MIAN BROTHERS Versus SULEMAN

For the purposes of this appeal filed under section 21 of the Sind Rented Premises Ordinance, 1979, the following statement of facts would suffice:‑

2. The appellants are the partnership firm having four partners, viz. Ahmad Moosa Mian, Yousuf Moosa Mian, Muhammad Moosa Mian and Mehmood Moosa Mian, all residents of South Africa. The respondent is the tenant of appellants ‑in respect of Flat No.11, situated on Robson Road, Karachi, at a monthly rent of Rs.

48. The partners of the appellants and their family members who are permanently residents of South Africa occasionally come to‑Karachi in connection with their properties. Since they have got no residential accommodation at Karachi, they have to stay in expensive hotels. They, therefore, want a premises of their own to make their stay at Karachi comfortable. On 6‑4 1983, the appellants filed an application for ejectment on the above ground against the respondent who has shifted to Lahore permanently with his family members.

3. The respondent has disputed the bona fide requirement of the appellants in respect of flat in his occupation. According to him he had acquired this flat on payment of Rs.3,000 as goodwill in the year 1952. The respondent has disclosed his defence in para. No.6 of the written statement which is as follows:‑

"6. That the applicants are accustomed to file vexatious applications. They filed an application in the year 1963 which they compromised after raising the rent. They have again filed an ejectment application on the flimsy grounds of default in payment of rent and subletting which case is pending adjudication in the Court of the learned XIVth Senior Civil Judge/Rent Controller, Karachi. Now the high amount of goodwill of Rs.50/60,000 and high rent that could be fetched for the suit premises has tempted the applicants to file this application on vexatious ground of personal requirement; hence it warrants to be dismissed with costs."

4. The appellants have examined Burhanuddin (P.W.1), who is their attorney and Yousuf (P.W.2), their employee. The respondent has examined himself (D.W.1) and Muhammad Hussain, his brother‑in‑law (D.W.2).

5. On the assessment of the evidence available on record, the learned XI1th Senior Civil Judge and Rent Controller, Karachi, decided the issue of personal requirement against the appellants, thereby dismissing the application for ejectment filed against the respondent. This order dated 22‑11‑1984 is the subject‑matter of this appeal.

6. Under clause (vii) of subsection (2) of section 15 of the Sind Rented Premises Ordinance, 1979, a landlord is entiteld to eject his tenant and get possession of a premises, if he requires the same in good faith for his own occupation or use or for the occupation or use of his spouse or any of his children.

7. Admittedly all the partners of the appellants arc settled permanently in South Africa. They have got their properties and business in Pakistan. According to the appellants, they have got no residential premises for their stay at Karachi. Burhanuddin (P.W.1), who is Rent Collector/Manager/Attorney of the appellants has testified to this effect. Para. 3 of his affidavit‑in‑evidence is relevant and is reproduced in extenso to understand the correct position:‑‑

"3. That the applicants are permanent residents of South Africa and any of the partners or family members of the applicants usually comes to Karachi to meet their relatives and to look after their properties in Karachi. As they have no residential accommodation of their own available as vacant for their own use, therefore, they have to reside in Hotel, and to pay their dues which are exorbitant now‑a‑days. Recently the family members of Mian Brothers i.e. Applicants had come and they have to stay in Hotel Faran. Even earlier in the year 1980 the son and daughter and wife of one of the partners of the applicants had come to Karachi and they had to stay at Hotel Mehran. In this connection I am filing copies of the Hotel Bills which are marked as Annexures A/1 to A/6. Even now in 1983 Muhammad Yousuf Mian one of the partners of the applicants had come to Karachi and had to stay in the cement sheeted two rooms on the top floor of Alliance Building in which one of the employees is residing. As such the applicants arc in serious need of a house of their own to live in where any of the family members of the applicants, may have a place to live in Karachi whenever he comes. I have now received a message that Muhammad Yousuf Mian, one of, the family members of the applicants is coming, to Karachi and to stay here for six months to lookafter the affairs of the applicants."

8. This version gets full support from Yousuf (P.W.2), who is an employee of the appellants. According to his version one of the partners of the appellants, namely Muhammad Yousuf, had visited Karachi with his wife, and since they had no accommodation of their own to reside, they had to stay in cement‑sheeted rooms vacated by him. The respondent has also supported this version of the appellants in cross‑examination in the following words:‑‑

"Ahmed Mian stayed in New Alliance Building where applicant's office is situated. New Alliance Building is a commercial‑cum‑residential building. The residence/premises is on the top floor. The top floor premises are meant for the residence of the partners of the applicants' Company. I had seen the top floor. It is correct that the top floor premises has cement‑sheeted roof. It is correct that the premises consists of two rooms:'

9. The respondent has challenged the bona fides of the appellants on two fold grounds, firstly that they having obtained a sum of Rs. 3,000 as `Pugree' (goodwill) from him in the year, 1952, had bartered away their personal need, if any, and secondly the eviction is sought with a view to earn more `Pugree'. As to first of his grounds, i have carefully gone through the evidence of both Burhanuddin (P.W.1) and Yousuf (P.W.2), and have no hesitation to observe that the version of respondent to the effect that he had obtained possession of flat on payment of `Pugree' appears to be correct. This question was, however, examined to Sheikh Muhammad Yousuf v. District Judge, Rawalpindi and two others, reported in 1987 S C M R 307 and was answered to the following words:‑

"According to lease agreement the shop had been let out to the tenant petitioner for a fixed period of ten years with a right of re‑entry reserved by the respondent‑landlord, but it is not mentioned to the lease‑deed that the respondent‑landlord had received Rs. 11,000 as Pugree from the petitioner‑tenant, although it is so stated by him in his statement before the Rent Controller (page 134 of the paper‑book). However. that being mutual arrangement between the parties would not debar the resp ondent landlord from instituting eviction proceedings o n the tir ound of bonafide personal need. "

10. The record also shows that the partners of appellants have been visiting Pakistan in order to manage their properties. The receipts of Hotel Faran and Hotel Mehran are on record (Exhs. A/1 to A/6). The respondent himself admits that one of the partners of the appellants had visited Karachi in the year 1983 and stayed in two roomed apartment situated on the top floor of the building with cement‑sheeted roofs. Keeping all these factors into consideration, coupled with the fact that the respondent has shifted to Lahore and is using this flat on casual visits, I am of the view that the appellants have successfully proved their bona fide requirement. In ordinary circumstances where the owners require the premises for their own occupation one should not start with any presumption against them and discard their claim simply on the ground that they want to earn Pugree.

11. The requirement of the landlord for stay in his own house even temporarily was considered valid in the case of Mst. Ahmed‑un‑Nisa v. Mst. Parveen Siraj, reported in 1985 S C M R 2012. The following observations may be usefully borrowed:‑

"We wholeheartedly agree with these views, for, otherwise the provisions of the Ordinance would be rendered nugatory in cases where a landlord residing outside Pakistan bona fide requires his own house in Pakistan for his own occupation or use, or for the occupation or use of his spouse or any of his children when they come to visit Pakistan or return for permanent abode."

12. For these reasons the appeal must succeed and is allowed with no order as to costs, with the result that the impugned order is set aside. The respondent is directed to vacate the demised premises within a period of two months.

H.B.T./M‑652/K Appeal allowed.