MOHIUDDIN KHAN Versus MUHAMMAD SHARIF

In this appeal order dated 19‑7‑1987 passed by the learned Ist Senior Civil Judge and Rent Controller, Hyderabad, has been assailed by the appellant whereby he was ordered to be evicted from Shop NO.A/98‑2604 opposite Elite Cinema, Hyderabad, in Rent Application No.10 of 1986, filed by the respondent, on the ground that the aforesaid shop was required by him for the bona fide use and occupation of his son Muhammad Azam who was sitting idle, for establishing him in the business of Auto Rickshaw and Suzuki parts and accessories.

2. The said son Muhammad Azam is one of the four sons of the respondent. Two elder sons are in service. It was stated that the respondent is owner of two shops, out of which one was in his possession, while the other shop is in possession of the appellant. His son Muhammad Azam did not own any property, anywhere in Pakistan. The respondent was approached to vacate the shop, but he failed to do so.

3. The appellant in his written statement, had denied the allegation with regard to personal bona fide requirement, made by the respondent and it was stated that the Rent case was filed, for the purpose of enhancing the rent. It was further stated that the respondent with mala fide intentions had stopped collecting rent from 1973 and the appellant was constrained to deposit rant in Court. The appellant further stated that the respondent owns many other shops.

4. During pendency of the case an order was passed for inspection of property bearing Plot No.107 W/G, Liaquat Colony, Hyderabad, which is owned by the respondent. The Commissioner appointed for the purpose of inspection reported that the aforesaid property consisted of residential premises, which were occupied by the families and there was no shop in the said property.

5. The learned Rent Controller on consideration of affidavit in evidence of the respondent and his son Muhammad Azam and that of appellant and his witness Nazeer Ahmed reached the conclusion that the demised shop was required bona fide by the appellant for his son Muhammad Azam for doing business stated hereinabove and that the respondent did not own any shop, other than the one in occupation of the appellant and another in which the respondent was doing his business.

6. I have heard Mr. Riaz Ahmed learned Advocate for the appellant and Mr. Anwar Jamali, learned counsel for the respondent.

7. The learned Advocate for the appellant contended that (a) the aforesaid son of the respondent is the member of joint family of the respondent, is dependent upon his father and he further stated that the said Muhammad Azam is doing business alongwith his father. (b) The aforesaid son of the respondent firstly has no experience of dealing in the business of spare parts and secondly, he has no capital of his own to invest in the business. (c) If the business is to be commenced with the funds to be provided by the respondent to his son, then the business intended to be done would be virtually that of the respondent and therefore the shop cannot be said to be required by him for his son. (d) The appellant owned many other shops which have been converted into residential units during the pendency of the case, but the applicant has concealed this fact. On the above basis it was urged that the case has been filed with mala fide intentions. The learned counsel relied on the following case‑law.

(1) 1991 CLC 1047 Mukhtar Ahmed v. Muhammad Salim Bakhshi;

(2) 1990 CLC 1064 Fatima Bai v. Muhammad Zaki;

(3) 1989 CLC 951 Zeenat Ara v. Amna Begum;

(4) 1991 CLC 1512 Zaheeruddin v. Riaz Ahmed;

(5) 1986 CLC 1751 Mst. Safia Hassan v. Ishrat Hussain;

(6) 1990 CLC 904 Shahnaz Begum v. Akhlas Ahmed.

It was contended that the Commissioner's report cannot be relied upon as the Commissioner was not cross‑examined. He relied on 1987 SCMR 1778 Sardar Muhammad Asim v. Sheikh Allah Dad.

8. The learned Advocate for the respondent contended that the respondent has established bona fide requirement of the shop for his son and the submissions made by the learned counsel for the appellant and the evidence on record do not warrant interference with the impugned order. He relied on the following cases.

(1) PLD 1976 Kar. 832 (Hassan Khan v. Munawar Begum);

(2) PLD 1982 Kar. 770 (Ever ready Pictures Ltd. v. Chaman Begum);

(3) 1980 SCMR 593 (Mst. Tauheed Begum v. Muhammad Shamshad);

(4) 1989 SCMR 1366 (Mst. Saira Bai v. Anisur Rehman).

9. With regard to the first submission the learned counsel for the appellant pointed out that the youngest son of the respondent is working with him in the shop, it is therefore to be presumed that Muhammad Azam is also doing business with his father and is not sitting idle as alleged. The respondent in his evidence has stated that his youngest son Ehsan after passing matriculation examination is assisting him in his business. He has denied that Muhammad Azam is also working with him. It has come on record that the doing any business: It has also come on record that the respondent has not employed any servant in his business. It was suggested in the cross‑examination of the said Muhammad Azam that the purchase of the merchandise for the business is done by him and he also maintains the accounts of his father's business. Although such suggestions have been denied by the respondent and his son, but it cannot be ruled out altogether that the said Muhammad Azam may also be assisting his father in his business.

But merely because of the above, coupled with the fact that the respondent has joint family or that he is dependent on his father, it cannot be inferred that the respondent does not require the demised shop for his son or that he does not intend to establish his son in the proposed business. The respondent is dealing in retail business in his shop. It is not the case of the appellant that the respondent is doing business at large scale. It is evident from the fact that he has not employed any servant in his shop. This leads to the conclusion that the business of the respondent cannot profitably absorb his son Muhammad Azam. Muhammad Azam at the time of his cross‑examination in the year 1986, was about twenty‑four years old. With the education he has acquired, he hardly has any prospects in store, except that he starts his own business, to stand on his legs. More so, as his father is a businessman. It, therefore, would be natural desire of the respondent that his son should also embark upon business venture. Muhammad Azam had also entered into witness box and expressed his resolution to start the business of automobile parts, for which purpose the demised shop was being used by the appellant at one time.

10. In so far as the second submission is concerned, it may suffice to point out that the appellant has neither taken any such pleas in his written statement, nor cross‑examined the respondent and .his son on the points of lack of experience in the particular business or the funds. He, therefore, cannot be permitted to raise such pleas at this late stage. It may, however, be observed that the business intended to be done, requires only the knowledge about the parts used in auto rickshaws and Suzuki and the places or the wholesale markets or the business places of the Importers or * the local manufacturers thereof. Such knowledge is not difficult to acquire. If there be any straits or problems, in any particular area of such business, at any time, there is no dearth of persons to be employed for salvation and deliverance.

The learned counsel for the appellant has relied on the observations made in the cases of Mukhtar Ahmed and Zaheeruddin (supra) to the effect that a landlord, who seeks eviction of his tenant from commercial premises,) must give full particulars of his proposed business, availability of the capital) needed and his experience or knowledge of intended business. With all respects to the learned Judge, I cannot pursuade myself to agree with the aforesaid broad and unqualified proposition. The need of experience and capital cannot be made sine qua non in every case of personal requirement of commercial premises. The aforesaid two factors are to be seen, evaluated and appraised in juxtaposition and proximity of the nature of commercial activity and trade proposed to be carried on, for the reason that the business activities have very wide range; varying between barest simple and elementary form which can be done even by a deaf and dumb, on the one and the most complex and labyrinthine forms which can be ventured only with expertise at the finger tips or prescribed professional qualifications, on the other end. Imagine the case of a person who wants to open a shop for sale of confectionary, ground nuts, pea‑nuts etc. or sweets stuff or fruits or any like merchandise on the one extreme and of a person who wants his office premises for. doing stock exchange business without any experience in that sphere or of a person who seeks eviction for opening auto mobile workshop with no experience in the said field, or a person who projects need of shop for opening his clinic, but is not a qualified medical practitioner on the other extreme. Similarly finances readily required for each business or vocation will vary from case to case and no specific rule of law can be laid down. Each case is to be considered on its own merits.

However, so far as the case in hand is concerned, the contention of the learned counsel for the appellant that the respondent has no means to start the proposed business has been answered by himself in his third submission. Reference may, however, be made to the case of Ever ready Pictures Ltd. (Supra) in which Saeeduzzaman Siddiqui, J. (as he then was, now the Chief Justice of this Court) has aptly observed that want of funds alone is not sufficient to hold that the application on the ground of personal requirement lacked bona fide.

11. The third submission is also devoid of any force. In the case of Saeeda Khatoon v. MA. Agha, 1990 MLD 1715, Saleem Akhtar, J. (as he then was now Judge of the Supreme Court) has observed that every person being entitled to do his own business, profession or work, if his bona fide requirement in respect of premises was established, then irrespective of the fact that he was being supported by his brothers or parents, he would not be robbed of his right to do his independent business and such requirement will be held to be bona fide. No exception can be taken even if the required financial assistance is being made available by the respondent to his son. There is nothing on the record to infer that such business would be that of the respondent and not his son. One cannot lose sight of the universal truth that the good parents assiduously toil for the betterment of their children, with deep‑rooted desire to see them on their own, successful and independent.

12. The fourth and the last submission also does not find any support from the facts on record. In the written statement the appellant made a vague averment that the respondent owns many other. shops, which was duly rebutted by the latter in his affidavit in evidence. In the cross‑examination it was suggested to him that he has got seven shops in Pathan Colony, which was replied in negative. In the affidavit in evidence the appellant alleged that the respondent had several shops on Plot No.107, Ward B', Liaquat Colony Hyderabad, but failed to produce any evidence. The inspection of the said property, made on the request of the appellant established that there are no shops on the said plot. It is pertinent to note that the respondent is residing on the said plot and the appellant lives only one hundred yards away from the house of the respondent. Had there been any shops on the said plot, they would have been mentioned with clarity in the written statement or at least a suggestion would have been put to the respondent regarding the shops in Liaquat Colony, instead of Pathan Colony.

So far as the Commissioner's report is concerned the contention of the learned counsel that it should be kept out of consideration because the Commissioner was not cross‑examined, is without any substance. The record shows that the appellant had not made any application for summoning the said commissioner for cross‑examination although objections were filed against the said report stating that the Advocate for the appellant could not accompany the Commissioner as he was busy with his personal work. It was further stated that at the time the Commissioner visited the said property there were no shops as they were converted into residential accommodation. These objections, therefore did not disclose that at the time, the Commissioner inspected the premises in question there were any shops. Thus the objections filed by the appellant did not challenge the correctness of the Commissioner's report. This being so, neither any exception can be taken to the said report, nor there was any need to cross‑examine the Commissioner. In case there were shops which were converted into residential units, with mala fide intentions, to seek eviction of the appellant from the demised shop, it was for the appellant to have given such evidence. But no such evidence, not even an iota thereof has been brought on record.

Even otherwise, it was for the appellant to establish by evidence, in case the respondent owned other shops to mitigate the bona fides of the requirement. In addition it was to be established by the appellant if any shop was in occupation and possession of the respondent. No such averments have been made either in the written statement or in the affidavit in evidence. Under such circumstances, there is no escape from the conclusion that the respondent does not own and possess any other shops.

13. The case‑law relied upon by the learned counsel for the appellant do not advance his case in any manner. The two cases have been already referred to above. In the case of Fatima Bibi, the learned Judge of thus Court refused to grant relief to the landlord as it was found by him that the landlady who was seventy years old and Pardah Nashin, preoccupied with household, was seeking eviction of the tenant from the commercial premises for doing business herself, and not for the husband or children. It also had come on record that the husband of the landlady had goldsmith's shop in Sarafa Bazar.

The case of Zeenal Begum (supra) was filed on the allegation that the shop was required by the landlady for herself, her husband and son for business purpose. It was further stated that her son was not doing any business. In evidence if was found that the husband and the son of the landlady were running Medical Store in the adjacent shop. It was therefore held that the bona fide requirement was not proved.

In the case of Safia Begum eviction was sought from the residential premises on the ground that it was required by the landlady for paucity of the accommodation in her occupation. The landlady did not disclose the size of accommodation in her possession to establish insufficiency thereof for her family. Consequently the relief was refused.

In Shahnaz Begum v. Abbas Ahmed, the landlady filed the case for eviction of tenant from the shop for herself and her husband, suppressing the facts that her husband was carrying on business in the same locality and also had partnership business at another place in the city. The bona fides was thus found lacking.

None of the above cases have any relevancy with the facts of the present case.

14. The learned Advocate for the respondent has rightly relied upon the principle laid down in the case of Hassan Khan (supra) and I quote:

"This is said to be a safeguard for the tenant against being ejected on a false plea of bona fide requirement by the landlord. The effect is that the assertion or claim on oath by the landlord that he required the premises for his personal use, should be accepted by the Rent Controller as bona fide, if such claim or assertion, although by itself may be insufficient, yet is consistent with his averments in the application and is not shaken in cross‑examination or disproved in rebuttal. The evidence in this case fully justified the claim by the landlord that he required the premises bona fide for his own use as he had no other accommodation of his own."

The above rule was approved by the Supreme Court in the case of Tauheed Khanum (ibid) with the following observations:

"In this connection we would refer to the opinion of I. Mahmood, J. in Hassan Khan v. Munawar Begum. (PLD 1976 Kar. 832), which we have recently approved in another case which correctly lays down the mode of assessing the bona fide requirement of the landlord. The considerations which have emerged from the evidence fall squarely within the purview of the opinion so expressed by I. Mahmood, J."

15. The respondent in his eviction application specifically stated that the demised shop was required for the bona fide personal use for his son C Muhammad Azam for carrying on business of Auto Rickshaw and Suzuki parts and accessories and consistently made assertion on oath in his evidence, which has not been shaken in any manner. The learned Rent Controller on the basis of the evidence on record has rightly granted the eviction application and there is no reason to interfere with the same. This appeal is therefore dismissed.

By consent, the appellant is allowed two months time to vacate the premises subject to payment of rent. The possession shall be handed over to the respondent only after he has deposited a sum of Rs.5,000 in Court, which amount was paid by the appellant as fixed deposit to the previous landlord and the respondent has admitted his liability to pay the same, in his evidence.

H.B.T./M‑1699/K Appeal dismissed.