they used the adjoining passage which belongs to his relative who has temporarily allowed him the passage to go inside the premises. That they had no other shop except the small cabin and unless they get the possession of the disputed shop, they were unable to carry on business. That they have no intention to let out the said shop again. The applicant

7. Mst. Khairunnisa has admitted in his cross‑examination that her son Hasan Askar is in service in a company for the last 8/10 years. Ghulam Abbas is also in service for the last about one year. Her son Ghulam Mehdi is running a shop of stationery for the last about three years. She has studied up to VIII class. She has not obtained any diploma in cutting and sewing but she knows this job. She does not pay Income‑tax for her work of cutting and sewing. She had started this work after the death of her husband. She has denied a suggestion that opponent had paid R‑s.50,000 to. her husband as Pagri. The applicant Ghulam Mehdi has stated in cross‑examination that they had not served the opponent with any notice regarding the change of ownership of the premises in dispute. The opponent was tenant of late Ghulam Raza, and on his death the premises in dispute have been mutated in the name of his mother. His father has left three sons, namely, himself (Ghulam Mehdi) Hasan Askar, and Ghulam Abbas and two daughters, namely Zainab and Sakina. His brother Ghulam Abbas is in service in the Head Office of Shalimar Hotel. His brother Hasan Askar is in service in a Shipping Company. He is running a private business of stationery. The premises in dispute were let out to the opponent in the year 1978. He has denied a suggestion that his father had received a sum of Rs.50,000 as Pagri from the opponent. He is running stationery business from the lifetime of his father. He had admitted a suggestion that he is running the business in the same building in which the shop in dispute is situated. He has denied a suggestion that his father was not prepared to eject the opponent as he had to return the Pargi, to the opponent. He has admitted a suggestion that the shop in dispute is not required for the personal need of his brother but has voluntarily stated that the shop in dispute is required for him to run his stationery business. He does not pay income‑tax nor he maintains any account in the Bank. He does not maintain any account of his business. He has denied a suggestion that they have filed the present application on false ground, in order to eject the opponent and to re‑let the same on Pagri. He has denied a suggestion that shop in dispute is not required by them for their personal need. On the other hand, the respondent has denied the contents of para 4 of the application in his written statement and has further stated that it is denied that the shop in question is required by the applicant in good faith. Two of the three sons of the applicant have their separate shops where they are doing their business independently, while the third son of the applicant is in service in a Shipping Company, as such, the disputed premises are not required by any of the three sons of the applicant in good faith. In h is affidavit in evidence, the respondent has stated in paras 5 and 6 that the applicant's two sons are in service while the third son is running a shop since the lifetime of their father and, as such, they have not financial difficulty. Witness Ghulam Mehdi is already running business, and as such, there is no question of his requirement of the premises in question. In cross‑examination he has stated that it is correct that he came to know after the death of late Ghulam Raza that he has left one widow, three sons and two daughters. The contents of Exh.0/3, are correct. Premises comprises of bungalow in which the applicant, her three sons and two daughters are residing. There are three shops in the said bungalow out of which one is in his possession and the remaining two are in possession of the applicant. He has further stated that the shop bearing No. A is lying vacant since last two months. He has admitted that two sons of the applicant are in business, one is doing business of Cold Drinks in the same premises, the other was carrying on stationery business. The younger son of the applicant was carrying on business of Cold Drinks, while Ghulam Mehdi was carrying on stationery business. The shop in his possession is biggest one.

8. From the above discussion it is clear that the respondent has not disputed in his written statement as well as affidavit in evidence that applicant Khairunnisa does not require the premises in dispute for her personal bona fide use, although he has denied the requirement for personal use of three sons of the applicant. The applicant Khairunnisa has specifically alleged in the application as well as in her affidavit in evidence that the shop in question was required for her personal bona fide use and her three sons. Of course, few questions were put to Kharunnisa in cross‑examination whether she holds any diploma of cutting and sewing but this aspect was not denied in the written statement as well as in affidavit of the respondent. The applicant, Ghulam Mehdi had also stated specifically in his affidavit that the cabin/small room which is in his possession was not sufficient to accommodate all his brothers who intend to carry on the business. That it had blocked the passage for going inside the premises and, therefore, he was using the alternative passage to go inside the premises. He has further stated that the shop in question is urgently required for his personal bona fide use as well as for the benefit and personal use of his mother and two brothers. That they were unable to carry on further business or, expand the business as the opponent was not vacating the shop. The assertion that the shop in possession of the applicants was small one A and that they were not able to expand their business and that it was required not only for the personal bona fide use of the sons but their mother as well has not been challenged in cross‑examination

9. Even if Ghulam Abbas and Hasan Askar were in service and it was held that the shop in question was not required for their personal bona fide use, yet there was no denial that Mst. Khairunnisa did require the shop in question for her personal bona fide use. The need for expanding the business by applicant Ghulam Mehdi was also not denied. It is also admitted by the respondent in his cross?examination that the shop in his possession was bigger than the two. other shops situated on the ground floor. It has been alleged by the respondent that he had paid Rs.50,000 to the husband of the applicant No.l as Pagri and that the applicants want to re‑let the said shop after getting possession on payment of higher amount of Pagri. There was no evidence available on record to prove that Rs.50,000 were paid by the respondent as Pagri nor there was any evidence to show that the applicants actually wanted to re‑let the premises in question. However, if the premises are re‑let, by the applicants, the respondent has remedy under section 15 of Sind Rented Premises Ordinance, and the ejectment could not be refused on the bare allegation. In the case of Mst. Farukh Nisa v. Safdar Ahmad and 6 others PLD 1985 Kar. 639 it was observed by this Court that:‑

10. "Provisions of section 15‑A have been enacted solely for the benefit of tenants who having regard to lack of adequate accommodation were left at the mercy of the landlord/ landlady."

11. It was further held that:‑

12. "The expression, 'requires in good faith' would mean that the landlady required the premises for her reasonable requirement or needs and that she was not seeking the eviction on pretext of requiring additional accommodation with oblique motive of realising some extraneous purposes. Mere wish, convenience, whim or fancy of landlord, held, would not be enough to show that the landlord required premises in good‑ faith".

13. In Dr. Murtaza Hussain v. Muhammad Mustafa PLD 1986 Kar. 199, it was observed by this Court that:‑

14. "Bona fide personal need of landlord proof of, landlord, held, would have to prove bona fides regarding personal need. On proof of such bona fides, burden would then shift to tenant alleging mala fides of landlord to prove the same."

15. In the case of Bhaledino v. Din Muhammad and 6 others 1986 CLC 395 it was observed by a Division Bench of this Court that:‑

16. "In the absence of any pre‑condition laid down by section 15 of Sind Rented Premises Ordinance non‑disclosure in the application that some other premises is in the occupation of the landlord will not be a bar to the maintainability of the application. "

17. In the case of Arshad Umer v. Begum Nazarul Askari PLD 1985 SC 138 it was observed by their Lordships of the Supreme Court as follows : ‑

18. "We note that subsection (ii) of section 15 of Sind Rented Premises Ordinance, 1979, provides that the Rent Controller can direct the tenant to put the landlord in possession of the premises if he is satisfied inter alia that the landlord requires the premises in good faith for his own occupation or for the occupation of his children."

19. On the other hand the following cases were relied upon by Mr. Azizul Hasan, learned counsel appearing for the respondent. Samiullah v. Mst. Begum Jehan 1986 CLC 2628 wherein it was observed that:‑

20. "The burden was on the landlord to prove bona fides or good faith for personal requirement. The good faith is to be proved by clear and definite evidence which could inspire confidence."

21. It was further observed that:‑

22. "The respondent's statement in her cross‑examination shows that her two sons were already doing business and, therefore, it cannot be said that they were going to start new business after having attained majority and for which reason the premises in question were required by the respondent." With utmost respect the above decision is distinguishable inasmuch as it is the case of Mst. Khairunisa appellant No.l that she has started the work of cutting and sewing after the death of her husband, and it was not suggested to her that she was carrying on. this work even before the death of her husband.

23. (2)Izhar Hussain Naqvi v. Muhammad Sayeed 1986 CLC 1485 wherein it was observed in this Court that:‑

24. "It is an admitted position that the appellant's son is in U.S.A. It has been however stated that his family is in Pakistan. "The appellant has not given the details of the members of family members as his sons wife and children. This is a very vague statement, because if the wife has very young children it may be necessary for her to stay alone with them separately. Moreover, the wife of his son was not examined to establish the fact that she wants to reside separately from the appellant in some independent house. There is no conclusive and cogent evidence establishing the requirement of children of Mr. Haider Naqvi, who is residing outside Pakistan, and, therefore, it was not proved that the premises were required for the wife and children of C.R. Haider Naqvi. The appeal was, therefore, dismissed.

(3) In the case of Hussain Ali v. M/s. Noor Ali and others 1986 MLD 714; it was observed that:‑

25. "The burden to prove bona fide requirement of premises was on the landlord. The appellant has not explained the nature of his business and the manner how the existing shop is insufficient and cannot accommodate his business nor the appellant has stated in what manner he wants to expand his business and whether such expansion will be possible by acquiring 1 sq. ft. The appellant has also not stated whether his son is working as an associate, employee or partner in the business. Under these circumstances it was held that the appellant had failed to proved the personal bona fide requirement and, therefore, the appeal was dismissed."

26. With utmost respect the above decision is distinguishable and is not applicable to the facts of this case inasmuch as in the present case, Mst. Khairunisa appellant No.l wants to start her own business of cutting and sewing clothes, which fact has not been disputed or denied by the respondent. Even there has been no cross‑examination on this point and, therefore, the above decisions are not applicable to the facts of the present case.

27. From the evidence produced by the appellants and the admission made by the respondent in cross‑examination it is clear that out the three shops one big shop is in possession of the respondent while two small shops are in possession of two sons of the appellant No.l. However, as far as personal bona fide need of appellant No.l was concerned, it has not been disputed by the respondent inasmuch as neither it was denied in the written statement specifically nor the lady and her son Ghulam Mehdi were cross‑examined on this point except a question whether she holds any diploma. Every woman is presumed to know cutting and sewing unless proved otherwise. Even the respondent has not stated in his affidavit that the premises in question were not required by the appellant No.l for her personal bona fide use and, therefore, I am of the considered view that the appellants have been able to prove that the shop in question is required for personal bona fide use of appellant No. l and for expanding the business of appellant Ghulam Mehdi. I, therefore, allow this appeal, set aside the order of Rent Controller, and allow ejectment application filed by the appellants with no order as to costs.

28. However, I allow four months' time to the respondent to hand over vacant possession to the appellants, subject to the condition that he continues to deposit the future monthly rent regularly. If C the respondent fails to hand over vacant possession to the appellants after expiry of four months, the Rent Controller shall issue Writ of Ejectment if any execution application is filed before him, without issuing prior notice to the respondent.

29. M.Y.H./K‑123 ???????????????????????????????????????????????????????????????????????? ??????????? Appeal allowed.