BASHIR AHMAD Versus MUHAMMAD MANSHA
1. This appeal is directed against order dated 3‑5‑1987, whereby the appellant was ordered to be evicted from Shop No. 2/201/4, Tannery Road, Bihar Colony, Karachi.
2. The tenancy was created under agreement executed between the parties on 4‑5‑1980. The rent was agreed at Rs. 300 per month. No date was specified for payment of rent. The respondent sought eviction of the appellant on the ground of default in payment of rent and electric charges, bona fide requirement of the shop in question for his personal use and the use of the premises in contravention of the terms and conditions of the agreement. The appellant filed his written statement, denying the allegations made by the respondent.
3. The parties‑led their evidence. The learned Rent Controller ordered eviction on the ground that the appellant had failed to pay electricity charges in terms of tenancy agreement. So far as other grounds are concerned, they were decided in favour of the appellant.
4. I have heard Mr. I.I. Suleman, Advocate for the appellant and Mr. Asad Ali Bilgrami, Advocate for the respondent.
5. The learned advocate for the appellant has contended that the learned Controller has rightly decided that there was no default in payment of rent. With regard to electricity charges, it was contended that the appellant had been paying the same alongwith the rent. After refusal of the rent by the respondent, the appellant started depositing the rent as well as electricity charges in Misc. Rent Case No. 2200/1984 in the Court IX Rent Controller, Karachi.
6. The learned advocate for the respondent frankly stated that he does not support the finding of the Rent Controller on the issue of non‑payment of electricity charges and rightly so, as although the appellant has specifically stated in his .written statement that he had been depositing the rent and electricity charges in Misc. Rent Case, but the respondent in his affidavit in evidence did not rebut the aforesaid contention raised in the written statement, except that a general statement was made that the appellant had failed to pay monthly rent of May and June, 1984 and so also electricity charges. The respondent did not even specify the quantum of the electricity charges that had remained unpaid.
7. The learned advocate for the respondent urged that the learned Rent Controller has decided the other two issues wrongly and the finding on the said issues should be reversed.
8. On the ground of personal requirement, it was stated by the respondent that he was serving at Saudi Arabia and had come back in 1983 after resigning from his service and desired to establish his business at Karachi. For such purpose he required the shop in possession of the appellant. The appellant in his written statement had specifically denied the aforesaid requirement and pleaded that the respondent had been running a shop adjacent to his shop and has sufficient accommodation at his disposal. All that the respondent has stated in his affidavit‑in‑evidence is that he had given oral notice to the appellant on his arrival in Pakistan from Saudi Arabia in the month of June, 1983 to vacate the premises as the same was required by him for personal and bona fide need. The respondent did not rebut the fact that he was running business in the shop adjacent to the shop in dispute and that he had sufficient accommodation at his disposal for doing his business. He did not even assert that the accommodation in his possession was not sufficient for his requirement. The respondent in support of his case filed affidavit in evidence of one Fateh Mohammad who repeated the version of the personal requirement, exactly in the same words, as was stated by the respondent in his' affidavit. In cross‑examination, the said witness deposed that he did not know as to when the respondent had come back from Saudi Arabia and further deposed that the respondent had not told him that he required the shop in dispute for his personal use.
9. However, the respondent's son Mohammad Saleem deposed that his father required the shop for his personal use and further stated that the business in the name of Saleem & Brothers Medical Store was owned by him. and his father wanted to run his own business in the shop in dispute. Such evidence given by the witness of the respondent is of no consequence. The respondent did not disown the said business. The witness of a party can only corroborate the case pleaded by the party. Since the respondent himself has not pleaded that he was not doing business in the shop adjacent to the shop in dispute, nor had denied the fact that there was sufficient accommodation at his disposal, it is not possible to reach the conclusion that the respondent requires the premises in question in good faith and for his bona fide use.
10. With regard to the last ground, it was contended by the learned counsel for the respondent that the appellant is using the shop in dispute for colour, painting and repairing of motor cycles, trucks and other vehicles in contravention to the terms and conditions of the agreement dated 4‑5‑1980. According to the learned counsel the appellant is liable to be evicted because of the use of property for the purpose other than the one for which it was let out. The shop in question was rented out to the appellant for the purpose of running the cycle business and instead of doing the said business, the appellant had started using the property for the above business of painting and repairing the vehicles. The submission is without any substance. The agreement does not contain any positive covenant prohibiting the appellant from carrying on the business of such nature, as is being conducted by the appellant. The respondent in his cross‑examination stated that the appellant was doing cycle repairing, painting and electric work. The evidence thus suggests that the appellant is using the said shop for cycle business and the allied work of painting, electrician and repairing. Therefore, it cannot be definitely inferred that the appellant is using the shop in question in contravention of the agreement.
11. In view of above, the appeal is allowed and the eviction order dated 3‑5‑1987, passed by the learned Rent Controller is hereby set aside and reversed.
12. AA/B‑216/K. Appeal allowed.