ATTIYA BADAR Versus MUNSHI KHAN

1. Appellant Atiqa Badar has challenged dismissal of her Rent Application No. 212 of 1983 by I Senior Civil Judge and Rent Controller, Hyderabad, under an order dated 31‑1‑1987. Said rent application was filed by the appellant for eviction of respondent Haji Munshi Khan from the shop in litigation bearing C.S. No. F/61‑1038 Qazi Abdul Qayoom Road, Hyderabad:

2. Admittedly the respondent is in possession of the disputed shop since before 1958 and he is tenant and in that capacity he had been paying rent at the rate of Rs.35 per month‑ to Mst. Hafza Begum through her husband Wajihuddin. It is also an admitted position that Mst. Hafza Begum was transferee of the shop in litigation. She filed Ejectment Application No. 204 of 1966 in the Court of IV Extra‑Joint Civil Judge and Rent Controller, Hyderabad for ejectment of the respondent, on the ground of default in payment of rent since 28‑9‑1960. Said rent application was dismissed by the Rent Controller, Hyderabad on 30‑4‑1973. Said order of dismissal was maintained in Rent Appeal No. 1901 of 1973 which was dismissed on 4‑12‑1973. The order passed in appeal dated 4‑12‑1973 'was challenged in this Court in II Appeal No. 21 of 1974, which was dismissed on 11‑12‑1980 by a learned Single Judge, of this Court. A petition for leave to appeal against judgment dated 11‑12‑1980 was dismissed by the Supreme Court of Pakistan on 12‑5‑1981.

3. Present appellant in her fresh Rent Application No. 212 of 1983 claimed that the shop in litigation was gifted to her by her grand-mother Mst. Hafza Begum and such mutation was effected in her favour on 2‑5‑1974. Appellant claimed to have sent notice dated 1‑1‑1983 to the respondent by registered post to pay her the rent and vacate the premises. Said notice was replied by the respondent on 15‑1‑1983. In her Rent Application No. 212 of 1983, the appellant sought eviction of the respondent on the grounds of default in payment of rent and on the ground of personal requirement.

4. The rent application was contested by the respondent who in his written statement challenged the rent application to be not maintainable. The respondent stated that the appellant had no case for seeking his eviction on the ground of personal requirement as she was ailing and unable to run business and she had not disclosed nature of the intended business. The ground of default was also denied. It was added that the rent application by the appellant was mala fide, was meant to harass the respondent, was for enhancement of rent and was in counterblast of the previous litigations which went up to the Supreme Court of Pakistan. It was further averred that Mst. Hafza Begum had been pursuing her litigation through her advocate but at no stage it was disclosed that the property in litigation was transferred to the appellant.

5. After recording evidence of the parties, learned Rent Controller dismissed the rent application with no order as to costs. Hence this appeal.

6. Mr. Hassan Mehmood Baig, learned counsel for the appellant argued that a notice was sent by the appellant to the respondent on 1‑1‑1983 and the same was replied, but even then no rent was paid by the respondent to the appellant While arguing so, learned counsel for the appellant conceded that the respondent had been depositing the rent in Rent Case No. 204 of 1966. When it was pointed out to the learned counsel for the appellant that non payment of rent by the respondent to the appellant coupled with deposit of rent in Court, would at the most constitute a technical default not inviting penal provision, in view of the observations made in the case of Noor Muhammad and another v. Mehdi (PLD 1991 SC 711), learned counsel for the appellant did not press the ground of default.

7. Learned counsel for the appellant,, however, vehemently pressed the ground of personal requirement. He argued that the appellant was patient of asthma and hence she had shifted from Karachi to Hyderabad under medical advice and that s~ e wanted to start her own business in the shop in litigation. It was next argued that bona fides of the appellant in seeking eviction of the disputed shop on the ground of personal requirement were not challenged. On such ground, the appellant had produced her own affidavit as well as affidavit of her father Iqbal Wajih. In support learned counsel for the appellant cited the cases of:‑‑

(i) Mat. Toheed Khanam v. Muhammad Shamshad (1980 SCMR 593).

(ii) Mst. Zehra Begum v. M/s. Pakistan Burmah Shell, Limited (1992 ' SCMR 943).

(iii) Agaria Amir Ali v. Abdul Majid (1993 SCMR 67).

(iv) Oamarudin v. Hakim Mahmood (PLD 1983 Kar. 570).

(v) Allied Bank of Pakistan v. Abdul Majeed through his L.Rs. and others (1985 CLC 1518).

8. Arguments by Mr. H. M. Baig learned counsel for the appellant/landlady were firstly heard on 17‑2‑1994 when counsel for the other side was not present. At request of learned counsel for the respondent the arguments were heard again on 28‑2‑1994 when learned counsel for the parties made their submissions.

9. Learned counsel for the appellant reiterated his earlier arguments and emphasized on the point that even the respondent in his cross‑examination had admitted that the appellant wanted to start business of readymade garments in the disputed shop. Learned counsel for the appellant cited following cases on 28‑2‑1994 besides cases cited on 17‑2‑1994:

(vi) Mukhtar Hussain v. Mehar Illahi and others (1992 MLD 318).

(vii) Mohiuddin Khan v. Muhammad Sharif (1992 MLD 2428).

10. Mr. Abdul Hameed Khan learned counsel for the respondent argued that the ground of default in payment of rent was dot available to the appellant, because the rent was being deposited in Court of the Rent Controller. In respect of the other ground, it was contended that need of the appellant was not bona fide and that the ejectment proceedings were motivated to harass and pressurize the respondent for increase in rate of rent. It was also argued that in the rent application there was no mention, as to, for what purpose the appellant needed the shop in litigation. It was also argued that mere wish, convenience, whim or fancy of the landlord would not be enough for seeking eviction of tenant under the garb of "personal bona fide requirement". In support learned counsel for the respondent cited the cases of:‑‑

(i) Sultan Press Limited v. Muhammad Hassan (PLD 1985 Karachi 624).

(ii) Noor Ahmed and another v. Khawaja Imran Ahmed (1988 CLC 1041).

(iii) Malik Islam Akber v. Mustafa Hussain (1992 CLC 1753).

(iv) State v. Punnu Khan and others (PLD 1984 SC (AJ&K)1).

(v) Government of Sindh and others v. Muhammad Usman and others (1984 CLC 3406).

11. In respect of the ground of personal requirement, the appellant in her rent application stated as below:

12. "That the applicant requires the shop premises in possession of opponent in good faith for her own use and she does not own or possess any other premises anywhere in Pakistan."

13. In her affidavit the appellant stated as below:‑

14. "That I am patient of asthma and I have been advised by my physicians to reside outside Karachi and accordingly I shifted from Karachi to Hyderabad and living in a portion of the house alongwith my father which is quite near to the shop premises in question. I produce two medical certificates as Annexures B and C.

15. That I am Graduate in Science and instead of remaining a burden upon the family wants to become an earning member of the family and decided to start my own business but I have no premisesf or the same except shop in question specially when due to inflation and separation of family at two places the expenses are enormously increased. I produce B.Sc. pass Part II certificate as Annexure `D'."

16. In her cross‑examination the appellant admitted that the respondent was working as tailor master in the shop in litigation for 35 years. She denied if she had filed the rent application for enhancement of rent. She added that she wanted to start the business of children garments. She admitted that she was suffering from asthma since her childhood while she was residing at Hyderabad since one year back or more. Such cross‑examination of the appellant was recorded on 8‑9‑1985. In his affidavit Exh.31 Iqbal Wajih stated that the appellant was a gaduate and was suffering from asthma and hence she was lodged in a portion of the house at Hyderabad where she wanted to start her own business in the disputed shop. Iqbal Wajih is father of the appellant and son of Wajihuddin and Hafza Begum. Iqbal Wajih stated in cross that the appellant was patient of asthma since her childhood and she took treatment by visiting every corner of the country but she was not examined by the medical experts at Karachi. He also stated that husband of the appellant was working as a Construction Engineer in a Firm which has taken contract at Quetta. He admitted that husband of the appellant intended to settle at Hyderabad. Eviction of the ‑respondent on this ground can be ordered, if statement of the appellant on oath as to requirement of the premises for her personal use, is A consistent with her averments made in her application and is not shaken in cross‑examination or disproved in rebuttal, as per the view taken by this Court in the cases of Abdul Qadeer v. Azimuddin (1987 CLC 234), Hassan Khan v. Mrs. Munawar Begum (PLD 1976 Kar. 832), Muhammad Hashim v. Mst. Alima Khatoon (1987 MLD 437). In the present case it is not so. In her rent application appellant did not state, as to, for what kind of business she required the shop premises in good faith. She did not state as to what business she wanted to establish in the shop in litigation situated in a male dominated area of Hyderabad, where one cannot find even a single shop being run by a lady. Her father Iqbal Wajih was also reticent in his affidavit, as to, what sort of business can be undertaken, by a lady down with asthma, in a busy locality of Hyderabad. It may be necessary to mention here that mere statement of land lord that he requires premises for his use, is not sufficient to establish his 8 requirements, as observed in the case of Syed Muhammad Ali v. Mst. Aisha (1984 CLC 2332). In.the case of National Bank of Pakistan v. Wadhomal (1985 CLC 1053) it was held that in a rent case before a Rent Controller the owner of property is not asking for possession of demised premises under Transfer of Property Act and that under the rent laws something more persuasive than mere desire to occupy his own property must be pleaded and proved in order to dispossess a tenant in possession, which possession is fully protected by the statutory provisions. It may also be mentioned here that a mere ipsidixit of the landlord that he requires the premises in dispute in good faith, is not enough and it must be supported by valid reasons, as to how his requirement is genuine, as held in the case of Sultan Press Limited v. Muhammad Hassan (PLD 1985 Karachi 624).

17. The authorities cited on behalf of the appellant do not help her to any extent. In the case' of Mst. Toheed Khanum (1980 SCMR 593) a landlady filed an ejectment application on the ground that she needed it for her personal use as she wanted to run a business in the shop through her major son considering the meagre income of her husband and the large family he had to support. The landlady did not succeed either in the trial Court or in the lower appellate Court or in the High Court. She took her matter to the Supreme Court of Pakistan, which accepted her ground of acquiring the shop for her jobless son. It was observed that undue reliance on the fact that the nature of the business was not stated in the application, was erroneous and that landlady's witnesses were not held to be false either by the4ower appellate Court or by the High Court, which Courts did not show as to in what way evidence of the landlady was lacking in any essential respect, for establishing the plea and how it was insufficient. In the present case the landlady has not sought eviction of her tenant on the ground of the shop being required for her son. Requirement of a shop for a jobless son is understandable and in such a case nature of the proposed business need not be given Same cannot be true in respect of a lady requiring shop in a busy area for her personal use. In the case of Mst. Zehra Begum (1992 SCMR 943) it was held that bona fide requirement of the premises by the landlord, is a need personal to him and he has only to place certain facts before the Controller to make the objective assessment, and review in appeal, of his need and good faith possible. In the cited case the view taken by the Rent Controller was that the landlady had proved her case for bona fide need, but yet the rent case was dismissed on the ground that the landlady could not invoke the ground of personal need, as long as the lease deed remained effective whereby she could not secure the ejectment except on breach of the covenants contained therein. Said order by the Rent Controller was affirmed by the Supreme Court of Pakistan. In the case of Agaria Amir Ali (1993 SCMR 67) it was held that it is not necessary for the landlord seeking eviction of tenant on personal need, to give fullest possible description of the personal use of the premises in his ejectment application. In cited case,. the landlord mentioned in his rent application that he needs the premises for his personal use, as he has no such place which could be used by him in his work as Building Contractor. In the present case nothing has been mentioned in the rent application except that the appellant requires the shop for her own use. She has not mentioned, in the rent application even the fact that she wanted to run some business. In the case of Qamaruddin (PLD 1983 Karachi 570) the landlord was a retired Government servant and was jobless and he wanted a shop for his use in which he wanted to carry on some business and it was held that it was not necessary for the landlord to state that he has previous experience of business. No such question has arisen in this case. In the case of Allied Bank of Pakistan Ltd. (1985 CLC 1518) a learned Single Judge of this Court took view that the question of personal need being a factor relating to the personal knowledge of the landlord, it is difficult to effectively disprove such an assertion, and that normally word of the landlord should be believed and that unless there are substantial grounds to show that the plea is not genuine, there is no reasons why he should be denied the use of his own property. In the cited case the landlord had all along been asking for possession of the premises to start the laundry business. In the circumstances, the eviction of the tenant was ordered on the ground that the landlord and his son had made out a case of bona fide personal need. Instant case, is distinguishable from the cited case where the landlord had been disclosing his intention to start laundry business.

18. Learned counsel for the appellant cited two more cases and they require to be discussed. In the case of Mukhtar Hussain v. Mehar Elahi and others (1992 MLD 318) the view taken was that contention of the landlady regarding the personal bona fide use, if it is consistent with her pleadings and is supported by her evidence on oath and remains unshaken and not disproved in rebuttal, the same shall be accepted as correct. Similar view has also been expressed in the cases of Abdul Qadeer v. S. Azeemuddin Ahmed (1987 CLC 2347) and Hassan Khan v. Mrs. Munawar Begum (PLD 1976 Karachi 832). In the case of Mohiuddin Khan v. Muhammad Sharif (1992 MLD 2428) a landlord required shop premises for his son who was sitting idle and who wanted to establish business of Auto rickshaw. In his evidence the landlord made assertion on oath about requirement of the demised shop for his son for carrying on business of Auto Rickshaw and Suzuki parts and such assertion had not been shaken in any manner and the order of ejectment was maintained. There can be no cavil with the view expressed in the said cases. However, versions of the landlord made in the rent application could be sufficient by themselves to make out case for ordering eviction of a tenant on p the ground of requirement for bona fide personal use, before a landlord can take advantage of the cases referred to above. As already pointed out, the aversions made by the appellant in her Rent Application even if not shattered in cross‑examination, are not sufficient to make out case of bona fide requirement.

19. Learned counsel for the appellant was of the opinion that the ground of personal requirement, which otherwise has not been established, can be said to have becn proved by an admission of respondent Munshi Khan in cross examination as follows:‑‑

20. "It is correct to suggest that she wants to start business of readymade garments in the disputed shop:"

21. This reply by the respondent, cannot be treated to be his admission that the appellant bona fidely requires the shop in litigation for her personal use. Respondent was simply made to state, as to what the appellant had desired. Moreover, the appellant has to stand on her own legs for establishing her bona fide. Considering the locality where the shop is situated, it is difficult to believe that a lady would run business in an open shop in such a congested locality.

22. As a result of above discussion, I am of the view that the appellant had not made out a case for eviction of the respondent and her appeal stands dismissed with costs.

23. H.B.T./A‑1467/K Appeal dismissed.