AMEER KHAN Versus MUBARAK ALI KHAN

This application was moved in December, 1986 but by Court's order dated 15‑1‑1987 it was ordered to be heard alongwith the main appeal. Hence it has come today for hearing. This is an application for permission to allow additional evidence on the ground that during the pendency of appeal events have taken place which go to show that the alleged bona fide requirement of the applicant of the disputed shop premises is actually not bona fide. In the affidavit of Syed Azizullah filed in support of this application it has been stated that the shop No.2 was got vacated after the judgment of the trial Court from its occupant‑tenant, namely, Khalid. It was subsequently divided into two parts, one of which was let out to a furniture maker while the other was let out to a milkman named Ali Jan since September, 1986. With regard to another shop No.3 in the disputed building owned by the respondent, it is further stated that this shop has also been got vacated from its original tenant who was doing the business of gram merchant and it has been let out to another person who is doing the business by the name of "Audio Music Shop" in this shop. Further it is mentioned that in June, 1985, the respondent had raised the further construction on the plot in question. The ground floor consists of three shops which have been let out to different persons and none of the shops has been occupied by the respondent for his personal use, although the two shops are still lying vacant.

2. The respondent has filed his counter‑affidavit wherein he has stated that the application has been presented with mala fide intention to prolong the proceedings; that the application is not legally maintainable. With regard to the shop No.2 it is admitted that it has been sold out because the respondent was out of job for quite a long time and was in need of money for himself and his family. With regard to the other averments made in the affidavit of the appellant filed alongwith the application it has been stated that the contents of the application are frivolous and the allegations made in various parts are denied. It is further averred that as a matter of fact the attorney of the appellant is trying to advance and make the gaps good in evidence thereby he has attempted to improve the case and it is not permissible in law. Specific denial of the construction of the additional building including three shops on the ground floor of the disputed plot has not been made.

3. I am of the opinion that on the basis of the affidavit filed alongwith this application the appellant has made out a case for recording further evidence in the matter. However, since I have heard the learned counsel for the parties on the main appeal us well and I have formed an opinion that the appellant has a good case against the impugned judgment, I do not, therefore, consider it advisable to allow the application and allow further evidence to be recorded.

4. Now I take up the main appeal. The eviction of the appellant was sought on three grounds, namely, (i) impairing the value and utility of the premises, (ii) default in payment of three months' rent and (iii) personal requirement of the shop m question for the applicant‑landlord. The learned Rent Controller vide his impugned order dated 6‑5‑1984 has allowed the application only on the ground of personal requirement of the applicant‑landlord. On the other two issues he has held them against him. The short question, therefore, involved in this appeal is as to whether the requirement of the applicant in respect of the disputed shop is bona fide and the learned Rent Controller has allowed the application for valid and good reasons.

5. The parties filed their own affidavit‑in‑evidence m support of their respective cases as set up in the application and the written statement respectively, No doubt it has come on record that the applicant/respondent has three sons all gown up and that he has further deposed that he requires the premises in question for himself and his three sons. It is, however, observed that in the application for ejectment nothing has been mentioned as to what business is sought to be set up m the premises in question and whether the applicant has sufficient funds to carry on the said business. The only statement made in para.4 of the application is that the applicant is jobless and without any work and is having 3 grown up sons aged about 27 years, 22 years and 19 years respectively and all the sons are not having proper space for carrying out any business of their own and the applicant has to support a large family, as such the shop in question is required for his personal and bona fide need. As such the opponent was approached to vacate the same but in spite of promise he failed to do so. In the davit‑in‑evidence the averments made above have been `reproduced and deposed. In cross‑examination again the applicant respondent has admitted that his son used to sit in the shop which was later on let out to the opponent. He has simply stated that it is not correct that I do not require the shops for my use or for the use of my sons.

6. The learned counsel for the appellant has cited several authorities which hold that mere desire of a landlord to have the disputed premises is not enough. He has to plead and establish his bona fide requirement of the premises. This element, as already observed, is not established on record in the instant case. The learned Rent Controller has by a short order held that it is settled principle of law that statement of landlord on oath that he requires rented premises for his own use is not sufficient to prove bona fides, and allowed the application. He has sought to place reliance on a decision of the erstwhile High Court of West Pakistan Karachi Bench reported in P L D 1976 Kar. 832 which, in my opinion, has no relevancy to the facts of the instant case. In this judgment the Court has held that the wife and the son could pursue the cause of action for requirement of the premises on their own behalf, they being members of the deceased family and the only legal heirs. However, on the basis of the evidence that has come on record coupled with the fact that the respondent has admitted that after the filing of this appeal he had got the shop No.2 vacated from its tenant and, later on, disposed it of I am of the opinion that it is a case wherein it cannot be said that the premises were required by the applicant‑respondent for his personal use and occupation.

7. For the foregoing reasons, I allow this appeal. The impugned judgment of the learned trial Curt is set aside. The parties shall, however, bear their own costs.

H.B.T./A‑347/K Appeal allowed.