MUHAMMAD SANAULLAH Versus MEHRAN FEED INDUSTRIES LTD .

This is appeal under section 21 of the Sindh Rented Premises Ordinance, 1979 (hereinafter to be mentioned as `the Ordinance') is directed against the order dated 11‑10‑1986, passed by the IVth Senior Civil Judge and Rent Controller, Karachi‑West in Rent Case No. 4595/81, whereby ejectment application filed by the appcllant against the respondents is dismissed.

2. Appellant Muhammad Sanaullah, who filed ejectment application, stated that he is the owner and landlord of constructed area of 33 sq. yards on Plots Nos. 19,20 and 21 situated in Sub‑Block E, Block‑3, Nazimabad, Karachi and the respondents are his tenants in the said shops on monthly rent of Rs.200. Appellant further stated that he had a large family including five sons, two of whom were married and 4 daughters, who are all unmarried. The premises in dispute were said to be required for the use and occupation of appellant's sons Kifayatullah, a 'tailor master, Shafaatullah and Muhammad Imran, both electric wiremen. Yet another son Hidayatullah, whom appellant wanted to rehabilitate, was said to be requiring a shop to open a provision store. Appellant's daughter Farhana Naz, who was being trained as a homoeopath, was also said to be in need of premises for setting up her dispensary. For said children the shop in dispute was required in good faith and bona fidely. It was also stated that earlier Rent Case No. 3500 of 1977 for the eviction of respondent No. 1 on the ground of personal requirement of appellant himself was dismissed by IInd Court of Rent Controller, Karachi on 3‑1‑1980 and F.RA. No. 52/80 filed by appellant was also dismissed by this Court on 12‑5‑1981.

3. The ejectment proceedings were contested only by respondent No. 2, who admitted appellant to be his landlord and that respondent No. 1 had no concern with the shop in dispute. It was pleaded by the respondent No. 2 that the application was filed with mala fide intention and the premises were not required for the use and occupation of the children of appellant as stated. It was further averred that even the first and second floor over the disputed shop were in occupation of respondent No. 2 as a tenant, but because the appellant insisted for vacant possession of those portions, respondent agreed to vacate same. An agreement dated 16‑7‑1977 was executed between appellant and respondent No. 12. On execution of such agreement, respondent No. 2 vacated first and second floor and delivered possession thereof. After having taken possession of the two portions from the respondent No. 2, appellant in violation of terms of agreement, filed first ejectment case on 13‑10‑1977 seeking respondent's ejectment on the ground of appellant's personal requirement. Having failed to succeed in seeking respondent's eviction and after the dismissal of his appeal by this Court on 12‑5‑1981, appellant filed present rent case on 18‑10‑1981 i.e. after 5 months of the decision by this Court, taking new plea of ejectment on the ground that the premises were required for his sons and daughter.

4. In the Second Rent Application No. 4595/81 the appellant filed his own affidavit‑in‑evidence (Exh. 4) and affidavit‑in‑evidence of Shafaatullah, Muhammad Imran and Mst. Farah N&z. Some documents were also filed alongwith these affidavits suggesting that the said children of the appellant were qualified to run independent business in the premises. Respondent No. 2 Muhammad Ahmed Shaikh filed his affidavit‑in‑evidence (Exh. 10) and also the affidavit‑in‑evidence of one Syed Tasneemul Hasan (Exh. 11) and Chaman Javed (Exh. 12). On perusal of evidence and the pleadings of the parties, the learned Rent Controller framed the following points for determination:‑‑

(1) Whether the shop in question is bona fidely required in good faith by the applicant for the use and occupation of his children as alleged?

(2) What should the order be?

5. On appraisal of evidence the learned Rent Controller decided Issue No. 1 in negative and held that the premises were not required by the appellant for the use and occupation of his children and in the result dismissed the application through the impugned order.

6. 1 have heard the learned counsel for the parties and perused the R & P. It is contended by Mr. Abdul Wajid Wyne, learned Advocate for the appellant that in fact respondent No. 1 was the actual tenant and respondent No. 2 only signed the agreement and being in occupation of the premises was joined as a party. According to the learned counsel it is the respondent No. 1, who is his tenant and not the respondent No. 2, who only shared the premises and business with the respondent No. 1. The learned counsel further argued that the first rent case was filed by the appellant on the ground of his personal requirement, which was dismissed and so also his appeal. He has filed the present case on the ground of requirement of the premises in good faith for his children, details whereof are given in the application as well as in evidence. It has also been contended that the bona fide personal requirement was duly established through evidence and particularly by examining the children for whom the shop is required but the learned Rent Controller misread the evidence and for no cogent reasons dismissed the rent case. The last contention of the learned Advocate is that the evidence of landlord on oath if not inconsistent with the pleadings and not shaken in cross‑examination, the bona fide personal requirement in good faith would amount to have been proved and there was no option with the learned Rent Controller except to direct tenant's ejectment. In support of these contentions, learned Advocate cited the following judgments:‑‑

(i) Hafiz Abdul Malik v. Muhammad Ilyas (PLD 1989 SC 356).

(ii) Khawaja Muhammad Abdullah v. Shat Faiz Muhammad (1980 SCMR 974).

(iii) Ahmed Din and another v. Muhammad Aslam Hadi (1981 SCMR 732).

(iv) Muhammad Mohsin v. Rent Controller and others (PLD 1985 SC 327).

(v) Muhammad Anwar and another v. Muhammad Saeed and another (1991 SCMR 2337).

7. Mr. K.B. Bhutto, learned Advocate for the respondent No. 2 has argued that the first rent case was filed by the appellant on 13‑10‑1977 after entering into agreement with the respondent No. 2 who had vacated the first and second floor of the said premises. In that rent case appellant sought eviction on the ground of his own requirement and having failed before the Rent Controller as well as before this Court, he filed fresh rent case on the ground that the premises were required by him for his children whom he wanted to establish in business. According to the learned counsel, the conduct of the appellant reflects mala fide and he is not entitled to the discretionary relief as he did not approach the Court with clean hands. It is also argued that in the agreement dated 16‑7‑1977 the appellant had agreed in unequivocal terms that if the respondent No. 2 vacated the first and second floor over the disputed premises, the appellant would not seek his eviction and the respondent would be at liberty to carry on his business with free mind and devotion. The amount of fixed deposit was also increased from Rs.500 to Rs.2,000 which was deposited with the appellant. It is also argued that within no time of getting possession of the first and second floor under an agreement, the appellant with dishonest intention filed rent case seeking eviction on the ground of his personal requirement and having failed to seek eviction he came out with a new ground of requirement of the premises for his children/dependents. This shows the height of mala fide of appellant and the learned Rent Controller rightly dismissed his Rent Case. The learned Advocate has referred the following case‑laws:‑‑

(i) Syed Arif Shah v. Abdul Hakim (PLD 1986 Karachi 189);

(ii) Mst. Begum Jan v. Abdul Rasool (1984 CLC 755);

(iii) Akhlaq‑un‑Nabi v. Nawab Ahmed Shamsi and 6 others (1986 CLC 1100);

(iv)' 'Mukhtar Ahmed v. Muhammad Saleem Bakhshi (1991 CLC 1047);

(v) Vida Hussain v. Noor Muhammad Bana (1985 CLC 3014); and

(vi) Faqir Muhammad and others v. Muhammad Bibi and others (PLD 1991 SC 590).

8. The facts of the case as shown above are not disputed by the learned counsel. It has nowhere been stated in the application or in the affidavit‑in evidence why respondent No. 1 is joined as a party to the rent proceedings. or in this Appeal. Not a word has been said by the appellant and in view of the fact that there is an agreement Exh. A‑1 between the parties I hold that respondent No. 1 was improperly shown as a party. The premises are in occupation of the respondent No. 2, who is signatory of the agreement ExhA‑1 and this factual position is not denied even by appellant's learned Advocate. The question that needs to be considered is whether the shop in dispute measuring in all 33 sq. yards is required in good faith for the bona fide need of the children of the appellant. One of the sons of the appellant is a tailor‑master doing tailoring business elsewhere while the two sons are electric wiremen and the daughter is an under‑trainee homoeopath. These four children of the appellant cannot be established in so small a shop as the disputed one. Another important aspect of the case, which cannot go unnoticed, is that the first round of litigation between the parties ended on 12‑5‑1981 when appellant's first rent appeal was dismissed by this Court. Present rent case is filed before the Rent Controller on 18‑10‑1981 and new ground of ejectment of respondent is taken. The fresh ground on which respondents' eviction is sought is that appellant needs the premises for the use and occupation of his children. Such a ground was available to appellant even during eailier proceedings but because he failed to take such ground in the earlier round of litigation he filed the second rent case. The conduct of the appellant, for whom the respondent No. 2 has stated that he is a Court bird, neither reflects bona fide, nor good faith. The requirement of section 15(2)(vii) of the Ordinance enjoins upon the landlord to show that he requires the premises in good faith for his own occupation or for the use and occupation of his spouse or any of his children. The good faith of the landlord has to be proved through evidence which in this case has not been proved.

9. I would now advert to the case‑law referred by the learned Advocate for the appellant. In the case of Harz Abdul Malik (PLD 1989 SC 356) the landlord, who was above 60 years of age, had no other house or property except ‑the disputed premises and was involved in litigation for getting the tenant evicted for over 15 years. It was held that all this litigation indicated that there was genuine personal need on his part to get the tenant evicted so that he could himself reside therein instead of living with one of his son. In the instant case, the landlord has sought eviction of his tenant on the ground that the premises are required for the use of his dependants and the above‑cited judgment is not attracted. In the case of Khawaja Muhammad Abdullah (1980 SCMR 974), the landlord had filed ejectment petition on the ground of requirement of shop for his use and for the use of his 4 sons. Simultaneously the landlord filed another ejectment petition against another tenant of a contiguous shop on the ground of his requirement for use of his jobless son. The second petition was compromised and dismissed. It was held that the mention of need of son in petition already dismissed would not affect requirement of other sons and requirement of use of other sons cannot be held to be not bona fide in the circumstances. In the case of Ahmed Din (1981 SCMR 732) the finding of two Courts below which accepted plea of personal requirement of the landlord who sought eviction of tenant from both portions of shop for purpose of carrying on business of homoeopath doctor, was not interfered with by the Hon'ble Supreme Court. In the case of Muhammad Mohsin and another v. Muhammad Saeed (PLD 1985 SC 327) it was held that the second application for ejectment was not barred by section 14 of the Ordinance as a new cause of action had arisen or circumstances were altered in such a manner as to justify filing of another application for ejectment. In the case of Muhammad Anwar and another (1991 SCMR 2337), the landlord had rented out the shop wherein he was in business and had sought ejectment of the tenant for his personal need. It was held that the fact that the landlord had a rented shop wherein he was carrying on business would not disentitle landlord to seek eviction of tenant from premises owned by him in setting up his business therein.

10. I would also like to refer to the case‑law referred by the respondents' learned Advocate. In the case of Syed Arif Shah (PLD 1986 Karachi 189), which is a judgment of this Court in a revision application, the facts are totally different and do not apply to the facts of the instant appeal. In the case of Mst. Begum Jan (1984 CLC 755) it was observed in respect of a landlord, who does not come to Court with clean hands and suppressed the material facts in rent application filed on the ground of bona fide requirement, the Courts may in such cases appraise evidence of landlady more cautiously. In the case of Akhlaq‑un‑Nabi (1986 CLC 1100) it was held by this Court that burden of establishing bona fide would be on landlord and must be supported by,valid reasons as to how such requirement was genuine. In the case of Mukhtar Ahmed (1991 CLC 1047), it was held by this Court that in order to deprive a tenant of his valuable rights of tenancy in respect of commercial premises, landlord was required to establish his good faith and reasonable need for requiring such premises for his use by some cogent evidence. In the case of Fida Hussain (1985 CLC 3014) a landlord, who sought eviction of his tenant from a show down for his son and concealed fact in eviction application that ,`v '' he was in occupation of similar premises, it was held that the ejectment application by landlord was rightly dismissed by the Rent Controller. In the case of Faqir Muhammad and others (PLD 1991 SC 590) the Hon'ble Supreme Court observed that the law and Courts of law assist only those litigants whose claim and approach to the Courts are based on honesty and good. faith. And when these things are lacking, relief is denied to them.

11. As has been pointed above, the desire of the appellant to seek eviction of the respondent No. 2 from the premises for his own use was not accepted in the earlier round of litigation. And even after dismissal of his appeal by this Court on 12‑5‑1981 the second rent case is filed by him on 18‑10‑1981 and a new ground is taken seeking respondents' eviction on the ground that the shop in dispute was required for his dependents. It is a matter of record that after pursuading the respondent to vacate the two portions over the disputed shop, r., appellant, without wasting any time and ignoring his obligations under the agreement (Annexure A‑1), filed the first rent case. The agreement is signed by the appellant and the respondent No. 2, showing no concern of the respondent No. 1. I am clear in my mind that the appellant did not approach the Court with clean hands and the good faith and bona fides, urged by him were not proved. His second ejectment application, culminating into the impugned order, was rightly dismissed by the learned Rent Controller and no interference is called for in the circumstances. These are the reasons for the short 'order dated 7‑4‑1993.

AA./M‑1961/K Appeal dismissed.