Mst. SAIRA BAI vs Syed ANISUR RAHMAN

' NAIMUDDIN, J.--The dispute in this appeal by leave relates to a shop on ground floor of the building on Plot No,AD/69 Haidary Memorial Market, Barkat Haidary, North Nazimabad, Karachi. The appellant who is the landlady. Made an application under section 15 of the Sind Rented Premises Ordinance. 1979 (hereinafter referred to as the Ordinance) for the eviction of the respondent who is the tenant, from the shop in dispute, on the ground that she, in good faith, required the shop for use by her grown up son who has completed his studies and wanted to start his independent business but the respondent refused to comply with her demand.

2. The respondent in his written statement, denied the claim and additionally pleaded that the appellant wanted to increase the monthly rent from Rs,300 to Rs,450, and on his refusal to vacate the shop she filed the application for eviction. It was also pleaded that the appellant did not disclose the source of her capital needed to be invested in the business or the nature of the business allegedly to be started in the shop. On the pleadings of the parties the Controller framed the following issues.

(1) whether the disputed shop is required in good faith for the use and occupation of the son of applicant namely Khoziam Hussain.

(2) what should be the order?"

3. After considering the evidence of the appellant and her son and the respondent and one witness namely, Muhammad Sharif who was examined on his behalf, the Controller came to the conclusion that the appellant did require the shop in good faith for use by her son Khozaim Hussain for running independent business, and consequently, by order, dated 12-11-1983, directed the eviction of the respondent allowing him 60 days time to vacate the shop.

4. Aggrieved by the order the appellant preferred an appeal with High Court of Sind which was allowed by a learned Single Judge by the impugned judgment, dated 1-7-1985. In allowing the appeal the main reasons which weighed with the learned Judge in the High Court were that in the application for eviction a vague ground was given that her son had completed his studies and wanted to start his independent business and that it had not been disclosed as to what kind of business he wanted to do or what kind of business he was already doing, and the appellant was unable to say in her deposition as to the nature of business intended to be carried on or that Khozaim Hussain, her son, had enough money to start the business. On the question of demand of increase in rent the Controller and also learned High Court Judge decided against the respondent.

The learned Judge observed as follows:-- "I am of the view that the increase in the rent from 250 to 300 stretching over a period of about ten years which apparently is not compatible with the market fall in the money value, undergone during this period, in the circumstances of this case, can hardly be considered a ground weighing enough to warrant an inference that in the instant case ejectment proceedings are intended to be used as a lever for increase in the rent."

5. Leave was granted to consider the contention that the non-mentioning of the details with regard to the kind of business which was intended to be carried on in the shop was not a legal ground for interference with a finding of fact.

6. We have heard Mr. Mubarak Hussain Siddiqui, Advocate for the appellant and Mr. Shahinshah Hussain Advocate for the respondent. We have also gone through the order of the Controller, the impugned judgment and the record.

7. The appellant made an application under section 15 of the Ordinance. Under this provision the Controller has to make an order directing the tenant to put the landlord in possession of the premises within such period as may be specified in the order if he is satisfied that the landlord requires the premises in good faith for his occupation and use or for the occupation and use of his spouse or any of his children. Therefore, the only condition to be satisfied by a landlord is that he requires the premises in good faith. Good faith has not been defined in the Ordinance but it has been defined in section 2, subsection (27) of the West Pakistan General Clauses Act, 1956, as follows:-- "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."

8. Therefore, we have to examine whether the appellant had made the application honestly. The appellant in her application stated that she required the shop for use and occupation of her son which use is covered by the provision. Her son Khozaim Hussain, in his deposition, has stated that his mother has four sons, out of them two are studying while the remaining two are married and have got children and that he was one of her married sons, and that he has completed his studies and wants to start his independent business and intends to settle independently from his father.

The appellant has deposed that she has funds and could provide rupees one lac to her son to carry on the business. No evidence was led to controvert these facts, and, therefore, it cannot be said that the requirement of the shop for the use of the son of the appellant is not honest. In section 15 of the Ordinance the word 'reasonably' has not been used with the phrase 'good faith' as used in section 13 of the Punjab Urban Rent Restriction Ordinance, 1959, yet in its meaning, if it is implied, we find that the appellant requires the shop reasonably and in good faith. The son is grown up, educated, married, without work, in other words unemployed. Enough fund is also available with his mother. These are good reasons to prove the bona fide requirement of the shop for use and occupation of the son.

9. It was, however, argued by Mr. Shahinshah Hussain Advocate for the respondent that son of the appellant is a double graduate and has obtained a degree in law, and, therefore, he should practice and not carry on business, but in such a case the choice is of the appellant or her son and not of the respondent. If such a proposition is accepted, it would be against the incident of ownership of property and such a clog cannot be read in law unless it is so provided therein.

10. It was next argued, as it was argued before the Controller and the High Court, by the learned counsel for the respondent that the appellant, in her application, has not stated the nature of the business for which the shop is required and in her deposition, she expressed her unawareness as to the nature of business which her son would carry on However, her son, in his deposition, has stated that he would do paints business in the shop.

Regarding the non-mentioning the nature of the business in application it may be observed that an applicant has to state in his application, the material facts i.e, facts which constitute cause of action. In a case of present nature the applicant has to state those facts which prima facie show that the requirement is c according to law, and is made in good faith. This has been so stated in the application. It is not essential as it is not part of the cause of action to state the nature of business which the applicant intends to carry on. Take a case where the applicant states in the application that she requires the shop for her son for carrying on a particular business but later on pending hearing of the application or after eviction of the tenant, the applicant thinks that the business can no more suitably and profitably be carried on in the shop, the question might arise; could he change the nature of business or not? The choice of doing a particular business also depends on many other factors such as the nature of the locality or the nature of business being carried on in other shops in the neighbourhood. It also depends on the flow of customers and class of people residing in the area. Therefore, if there is any change in circumstances, the nature of business could also be changed. Accordingly, the answer would be that the applicant could change the nature of business with the change of circumstances because in law no restraint or bar is provided. Therefore, the mentioning of the nature of business was not a material fact or so essential that without it the application must fail.

' In any case, there is authority of this Court in the case of Mst. Toheed Khanum v. Muhammad Shamshad (1980 SCM R 593) wherein a similar point was raised and it was observed as follows: "Again the High Court fell into an error when it placed undue reliance on the fact that the nature of the business was not stated in the application... "

' Further, as mentioned hereinbefore, it was unambiguously stated by the applicant that she requires the shop, in good faith, for use and occupation of her son, and her son, in his deposition, has in clear terms, stated that he would carry on the business of paints in the shop. Therefore, this objection has no force and ought not have been given any weight by the High Court.

11. It was further urged that the application was made mala fide because the appellant wanted the respondent to increase the rent but on his refusal to do so, she filed the eviction application. This submission has been dealt with by the Controller as well as by the High Court adequately and not accepted. Nonetheless, demand of higher rent does not, by itself, cast any doubt on personal requirement if the factum of the requirement of the possession, in good faith, is otherwise proved and section 9 of the Ordinance itself provides increase in rent in the following terms: "9. Limit of fair rent. --(1) Where the fair rent of any premises has been fixed no further increase thereof shall be effected unless a period of three years has elapsed from the date of such fixation or commencement of this Ordinance whichever is later.

(2) The increase in rent shall not, in any case exceed ten per cent per annum on the existing rent."

In the case of Badruddin Hasan Farooqui v. Manghi Industrial Home (PLD 1976 Kar. 620) it was observed by a learned Judge of the Sind & Baluchistan High Court at page 622 as follows: "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."

' This is correct view of the law.

12. For all these reasons, we allow this appeal; set aside the judgment of the High Court and restore the order of the Controller. The respondent is doing business in the shop. We, therefore, allow him four months more time to hand over vacant possession of the shop to the appellant.