GHULAM DASTAGIR Versus JUMMA
1. This First Rent Appeal is directed against the order, dated 25‑3‑1987 passed by the IInd Rent Controller, Karachi South, whereby dismissing the eviction application riled by the appellant.
2. The facts leading to the tiling of the above appeal are that the appellant is owner/landlord of Shop No.6 (measuring 18' x 16') situated on Plot No.E‑III.2‑S.4, Siddique Wahab Road, Karachi, and the respondent is month to month tenant in one portion comprising 9' x 8' of the said shop of the monthly rental of Rs.330. The appellant filed eviction application under section 15(2)(vii) of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance). The case of the appellant as set out in the eviction application was that previously both the portions of the said shop were rented out to the respondent as at that time the appellant was in service and his sons were minors. It is the case of the appellant that in 1976 when he retired from service, he requested the respondent to vacate the said shop for personal use. It is the further case of the appellant that the respondent vacated only one portion (9' x 8') of the said shop and further promised to vacate the remaining (9' x 8') portion as and when it would be required by the appellant for his personal need and/or for the use of his sons. It is the further case of the appellant that in spite of the fact that both Ire portions of the shop were needed by him after retirement for his own business but due to good relations with the respondent, he never forced or pressurized the respondent to vacate the portion of the said shop in his possession purely on humanitarian grounds. The appellant was running his business of sanitary shop in only one portion since 1976 in pitiable conditions due to shortage of space. ‑It is averred that he desired to extend his business to increase his income to support his large family as he is only person earning hand in his family. Moreover, the elder son of the appellant is also‑grown up and appellant desires to accommodate his sons in this business in second portion, therefore, the appellant requires the premises in question in good faith for his own use and also for the use of his sons who is jobless and could not start his business due to non‑availability of proper space.
3. The respondent resisted the eviction application. The respondent pleaded that the appellant's sons are still not major. He pleaded that eldest son even is hardly 16 years of age and is going to school. The respondent pleaded that the rent of the shop was Rs.60 in 1972 which was increased to Rs.330 for half portion in 1976. He denied that the appellant needed both the portions in good faith. The respondent pleaded that the respondent is not liable to vacate the premises as the appellant does not require the premises in good faith. The case of the respondent was that `in contrast to the condition of the applicant, the opponent who has settled business at present will be economically ruined and without any means of substance for himself and his large family of 8 members including four grown up sons who are all dependents on this shop".
4. The appellant filed his own affidavit‑in‑evidence in support of the eviction application. The respondent filed his own affidavit besides affidavits- in‑evidence of Abdul Ghani and Zafar. They were cross‑examined by the learned counsel for the respective parties.
5. The Controller, on appreciation of the evidence on the record, came to the conclusion that the appellant had also started the same kind of business in the shop and due to jealousy of business the appellant wanted to evict the respondent on the ground of personal use and use of his son. He found that `he had no intention to extend his business because the opponent has flourished the business therefore, the disputed premises for the use of his son'. He held that the appellant had not proved that he wanted the disputed shop for bona fide purpose and he had not examined his son for whom he required the disputed shop. He held that the bona fide requirement was not proved. In that view of the matter the eviction application was dismissed.
6. The appellant has filed this appeal challenging the order passed by the Controller.
7. Mr. S.A. Jalib Chaudhry, learned counsel for the appellant contended that the appellant has established bona fide requirement for the portion of the shop in question.
8. On the other hand Mr. Syed Inayat Ali, learned counsel for the respondent submitted that the appellant has not proved bona fide requirement of the shop at all. The order is well‑reasoned.
9. I have heard the learned counsel for the parties. I have perused the impugned order and I have gone through the R & P of the case.
10. The grounds on which the eviction was sought were stated at rather too great at length. But the main features are that the shop was rented out to the respondent on 1‑11‑1968 at the monthly rent of Rs.60. The respondent deposited Rs.1,700 as surety or security deposit. The rent was enhanced to Rs.100 per month and the security deposit was also enhanced to Rs.2,200 with effect from 1‑2‑1972 vide tenancy agreement, dated 9‑2‑1972. The rent was again enhanced from Rs.1tH) to Rs.110 per month with effect from 1‑1‑1973 vide tenancy agreement dated 13‑8‑1973 (Exh.0/3). The rent was further enhanced from Rs.110 to Rs.130 per month. The security deposit was also enhanced to Rs.10,200 vide tenancy agreement dated 20‑7‑1974 (Exh.0/4). Again the rent was enhanced from Rs.130. p.m. to Rs.175 vide tenancy agreement, dated 7‑6‑1975 (Exh.0/5). Again the rent was enhanced to Rs.200 from Rs.175 vide tenancy agreement dated 14‑5‑1976 (Exh.0/6). The shop was divided into two portions in the year 1976. One portion was retained by the appellant for his business and the other portion was rented out to the respondent at the monthly rent of Rs.330.
11. The appellant filed eviction application for eviction of the respondent. The appellant asserted that he required the portion in possession of the respondent for extending his business to increase his income to support his large family and his eldest son is also growing up and the appellant desired to accommodate his sons in business in second portion of the above shop in good faith for his own use and also for the use of his son who is jobless and could not start his business due to non‑availability of proper space:
12. In the written statement the respondent pleaded that the appellant is not the full owner of the shop as the land belongs to Akal Bhonga Trust. The other plea is that the sons are still not major. The appellant wanted to increase the rent. The purpose of eviction is to have an increased rent. The allegation of personal bona tide requirement is denied by the respondent.
13. The appellant repeated the same fact in his affidavit‑in‑evidence. Firstly he wanted to extend his business to increase his income to support his large family as he is only person earning hard in his family. Secondly he desired to accommodate his elder son who was about 19 years of age.
14. In response to a question the appellant stated that he never treated the respondent as his permanent tenant. In response to another question he stated that his son is not going to school. He denied the suggestion that he does not require the shop in question in good faith.
15. The respondent repeated the same facts in his affidavit‑in‑evidence. He stated that the eldest son even is hardly 16 years of age and is going to school. He stated that he became tenant on permanent basis and was not to be disturbed. He denied the suggestion that he had promised to vacate the shop as and when required by the appellant. He admitted in his cross‑examination that the eldest son of appellant left school and is doing the same work as his father is doing. He admitted that he has obtained adjacent shop on rent from Fazaldin which is adjacent to the shop in question. He admitted that his three sons are doing business of sanitary.
16. Abdul Ghani stated in his affidavit that appellant, assured that his family would in future earn livelihood from portion of shop in his possession while the respondent family would earn their livelihood from the portion in respect of which the. respondent was made permanent tenant. This witness admitted that the tenancy agreements were executed in his absence. It is pertinent to note that respondent admitted in his cross‑examination that Abdul Ghani is his sister's son and his son‑in‑law.
17. The Ordinance is a piece of social legislation aiming at easing the problem of accommodation protecting the tenants from eviction inspired by profit hunting motives and providing certain safeguards for the tenants and saving them from great expense, inconvenience and trouble. But the Ordinance does not completely overlook the interest of the landlord and has under certain conditions granted a clear right to the landlord to seek eviction on proof of grounds mentioned under the provisions of sections 14 and 15 of the Ordinance. It has tried to strike a just balance between the genuine need of the landlord on the one hand and great inconvenience and trouble of the tenant on the other. In the words of Lord Greene, M.R. the Rent Acts are Acts for protection of tenants and not Acts for penalising the landlords. The approach to a case, therefore, should be that the Act `should not operate in such a way as .to penalise landlords instead of being what they truly are, merely Acts for the ‑protection of tenants'. See 1942 (2) AER 653 Cumming v. Danson. One of the enabling grounds of re‑entry under the Sindh Rented Premises Ordinance, 1979, is the personal requirement of landlord, as engrafted under section 15(2)(vii) of the Ordinance, which reads as follows:‑‑
18. "(vii)the landlord requires the premises in good faith for his own occupation or use or for the occupation or use of his spouse or any of his children."
19. Good faith has been defined under the West Pakistan General Clauses Act, 1956. It reads as follows:‑‑
20. "A thing shall be deemed to be done in 'good faith' where it is in fact done honestly, whether it is done negligently or not."
21. The term `bona fide' has been explained in the Law Lexican of British India by Mr. P. Ramanalha Aiyan as follows:‑‑
22. "In good faith, without fraud or deception; honestly as distinguished from bad faith; openly; sincerely. That we say is done bona fide, which is done really, with a good faith, without any fraud or deceipt (Tomlin's Law Dictionary)."
23. The word `requirement' could not be equated with a mere desire or claim. But it must be more than a mere desire or a claim or a demand but `which is surely less than a compelling or absolute necessity'. The need should be genuine, honest and reasonable in the circumstances of the case.
24. Applying the test aforesaid, I find that the Controller has completely misdirected himself in law in finding absence of bona ride requirement. The Controller did not find that the appellant really did not intend to expand the existing business of sanitary work and the eviction was sought due to jealousy of business. The Controller also did not find that the appellant was in possession of the part of shop which could justify the need canvassed before him, the only matter which weighed with the Controller is that the appellant is running his business since 1976 and upto the date of filing of the eviction application, he had no intention to extend his business, and `when the respondent has flourished the business, therefore, he has come with this plan that he wants to extend his business and also he required the disputed premises for the. use of his son'. In short, the approach of the Controller is, one must be unemployed, before he can require a premises for expanding a business and/or for requiring the disputed shop for establishing his son in business. This approach is impermissible in law. While adjudicating a case of bona fide requirement can it be said the need to expand the business or to establish his son in business is irrational, capricious and whimsical because, he is jealous p because the respondent has flourished in his business. In my opinion, once the need is established by the landlord, the Controller has no jurisdiction to probe further into the matter and try to weigh and balance it according to its social, philosophy. The `need' is not justiciable thereafter. The only jurisdiction exercisable by the Controller in that situation is to find out whether the need could be fulfilled from the eviction of the tenant.
25. I am, therefore, of the opinion that the legal conclusion and inference drawn by the Controller sacrosanct fact is completely vitiated by law; The only conclusion that flows from the facts discussed above, is a need of the appellant to expand his business and also establish his son in business in the shop in dispute.
26. In the instant case, the appellant sought eviction of the respondent from the shop in dispute for expanding his ,business and also for establishing his son in business. There is no bar in law for seeking the premises for joint use. (See 1981 S C M R 181 and P L D 1984 SC 200).
27. Mr. Syed Inayat Ali contended that the eviction application was filed to pressurize the respondent to charge high rent. This contention is devoid of force. In Peerzada Rafiq Ahmad v. Chaudhry Abdul Rehman 1980 S 'C M R 772 it was held that a demand of higher rent by itself does not cast any doubts about the personal bona fide requirement if the factum of bona fide requirement is independently proved.
28. In Civil Appeal No.119‑K of 1986 Sarabai v. S. Anisur Rehman 1989 SCMR 1366, the appellant sought eviction of the respondent from shop premises. The eviction application was allowed. The respondent filed appeal which was allowed by me. The appellant went in appeal before the Honourable Supreme Court. The appeal was allowed on 24‑1‑1959. It was held as follows:‑‑
29. "In the case of Badruddin Hman Farooqui v. Manghi Industrial Home PLD 1976 Kar. 620 it was observed by a learned Judge of the Sindh 'and Balochistan High Court at page 622 as follows:‑‑
30. 'But in any case a demand of higher rent by itself does not cast any doubts about the personal bona fide requirements if the factum of bona fide requirements is independently proved.'
31. This is correct view of the law."
32. Mr. Syed Inayat Ali submitted that the son of appellant was not examined before the Controller. .His submission is that non‑examination of son is fatal. The submission is devoid of force (See P L D 1984 Kar. 124).
33. In Dilshad Muhammad v. Mst. Zubaida Begum 1981 S C M R 895 it was held that non‑appearance of son of landlady in witness‑box is not fatal to claim of landlady as to requirement of strop for use of her son.
34. In Nazeeruddin v. Abdul Rashid 1984 S C M R 841 it was held that there is no requirement of law that a person for whose benefit‑the premises are required to be vacated must be produced in support of ejectment application. The dictum laid down in the above case is applicable to the facts of the instant case. In this view of the matter, the finding of the Controller on this point is not correct.
35. For all these reasons, I allow the appeal, set aside the order of the Controller. ]'he respondent is doing business in the shop. 1, therefore, allow him two months' time to hand over vacant possession of the shop to the appellant.
36. H.B.T./G‑271 /K Appeal allowed.