Khawaja IMRAN AHMED vs NOOR AHMED and another

' NAIMUDDIN, J.---This appeal by leave is from the judgment of the High Court of Sindh, dated 16-2- 1988, whereby the High Court set aside the order of the Controller by which the Controller .Had directed the eviction of the respondents in the following circumstances.

2. Imran Ahmed, the appellant before us (hereinafter called the landlord), filed an application under section 15 of the Sindh Rented Premises Ordinance, 1979 against Noor Ahmed and Riaz Ahmed (hereinafter called 'the tenants'), for their eviction from a shop premises situated in Saddar Cooperative Market, Super Market Building, Karachi on the ground that he required the shop for his personal bona fide use for carrying on business and pleaded that he had no other shop. Indeed, the landlord had purchased the shop from the previous owner and had served a notice under section 18 of the Sindh Rented Premises Ordinance, 1979 before filing the application. The tenants denied the bona fide requirement and termed the requirement as illegal and mala fide. The Controller after recording evidence by the order, dated 14-2-1987 ordered eviction of the tenants holding that the landlord required the premises in good-faith for his own bona fide use. However, on appeal the High Court set aside the order of the Controller by the judgment impugned in this appeal holding that the landlord failed to prove that his requirement of the shop was bona fide. In doing so the reason which weighed with the High Court was that the landlord did not disclose or made out a case with regard to the business sought to be carried on in the shop premises, nor he specifically mentioned about the availability of requisite funds to set up any new business in the shop. In support of the reason the learned Judge in the High Court relied on the cases of Muhammad Azizullah v. Abdul Ghaffar 1984 CLC 2837, Sultan Press Limited, Karachi v. Muhammad Hassan PLD 1985 Kar. 624, Akhlaq-un-Nabi v. Nawab Ahmad Shamsi 1986 CLC 1100 and Ghulam Nabi v. Muhammad Sachal 1986 CLC 2858.

3. Leave was granted to consider the submission that although the nature of the business was not mentioned in the application but it was specifically stated in para. 6 of the affidvait and that the approach of the High Court regarding financial position of the landlord was not correct. In support of the submission reliance was placed on Raja Qurban Khan v. Begum M.M. Sharif and another 1980 SCM R 590, (ii) Zahoor Din v. Mirza Ayub Baig (1981 SCM R 1081) and (iii) Mst. Saira Bai v. Syed Anisur Rehman 1989 SCMR.

1366.

4. We have heard Mr. Muhammad Akram Zuberi, learned counsel for the landlord and Mr. Makhdoom Ali Khan, learned counsel for the tenants.

5. On appraisal of the evidence led by the parties we fmd that the submission of the learned counsel for the landlord, that in paragrpah 6 of the affidavit in support of the landlord's case, he did state that he required the shop premises in good faith for his personal bona fide use for carrying on the business of handicrafts in the same shop as he had no other shop.

6. Even otherwise C.P.C. As such is not made applicable to the proceedings under the Sindh Rented Premises Ordinance, 1979. Only powers of Civil Court under the provisions contained in Code of Civil Procedure, 1908 in respect of: (i) summoning and enforcing the attendance of any person and examining him on oath, (ii) compelling production or discovery of documents, (iii) inspecting the site, and (iv) issuing commission for examination of witnesses or documents have been given under section 20 of the Ordinance. Therefore, if a landlord states in his application that he requires the premises in good faith for his own occupation or use or for the occupation or use of his spouse, any of his children would be sufficient. If a question arises whether a landlord does not require the premises in good faith then it can be shown by cross-examining him on his affidavit or anybody else whose affidavit is filed that he does not require the premises in good faith. In this context some times, disclosure of the nature of the business which a landlord wants to do in the shop premises might be relevant, but a statement to that effect in the application in the absence of any provision is the Sindh Rented Premises Ordinance, 1979 requiring the. Landlord to state the nature of business, would neither be fatal nor essential. Indeed, a landlord may think of doing a particular business and states so in his application but nothing prevents him under the law from doing any other business if the situation or the environment of the shop is changed or he fmds that that particular business cannot be carried on profitably in the shop. Any such restriction, even if provided by law, would be hit by Article 18 of our Constitution which provides freedom of trade or business or profession subject to the provision contained in the proviso contained therein.

7. We are fortified in our view by a number of decisions of this Court, on some of which reliance has been placed in the leave granting order. In the case of Mst. Toheed Khanum v. Muhammad Shamshad 1980 SCM R 593, it was said by Muhammad Haleem, J. (as he then was) 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...."

' And in the case of Mst. Saira Bai v. Syed Anis Rahman 1989 SCM R 1366 at page 1369 it was observed regarding the non-mentioning of the nature of the business in the application as under:- "Regarding the non-mentioning of 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 ease of present nature the applicant has to state those facts which prima fade show that the requirement is 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 cannot 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 the 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 circumstance because in law no restraint or bar is provided.

Therefore, the mentioning of the nature of business was not a material factor or so essential that without it the application must fail.

8. As regards the question of finances, it is stated in the cross-examination that the appellant has purchased the disputed shop from one Saifur Rahman for a total consideration of Rs,90,000 and that, this amount was sent by his elder brother who was then residing in Holland. Now, for carrying on handicraft business the availability of further funds was not a must. His other relatives were also carrying on similar business and on the strength of being the owner of the shop, he could get the goods on credit from manufacturers or his relations. Therefore, lack of finances in these" circumstance would not adversely reflect on the bona fides of the appellant.

9. As regards the cases relied upon by the High Court, it may be stated that the cases of Akhlaq- un-Nabi v. Nawab Ahmed Shamsi 1986 CLC 1100 and Ghulam Nabiv. Muhammad Sachal 1986 CLC 2858 are not relevant at all to the point under consideration. As regards Sutlan Press Limited (supra) it was held in that case that mere ipsi dixit of the landlord that he requires the premises in dispute in good faith is not enough. It was further held that "what is meant by" requires in "good faith" is that the landlord requires the premises for his reasonable needs " When a landlord, as in the case in hand, wants to do business after completion of his education and wants to become self-employed in business, such a desire cannot but be termed as bona fide unless there are other attending circumstances which make his need not a bonafide need. In the case of Muhammad Azizullah (supra) it was held that mere desire of statement even on oath that landlord wanted to carry on business in disputed premises by itself was not sufficient to prove his bona fides for his requirement. In this case the landlord wanted to carry on his business in the disputed shop after his retirement. If a landlord has retired from service and wants to employ himself by carrying on business in his own shop, it could be against all canons of justice to deprive him of the use of his own property unless he is expressly prevented by law from doing so or there are other relevant factors which show that the need is not bona fide.

10. We, therefore, allow the appeal, set aside the impugned judgment of the High Court and restore that of the Controller. However, by consent of the appellant, we allow the respondents one year's time to vacate the premises and hand over vacant possession to the appellant and also to continue to deposit monthly rent in the Court of Controller, failing both or either, the respondents shall be liable to be evicted forthwith without notice. The parties are left to bear their own costs.