MUSTAFA OIL MILLS Versus MUHAMMAD ASIF

1. This is an appeal under section 21 of Sindh Rented Premises Ordinance, 1979 (hereinafter called Rent Ordinance) directed against an order dated 1‑8‑1994 passed by IV‑Senior Civil Judge and Rent Controller, Karachi‑South in Rent Case No.121/93 (Muhammad Asif v. M/s. Mustafa Oil Mills) whereby an application filed under section 15 of the Rent Ordinance by the respondent/landlord was allowed and appellants/tenants were directed to put the respondent in possession of the premises godown within a period of six months, hence this appeal.

2. The brief facts of the case are that respondent/landlord filed ejectment application under section 15 of the Rent Ordinance against the appellant/tenant in respect of property bearing No. 12, Sheet No.K‑12, New Survey No.LY‑52, Chakiwara Road, Karachi on the ground that he needed the said premises for his bona fide personal need in good faith as he would open his business of sale of iron rods and bars and would fabricate the same at the small scale. The appellant/tenant in written statement denied the said requirement of the respondent/landlord to be based on good faith.

3. The learned Rent Controller in view of the pleadings of the parties settled point for determination viz. "whether applicant requires the premises for his personal bona fide use". The respondent/landlord filed his affidavit‑in-evidence as Exh. A/ 1 and produced photo copy of extract from the Property Register of Karachi District in respect of property showing to be in his name as Exh.A/2, photo copy of notice under section 61 of Income‑tax Ordinance as Exh.A/3, photo copy of form of return under Income‑tax Ordinance as Exh.A/4, photo copy of wealth statement as Exh.A/5, photo copy of the statement of total income as Exh.A/6, photo copy of notice under section 61 of Income‑tax Ordinance as Exh.A/7, photo copy of return of income‑tax for the year 1991 as Exh.A/8, photo copy from of return of total income for the year 1989‑90 as Exh.A/9, photo copy of notice of demand as Exh.A/10 and photo copy of assessment form as Exh.A‑/11. Appellants/tenant filed affidavit‑in‑evidence of Moosa attorney of the appellants. Both the parties were cross‑examined at length by the respective counsel for the parties.

4. I have heard Mr. Mushir Alam, learned counsel for the appellants, and Mr. Suleman Kassam, learned counsel for the respondent, and perused the record and proceedings of the case and the case‑law cited by the respective learned counsel for the parties.

5. Learned counsel Mr. Mushir Alam has argued that the respondent/landlord is already in service and the previous landlady had also filed ejectment application against the appellants/tenants but same was rejected therefore the need of the present respondent/landlord in whose favour property has been gifted is tainted. with mala fide and is not based on good faith. In support he has placed reliance upon Razia Sultana v. Water and Power Development Authority 1993 MLD 477, Syed Muzaffar Hussain Jafri v. Khawaja Fazal Ahmad 1993 MLD 1707 and Moizur Rehman v. Mrs. Fakhra Javed PLD 1991 Karachi 452. Mr. Suleman Kassam learned counsel for the respondent/landlord has argued that in para.2 of the ejectment application the respondent/landlord has stated that he needed the godown premises for his personal bona fide need and has reiterated the same in paras.3 to 10 of his affidavit‑in‑evidence and the testimony of the respondent in the cross-examination could not be shaken by the learned counsel for the appellants. Mr. Suleman Kassam has further argued that the respondent/landlord has proved that he did not possess any other commercial premises except the one in dispute in the entire city of Karachi and has given detailed particulars about his need in good faith and further has given undertaking that he would occupy the said godown premises and carry out the stated business in the premises. Mr. Suleman Kassam has further argued that it was not necessary that the respondent/landlord should first resign and then to apply for the possession of godown premises in occupation of the appellants/tenants considering the respondent/landlord could not be made to wait for indefinite period till the final order in respect of ejectment is passed by the final Court. He has further taken me through the cross‑examination of the appellant's witness Moosa wherein he has admitted that the previous Rent Case No.373 of 1986 was filed against one of the partners of M/s. Mustafa Oil Mills and the ejectment was refused on the ground that the case was not filed against M/s. Mustafa Oil Mills and. further that appellants/tenants were not prepared to vacate the premises even if the respondent genuinely needed the same as former would face difficulties because the premises were being used by them for business. The witness also admitted that respondent need the premises for his personal need but whether there was any such law. He in the cross‑examination further stated that he did not know if .the premises was suitable for the need of respondent and admitted that respondent never asked for enhancement of rent. He has also stated that the appellants were not prepared to vacate the case premises even the respondent gave undertaking in writing on oath before this Court that in case the appellants vacated the premises respondent would do his own business. He has placed reliance upon Muhammad Iqbal and another v. Mst. Saeeda Bano 1993 SCMR 1559, Syed Ali v. Abdul Ghaffar 1989 ALD 315(2), Tariq Shafi v: Mst. Shamshad Begum 1990 CLC 698 and Qamruddin v. Hakim Mahmood Khan 1988 SCMR 819 in support of his contention.

6. The only point for the consideration in this appeal is whether the respondent has proved his need in good faith. The respondent/landlord in para.2 of his eviction application has stated about his need in good faith in respect of the godown premises and has reiterated by giving full details in his affidavit‑in- evidence .in paras.2 to .10. The appellants/tenants in their lengthy cross-examination could not shake the testimony of the respondent/landlord in respect of their need of godown premises in good faith. Even no suggestion was made to the respondent as he was in service therefore he would not be able to carry on the said business. Mere fact that earlier ejectment application filed by previous owner was disallowed at the appellate stage .on the technical ground that the application was not filed against the tenants but was filed against one of the partner would not by itself negate the good faith for personal requirement of the respondent/landlord. So far the suggestion that the premises was ' Pugri' premises which was paid at the time of inception of tenancy, which fact though denied by the respondent/landlord, would not dis‑entitle the respondent/landlord, from seeking possession of the godown premises if he proved his case under the law for his entitlement to the possession. In fact, the appellants/tenants Moosa in the cross‑examination has admitted that respondent/landlord needed the premises for his own need but questioned about latter's entitlement under the law and further that former would be put into great difficulties. There is no dispute, that under the law, landlord if is able to prove his need in good faith, he would be entitled to possession of the premises and further difficulties if any of the tenant/appellant would also not debar the landlord/respondent from getting possession of his own premises. In Fazal Azim and another v. Tariq Mahmood and another PLD 1982 SC 218 Supreme Court of Pakistan in the said case observed that the landlord seeking eviction on the ground of personal requirement cannot be expected to sit idle for the period of time during the pendency of eviction proceedings and in case the landlord himself is in a gainful occupation during the said period, it would not negate the assertion of bona fides his part., In Sabir Hussain v. Additional District Judge 1986 MLD 797 Lahore case my earned brother Judge in Chamber observed that mere fact that son of the applicant for whom the shop premises was needed in good faith was an employee of the National Bank would not be sufficient to conclude that the shop in dispute was not required by him considering that during the period of non‑vacation of shop in question the said son Ahsanul Haq would keep him engaged to earn his livelihood. In Muhammad Iqbal and another v. Mst. Saeeda Bano 1993 SCMR 1559 their lordship of Supreme Court at page 1562 observed that if the landlady wanted her son to establish a business instead of remaining employed, then how it could be said that such requirement lacks bona fides as it would be matter of consideration for the party to leave his job in order to have better prospects or to continue to be employed therefore not other person including the tenant could question such a decision of landlord. In Tariq Shafi v. Mrs. Shamshad Begum 1990 CLC 698 case my learned brother Judge in Chamber ‑observed at page 702 that the existence‑of bona fide need would be sufficient to order eviction of a tenant and element of hardship to a tenant could not be imported while deciding the eviction application on the ground of personal bona fide need as law has not laid down any humanist approach considering that the Judge has to deal with hard facts and is supposed to decide the case on legal evidence alone. The facts of the cases cited by the learned counsel for the appellants are quite different and distinguishable to the facts of instant case considering also the principle laid down by the Supreme Court in the cases cited by the learned counsel for the respondent therefore the cases cited by learned counsel for the appellant would be of no help to him.

7. In view of the aforesaid reasonings and the case‑law, the contentions of the learned counsel for the appellants have no merits, consequently appeal is dismissed. The appellants are, however, given sixty days period to vacate the godown premises, subject to the condition that the appellants would deposit the rent for the said period in the office of Rent Controller.

8. H.B.T./M‑39/K Appeal dismissed.