QAMAR ZAMANI Versus ISHRAT PARVEEN

1. This First Rent Appeal is directed against the order dated 16-5-1985 passed by the learned IXth Sr. Civil Judge, and Rent Controller, Karachi, by which the ejectment application filed by the appellant on the ground of personal bona fide use was dismissed.

2. The brief facts giving rise to the present appeal are that the appellant filed rent case No. 2698 of 1977 for ejectment against the respondent inter alia stating therein that the respondent was her tenant in a shop at a monthly rent of Rs. 200. At the time when the shop was rented out to the respondent the children of the applicant were minors. That her husband died in 1971, and as such her financial sources were curtailed to a great extent. That her children are now grown up and her son Ferozuddin has no shop of his own and, therefore, he had to join service. That she requested the opponent/respondent to vacate the shop and hand over possession to the applicant but she has refused. That she needs the demised premises/shop for the personal bona fide use of her son Ferozuddin. The respondent tiled written statement in which the relationship of landlord and tenant, and the rate of rent was not disputed. However, it was further stated that initially the rent was Rs. 60 p.m. In the year 1966, the husband of the applicant wanted to reconstruct the demised shop for which required Rs. 25,000 and asked the opponent to pay the- same as goodwill. The opponent paid Rs. 20,000 as goodwill and Rs. 5,000 as advance rent as agreed by the parties. The rent was also enhanced to Rs. 150 per month, such an agreement was entered into by the parties on 1-4-1966. The photo copy of the agreement has been produced as Annexure 0/1, and photo copy of advance receipt has been produced as Annexure 0/2. The shop was reconstructed and thereafter the opponent/respondent adjusted the amount of Rs. 5,000 towards the rent and thereafter she used to pay Rs. 150 per month. Somewhere in 1974/75 the applicant requested for increasing rent and the opponent obliged her by increasing the rent to Rs. 200 per month. The photo copy of rent receipt for the month of June 1975 has been produced as Annexure 0/2. In the beginning of August, 1977, Ferozuddin, Zafar and Salahuddin sons of the applicant came to the shop and asked the opponent to increase the rent. The son of the opponent told them that he will talk to his mother but they threatened, to get the shop vacated. Thereafter the present application was filed. It was further stated that sons of the applicant are grown up since last many years and they hold their shops in Liaqutabad and Joria Bazar, Karachi, and have been carrying on their business, and have enough earning. The shop in question is not required bona fide but the applicant wants enhancement of rent and, therefore, this application has been filed, mala fide.

3. In support of their respective claim, the applicant/appellant filed affidavit-in-evidence of her son Ferozuddin, who filed Special Power of Attorney as EX.`A' rent receipts regarding shop which are on rent with the (sic), as Ex. `B' B1' to B6' she has also examined one Shafiuddin, while the respondent has examined her husband Abdul Rahim Khan and one Mohammad Ali, and have also produced the documents mentioned in the earlier part of this judgment.

4. From the pleadings of the parties, the following issues were trained by the learned Rent Controller.

(1) Whether the applicant requires the case premises for the personal bona fide use of her son Ferozuddin ?

(2) What should the order be?

5. The learned Rent Controller, while taking into consideration the evidence, produced by the parties, decided the Issue No.l in negative, and consequently the ejectment application was dismissed. This First Rent Appeal is directed against the said order of dismissal of ejectment application.-

6. I have heard Mr. A. K. Jatoi,, learned counsel appearing for the appellant, and Mr. Farman A. Hashmi, learned counsel appearing for the respondent.

7. It has been contended by Mr. A. K. Jatoi, learned counsel appearing for the appellant that it was proved that the appellant required the shop in question for the bona fide use of her sons and the learned Rent Controller had erred in dismissing the ejectment application. It was further contended that Abdul Rahim Khan examined as witness by the respondent was not. her attorney nor he had any personal knowledge about the facts of the disputed shop and, therefore, the learned Rent Controller had erred in relying upon his evidence.

8. Mr. Farman A. Hashmi; learned counsel appearing for the respondent has contended that Abdul Rahim Khan was husband of the respondent and that he was personally knowing the facts regarding the disputes between the parties. It was further contended that the evidence with regard to bona fide need was contradictory and, therefore, the learned Rent Controller has rightly dismissed the ejectment application.

9. I have considered the contentions of the learned counsel. Ferozuddin son of the appellant has filed affidavit-in-evidence, according to which when the premises were rented out to the respondent, they were minors. That now they are grown up and are major, and four of them are able to run their business independently while three brothers are schooling. His eldest brother Salahuddin is separate and is independently carrying on his own business. That his mother was facing financial difficulties and, therefore, she asked the respondent/tenant to vacate and hand over possession of the said shop to her as the same was required by her for personal use of her son to run their business independently but the respondent refused to vacate the same. That he is dealing in the business of purchase and selling of old brass and copper scrap etc. in a rented small shop measuring 10 x 10 sq. ft. situated in commercial area, Liaquatabad, on monthly rent of Rs. 450 belonging to one Amir Ahmed, while his brother Mohammad Iqbal is running tailoring house in a small shop situated at Ancholi Society on a monthly rent of Rs. 300 belonging to one Muhammad Ishaque. He had produced power of attorney and rent receipts as Ex. `B' to `B6' and Letter Head PAD and cash memo. of the shops respectively as Ex. `C' to `C'.1 However, he was not cross-examined by the respondent on the point that he and his brother Iqbal were running their business in a rented shop.

10. Shafiuddin witness of the appellant has filed affidavit-in-evidence in support of her case, according to which applicant/appellant has four grown up and major sons while remaining, three are schooling. That Ferozuddin, the second son of the applicant is dealing in the business of purchase of old brass and copper scrap in a rented small shop situated in commercial area Liaquatabad, Karachi. That Mohammad Iqbal son of the applicant is doing tailoring m a small rented shop situated in Ancholi Society on monthly rent of Rs. 300. That the applicant required the shop in question in good faith for the personal use of her sons and two of them are running their business in the rented shops which are insufficient for the same purpose.

11. Abdul Rahim husband of respondent has filed affidavit in-evidence and has repeated the contents of written statement. He has further stated that in the beginning in 1977, his son informed the opponent that the applicant was desirous to further increase the monthly rent but before there was any further talk, the present rent case was filed. The applicant has filed this rent case because the Pagri has gone very high and she does not need this shop for her use or for the use of her son Ferozuddin who is running his own business for many years who is not supported by applicant but the case is vice versa. That the entire ground floor was reconstructed by the opponent under his direction and supervision of a cost of Rs. 20,000 to the entire satisfaction of the owner/landlord. After its completion the portion in landlord's possession was handed over to him. That in view of the fact that he had spent Rs. 20,000 over reconstruction he was not liable to be ejected as agreed to by the husband of the applicant. In cross-examination he has deposed that he has not produced any power of attorney on behalf of the opponent. Rs. 25,000 were not given to Allauddin (husband of applicant) in cash. Voluntarily stated that he has paid Rs. 5,000 as advance, the remaining balance consideration was spent on the two shops. All these things are in writing and he has produced the same with written statement as Anx.0/1. He has denied a suggestion that he had not mentioned payment of Rs. 25,000 in Ex. 0/1 as goodwill, paid to Allauddin. He had no written proof for the construction work raised by him. Rs.5,000 is shown as advance, have been adjusted towards monthly rent. The applicant has two shops and one of them is adjacent to the case premises where Zafar son of the applicant is working and the second is on rent with him. His wife carries on the business of iron. In the year 1975 and 1977 Feroze the son of the applicant approached him to increase the rent. He did not know, whether Feroze Mehmood and Iqbal sons of the applicant are doing their business in the rented shop. Mohammad Ali Ibrahim examined by respondent ha: filed his affidavit in which he has stated that he knew the parties and was carrying on iron bars business in their vicinity about 20 years back. That Allauddin husband of the landlady and opponent's husband had a talk about Pakka RCC construction of the shop. An agreement was written and the husband of the opponent demolished the shop and raised Pakka RCC construction at his own cost. The possession of the shop remained with the opponent and during the construction work the opponent was carrying on business on foot path just in front of the shop. After completion of construction, shop was surrendered to Allauddin. On many occasions during the talks Allauddin had admitted that by way of Pagri he got the shop constructed by opponent at her cost. In cross examination he has deposed that he resides in Chakiwara. The case premises is situated at 8/10 miles away from his residence. Abdul Rehman husband of the opponent is known to him since 20/22 years. He does not know the opponent. He is now in service. He left the iron business since last 20/22 years. He has admitted that at the time of inception of tenancy he used to deal in iron business. He did not know the masson who carried on construction work. He did not know from where building material was purchased. He has admitted that Abdul Rahim is Manager in Habib Bank Plaza. He is Senior Vice-President. He (witness) is not account-holder in this bank. He has denied that he has filed false affidavit due to his connection with Abdul Rahim Khan.

12. I have considered the contentions of the learned counsel. From the evidence of Ferozuddin son of the applicant, witness Shafiuddin and the rent receipts produced by Ferozuddin it is proved that Ferozuddin and his brother Iqbal are car g on business in rented shops. Evidence of Ferozuddin and witness Shafiu~3im has not been challenged in cross-examination. Even Abdul Rahim husband of the respondent has deposed that he does not know if the sons of the applicant were carrying on business in rented shops. It is also not denied by the respondent that four sons of the appellant are major and are capable of carrying on business. There is nothing in the agreement produced by the respondent as Annex 0/1 to show that the,-tenancy was in perpetuity nor the appellant was debarred from filing ejectment application under the law. As far as contradictions pointed out by the learned counsel appearing for the respondent were concerned, I am of the considered view that they were not so material inasmuch as in the application it was stated by the applicant/appellant that her son Ferozuddin was major and had joined service because he had no shop to carry on business. However, in evidence Feroze has stated that he and his three brothers are grown up and they are able to carry on business individually. That he and his brother Iqbal are carrying on business m rented shops. It may be pointed out that the ejectment application was filed in the year 1977 while the affidavit in-evidence was filed by Ferozuddin on 23-1-1982, i.e. nearly about five years thereafter. It is possible that during the above period he might have left the service and had started business. His other three brothers had also started business during the above period and, therefore, there was no contradiction. However, every one has right to use his property, and in the present case the respondent has been taking benefit of the rented shop for more than twenty years. It has been proved from the evidence that two of the sons of the appellant are carrying on business in rented shop and, therefore, the demised shop was required by the appellant for bona fide use of her sons. I, therefore, allow this Appeal, set aside the order of the learned Rent Controller and the ejectment application is allowed.

13. However, I allow three months' time to the respondent to hand over vacant possession to the appellant subject to the condition that he continues to deposite monthly rent regularly on or before every 10th of calendar month. In case the respondent fails to hand over vacant possession, as directed above, the learned Rent Controller shall issue writ of ejectment without issuing any prior notice to the respondent, if any execution application is filed.

14. I had decided the above appeal on 29-1-1989 and these are the reasons ,for the same.

15. M.Y.H./Q-27/K

16. Appeal allowed.