ABDUR REHMAN Versus MUHAMMAD OAMAR
This F.R.A. is directed against the judgment of 1st Senior Civil Judge and Rent Controller, East Karachi dated 2‑4‑1990, whereby he dismissed the ejectment application filed by the appellant against the respondent.
2. Appellant is the owner of House No.C‑124/9, Malir Colony, Karachi. There are four shops on the ground floor of this house. Respondent is tenant of the appellant in respect of Shop No.1. The monthly rent is Rs.400. The respondent had undertaken to vacate the shop after eleven months. In the Rent Note executed between the parties on 15‑11‑1987 it was also mentioned that the tenancy had started from 1‑3‑1987. Instead of vacating the shop on expiry of eleven months, as agreed, the respondent started depositing rent with the Controller vide M.R.C. No.211/1988 without any notice or intimation to the appellant. The appellant, therefore, filed the ejectment application on the ground that the shop in question was required by him for his bona fide personal need. Prior to the filing of this application he had served a notice on the respondent on 12‑2‑1989. The appellant had alleged that he wanted to extend his business for which he required the shop in question. According to him he is running a shop of General Stores and Grocery in two shops each 10 ft. x 8 ft. which are being used as godown by him and he requires the third shop which is in possession of the respondent as these two shops are too small for General Store and Grocery business.
3.The ejectment application was resisted by the respondent. He filed a Written Statement. He admitted that he had agreed to vacate the premises after expiry of eleven months, but he did not comply with the agreement. He started depositing the rent with the Controller directly. He has alleged that the appellant was already in possession of two shops and that he does not require the‑shop in possession of the respondent bona fide. The appellant had been pressing the respondent to enhance the rent to Rs.600 per month and on his refusal to concede to the enhancement he has filed this false case. He has further alleged that recently two shops were rented out by the appellant to other tenants.
4. The learned Controller took up the issue of requirement of the shop in question for bona fide personal use and gave finding against the appellant and dismissed the application as shown above.
5. I have heard Mr. Athar Saeed, learned counsel for the appellant. Mr. Raja Riaz, Advocate of the respondent is absent since 23‑10‑1991. Even today he is absent, although the case is being called since morning. By now it is 9‑40 a.m.
6. From the perusal of the judgment of the learned Controller, it appears that she has based her finding against the bona fide need of appellant on the ground that he has not chosen to occupy the shop of his another tenant
Wajeeh, who is prepared to vacate the same and that he has not made an application for site inspection to prove that the present accommodation in his possession is not sufficient for his need. It will be useful to reproduce the reasoning given by the learned Controller in her Judgment, which reads as under: ‑‑
"On the other hand the advocate for opponent has argued that the applicant is occupying three shops as he himself admitted that he is owner of four shops and two shops are in his possession and recently his tenant namely Wajih has already agreed to vacate the shop in his possession, therefore, if the applicant required the premises in question in good faith he should have asked his other tenants and particularly the tenant Wajih as he himself is prepared to vacate the same.
The next arguments of the opponent's counsel are that the applicant has not shown his good faith nor he has made any application for site inspection proving that the present accommodation in his possession is not sufficient for his need:"
7. The reasoning given by the learned Controller is not correct. By now it is a settled law that the landlord has discretion to choose any one of the premises owned by him for his personal bona fide need. He cannot be compelled to accept the premises, which he does not like. The landlord is also not required to make ' any application for inspection of the site and no adverse inference can be drawn against him, if he has not made the same: On the contrary if the tenant challenged the bona fide requirement of the landlord, he could have made such an application. It was enough that the landlord stated his requirement in the affidavit and stood the test of cross‑examination, which was considered to be sufficient. Reference in this connection may be made to (1) 1984 CLC Kar. 2213 (Habib‑ur‑Rahman v. Mst. Nafees‑un‑Nisa Begum) and (2) PLD 1984 Kar. 14 (Rajah Ali v. Darius B. Kandawalla and another). In 1983 CLC Kar.1653, (Ishaque v. Haji Wali Muhammad), which is a decision of this Court, it has been held that landlord has prerogative and discretion to select premises of his choice where he has more than one house in the same urban area. In 1983 CLC 2657 (Muhammad Shafi v. Muhammad Adam Khan) it was held that even when a landlord has other premises for his personal use in a locality, yet he has prerogative to choose a particular premises, if it is more suitable for his purpose.
8. I am, therefore, of the clear view that the finding of the learned Controller cannot be sustained. 1, therefore, reverse the same and hold that the shop in the possession of the respondent is required by the appellant for his bona fide personal use. The appellant has made an application (C.M.A. No.1442/1991) complaining that the respondent has been defaulting in depositing the rent with the Controller in M.R.C. No.211/1988 regularly. He has produced certified copies of extracts from the ledger which show that on a number of occasions the respondent deposited the rent after the due date and has not deposited any rent whatsoever for the months of August, 1990, September, 1990, October, 1990 and November 1990. The respondent has not filed any Counter‑Affidavit, nor has explained this default. Under the circumstances, the respondent is not entitled to any leniency.
I, therefore, accept the appeal and set aside the impugned order and direct the respondent to vacate the premises in question forthwith.
H.B.T./A‑1132/K Appeal accepted.