ANWAR JAVAID Versus UMENNISA

For the proper appreciation of the points involved in this appeal it is necessary to refer to the relevant facts in some detail.

2. The respondents are the owners of a building constructed on Plot No.208, A.M. Corrie Road, Saddar, Karachi. The appellant is a tenant of commercial premises bearing No.14, situated on the ground floor of this building, which is also used as `pump room' for the supply of water to occupants of the building. Merajuddin, the respondent No.5 who is a graduate intends to start his business and, therefore, he required the said premises for his own use. It is also alleged that the appellant made certain additions and alterations in the said premises thereby causing damage to it. The default in payment of rent at the rate of Rs.85 P.M. was also alleged. On 16‑12‑1986 the respondents filed an application under section 15 of the Sindh Rented Premises Ordinance, 1979, in the Court of Vlth Senior Civil Judge and Rent Controller (South) Karachi, seeking the ejectment of the appellant from the disputed premises on the aforesaid grounds.

3. The appellant resisted his eviction on various grounds. He has controverted the allegations based on facts. According to him the dispute between the parties arose when he tried to replace the roof of the premises on the strength of the permission granted to him by the previous owners which ultimately resulted into filing of the suit by him against the respondents, which is pending decision. The quantum of rent and default in payment of rent were also disputed. The need of respondent No.5 to use the disputed. premises was contested on the following grounds raised in the written statement:‑‑

"It is for the first time the applicant came out with a plea to start his own business, i.e. for his personal use. Throughout the applicants never raised such a plea which is mala tide on the face of it, specially in view of the fact that the applicants are butchers and are running their business at various places. The applicants approached the Court with mala ride and unclean hands."

4 The parties went to trial on the following issues

(i) Whether the opponent has committed default in payment of rent from ? May, 1983?

(ii) Whether the opponent has converted the premises from godown to shop?

(iii) Whether the premises are required by the applicant No.5 for his personal bona fide use?

(iv) What should the order be?

5. The respondent No.5, examined himself (P.W.1), while the appellant examined himself (D.W: 1). He also filed the affidavits‑in‑evidence of Jaffar Ali and Haroon Rashid, but they did not appear before the Rent Controller for cross‑examination and were consequently dropped.

6. On the assessment of evidence, both oral as well as documentary, the learned Rent Controller decided issue No.2 in favour of the appellant, while the rest of the issues were decided against him and consequently the appellant was directed to vacate the demised premises within a period of 90 days. This order dated 8‑2‑1988 is the subject‑matter of this appeal filed under section 21 of the Sindh Rented Premises Ordinance, 1979.

7. I have heard Mr. Khalid Latif, learned counsel for the appellant and Mr. A.R. Mirza, learned counsel for the respondents. The latter has not pressed the issue of default decided in favour of the respondents. .

8. With the assistance of learned counsel for the parties I have gone through the record and after hearing them I see no reason to take a different view from the one taken by learned Rent Controller.

9. Merajuddin, the respondent No.5 who is also attorney of remaining respondents has testified about his needs for the disputed premises in the following words:‑‑

"That I am graduate and require the premises in question in good faith for my own personal use, where I want to do my business of sale and purchase of electrical goods, more particularly radio and T.V. to earn the livelihood for myself and my children ??????????

10. While elaborating his requirement the respondent No.5, stated on oath as under:‑‑

"It is submitted that the applicant'No.5 (respondent No.5) who has no other business of his own wants to start his business at the premises in question as due to non‑availability of this accommodation, I am unemployed and is sole dependent upon my father which I feel very much a matter of shame, and as such I want to stand on my own footing by doing the business at the premises in question and further beside doing this business, the applicants can also maintain the water? pump properly."

11. The evidence of respondent No.5 also discloses that the appellant has got another shop in his occupation which is situated in Dadi Mansion opposite to the disputed premises where he actually works for gain, while the disputed premises is used by him for storing the goods. The appellant has categorically disputed this fact, but the same is proved from his own admissions made in cross‑examination in the following words:‑‑

"I do not remember if my address in this case was shown as Dadi Manzil. I was served at Dadi Manzil, because it was by chance that I was sitting there. I am supervisor of that place and some times work there also. I pay income tax. I have given my address of Dadi Manzil, Islam Electronic in Income Tax. There is water pump installed in the premises in question ? During the course of cross‑examination the appellant has also produced his visiting card (Annexure D) of Salam Electronic, a shop situated in Dadi Mansion. The fact that the water pump is installed in the disputed premises is not denied by the appellant, who has also admitted that a key of this premises is given to the Chowkidar of the building to have access to water pump for pumping the water for the residents of the building. This fact lends support to the statement of Merajuddin (P.W.1); when he states that the disputed premises is used by the appellant to store his goods only.

12. Mr. Khalid Lalif, learned counsel for the appellant has referred to several points but eventually confined his arguments to the following' contentions, namely:‑‑

(i) That the ejectment application out of which this appeal has arisen is the result of earlier litigation initiated by the appellant who had filed a shit against the respondents which is pending decision, and the disputed premises is not required by respondent No.5 in ,good faith;

(ii) That the disputed premises is not suitable for the needs of respondent No.5, who has selected a shop of `8' x 8 out of 14 shops situated in the building only to give vent to his personal vendetta; and

(iii) That during the pendency of this litigation the shop No.10 under the tenancy of Haroon‑ur‑Rasheed has fallen vacant which is sufficient to cater the needs of respondent No.5, if he really wants. to start his business.

Admittedly the appellant had filed a suit against the respondents for declaration and injunction, being Suit No. 1558 of 1984, which is pending before the trial Court after its remand by the High Court. There is also no dispute, that the application for ejectment was filed by the respondents on 16‑12‑1986 long after the filing of suit by the appellant. ? previous litigation between the parties by itself does not cast any doubt about the bona fide need of the landlord, if the factum of bona fide requirement is otherwise proved from the ? record. This factor alone would, therefore, not militate against the bona fide requirement of respondent No.5. There is nothing on record to show that the respondents or any of them own or possess any other commercial building besides the one in which the disputed premises is situated. On ? the other hand it is established beyond any shadow of doubt that the appellant has got in possession another shop situated opposite to this building. The bona fide requirement of a landlord has to be seen in the context of the case in which the controversy has arisen and the mere fact that the father of landlord is carrying on flourishing business would not show lack of bona fides of the landlord who has got every right to start his independent business. It was so held in the case of Ehsan Karim and another v. Nisar Ahmad, reported in 1979 CLC 80.

14. As a matter of fact the expression `good faith' is a matter which relates to state of mind of a landlord which may be inferred from circumstances attending to each case and the Courts should ordinarily accept the requirement ? of landlord without imputing bad faith unless strong circumstances to the contrary are brought on record. The Courts should not start with any presumption of `bad faith' against such landlord.

15. Let me now examine the contention of learned counsel for the appellant based upon the suitability of the accommodation, who has endeavoured to show that premises in dispute being too small it would not cater the needs of respondent No.5. This argument, however, is effectively answered by the Supreme Court in the case of Sabu Mal v. Kika Ram alias Heman Das, report in 1973 SCMR 185, wherein it was observed that the choice of the premises is a matter within the prerogative and discretion of the ? landlord. This view was followed by me in the case of Karimuddin Shad v. Mst. Fatima Mian Ahmad, reported in 1989 CLC 545, and Syed Nisar Haider v. Mst D Razia Sultana, reported in 1989 MLD 4417. It is an established position of law that a tenant cannot determine the suitability or sufficiency of accommodation for the landlord. It may be added that there is water‑pump installed in the demised premises and its maintenance is one of the considerations for respondent No.5, to select this premises for his own use. This fact finds place in paragraph 4 of the affidavit‑in‑evidence of Merajuddin (P.W.1), the respondent No‑5 in this case. ????????

16. The other grievance, learned counsel for the appellant ventilates is about the availability of Shop No.10, which has been vacated by its tenant, namely, Haroon‑ur‑Rasheed during the pendency of the present ? proceedings. The appellant has moved CMA No.1020 of 1990, for receiving this additional evidence at this stage. This question is, however, controversial and the respondents have denied to have received possession of the said shop from Haroon‑ur‑Rasheed. They intend to file application for the eviction of the tenant of Shop No.10, a copy of which is available on record. ]t may be noted that one of the grounds taken for ejectment of the tenant of Shop No.10, is the subletting. Therefore, this evidence cannot be looked into at this stage.

17. Lastly it was half‑heartedly suggested that the appellant being a licensee. of the disputed premises the assumption of jurisdiction by the Rent Controller was illegal. This ground was developed after the appellant pleaded that one key of the disputed premises is also retained by the Chowkidar of the building who has got free access to the said premises for the purpose of generating water‑pump. The appellant has not taken this plea at' any stage of the case. The tenancy was admitted by him in unambiguous terms. It is, therefore, too late now to raise a question of this nature. Even otherwise the appellant has himself stated in his cross‑examination that the key of the premises was temporarily given to the Chowkidar by him. In this view of the matter the facts of the case of Abdullah Bhai and another v. Ahmed Din, reported in PLD 1964 SC 106, which is cited on behalf of the appellant are not relevant.

18. Mr. Khalid Latif, learned counsel for the appellant has said every?thing that he can say on behalf of his client, but I am satisfied that it is not a case in which I should interfere with the order of the Rent Controller. The appeal has got no merits and is accordingly dismissed with no order as to costs. The appellant is, however, allowed two months' time to vacate the demised premises.

19. In view of the finding recorded by me in para. 16 ante, CMA No.1020 of 1990 is also dismissed.

H.B.T/A‑1428/K ???????????????????????????????????????????????????????????????????? ??????????? Appeal dismissed,