MUHAMMAD NASEERUDDIN vs Mst. HASHMAT BIBI

1. ' This appeal under section 21 of the Sindh Rented Premises Ordinance, 1979 hereinafter called the Ordinance, is directed against order, dated 27-11-1989 passed by the then learned IIIrd Rent Controller, Karachi, West, in Rent Case No,192 of 1987, whereby the eviction application of appellant was dismissed. The facts relevant for decision of this appeal are as follows:--- ' Appellant Muhammad Naseeruddin on 19-2-1987 filed eviction application against respondent Mst. Hashmat Bibi for her eviction from shop, situate on Plot No,B-2/1, Pak Colony, Manghopir Road, Karachi, on the grounds of default in payment of rent, bona fide personal use, subletting, impairing value and utility of the premises, and nuisance. It is alleged that respondent did not pay rent after November 1986. According to appellant, he is running a General Store in a shop which is adjacent to the demised shop and he requires said shop for himself and for his sons. The respondent resisted the claim of appellant and stated that said shop was rented out to her husband in the year 1972 and after his death, she is the tenant and is paying rent regularly at the rate of Rs,200 p.m. According to her, the appellant, now, wants to increase rent from Rs,200 to Rs,500 p.m. And since she declined to pay rent at above rate these proceedings were started against her. She emphatically denied all the allegations of the appellant.

2. ' At trial the appellant filed affidavit-in-evidence of his two sons namely, Waheeduzzaman and Shamsuzaman. The respondent filed affidavit in evidence of her attorney Abdul Jabbar, Muhammad Hussain Qureshi and Abdul Majeed. All above named were cross-examined.

3. ' Learned Rent Controller settled the following issues:--

(1) Whether the opponent has committed default in payment of monthly rent?

(2) Whether the applicant requires the premises in question in good faith for his own occupation or for the occupation of his children?

(3) Whether the opponent has committed such acts which impaired the value of the premises in question?

(4) Whether the opponent has sub-let the premises without the consent of applicant?

(5) Whether the opponent indulged in such activities which caused nuisance to the neighbours?

(6) What should the order be?

4. ' All the issues were decided in favour of respondent and consequently learned Rent Controller dismissed the application by the order which has been impugned in this appeal.

5. ' Learned counsel for appellant only challenged the findings of learned Rent Controller on the point of bona fide personal use and the findings recorded on other issues have not been impugned, therefore, in this appeal only the plea of personal requirement is to be considered.

6. ' It is contended by learned counsel for appellant that, in spite of the fact that bona fide personal requirement of appellant was established by a convincing evidence, yet, learned Rent Controller recorded finding on this point against him. He also argued that in view of case-law reported in (1)

7. 1973 SCM R 185 Suba Mal v. Kika Ram alias Heman Das, (2) 1989 SCM R 1366 Mst. Saira Bai v. Syed Anisur Rahman, (3) 1989 SCM R 538, Bashir Ahmed v. Muhammad Shafi, (4) PLD 1990 SC 394 Haroon Kassam and another v. Azam Suleman Madha, the eviction of the respondent should have been ordered. In Sabu Mal case, it was held by Hon'ble Supreme Court that a choice as to house in which a landlord would like to live is matter within his prerogative and discretion. In Mst. Saira Bai's case, Hon'ble Supreme Court observed that only condition to be satisfied by a landlord was that he required the premises in good faith. In Bashir Ahmed's case, it was observed that in case of personal requirement it .Is the judgment and the need of the landlord about which he is the best judge. In Haroon Kassam case, it was observed by Supreme Court that there was nothing unreasonable in the landlord's insisting that a particular portion of building should be made available to him. A perusal of evidence available on record reveals that appellant has failed to establish his plea of bona fide personal use. The principles laid down in above cited cases are not attracted to the circumstances of this case, which are ex facie, distinguishable. Respondent's witness namely Abdul Shakoor in para. 10 of his affidavit-inevidence, stated that Plot No,B-2/1 Pak Colony stands in the name of Qumer Zaman, who is a son of the appellant. The respondent has produced a photo copy of P.T.I in proof of this contention. Said witness on this point was not cross- examined. Therefore, the conclusion would be that Qumer Zaman is the owner of the building and not the appellant. A landlord, as per definition given in the Ordinance, means the owner of the premises and includes a person, who is for the time being authorised or entitled to receive rent in respect of such premises. It is not necessary that a landlord shall under all circumstances, be owner of the premises, but once he claims to he landlord without being owner A of the premises, he is required to disclose this fact in the eviction application and also to prove that he has been authorised or is entitled to receive rent on behalf of the owner. In this case so has not been done.

8. Nowhere in the eviction application or affidavit-in-evidence, it is mentioned that appellant is authorised or entitled to receive rent on behalf of the owner. On the contrary, the appellant in these proceedings has been shown as owner. The appellant without being specifically authorised in this behalf by Qumer Zaman, could not at his own initiate the eviction proceedings against respondent.

9. 'Personal use' as defined in the Ordinance, means, the use of the premises by the owner thereof or his wife (or husband), son or daughter. The possession of the shop is claimed by the appellant for himself and for his two sons namely, Waheeduzzaman and Shamsuzaman. Qameru Zaman being the owner of the shop, his abovenamed two brothers and his father could not legally claim possession of the shop on the ground of personal bona fide use. Even otherwise, on merits also the appellant is not entitled to claim its possession. Through the affidavit of respondents witness Abdul Jabbar it has come on record that there is another Commercial Plot, having No,C-2/45 in the name of appellant's wife namely Mst. Zubaida, which is on the other side of the road and opposite to plot No,B-2/1 and on the former plot there are 7 shops. These shops, according to respondent, are on rent except one, which is said to be still vacant. On the plot in question viz. B-2/1 admittedly there are 6 shops. Appellant's witness Shamsuzaman, in cross-examination, clearly admitted that at the time eviction application was filed the appellant was in possession of one shop, while on 7-7-1988, when his cross-examination was recorded, he (appellant) was in possession of two shops.

10. According to said witness, the possession of second shop was delivered to appellant four months prior to the just abovementioned date. The case of appellant is that he needed one more shop for his business, which, in fact, he got during the pendency of these proceedings. Nowhere he alleged that his requirement was of three shops. It appears that all the shops constructed on plot No,B-2/1 are of the same size and are located in the same direction. Appellant's witness Waheeduzaman though in cross- examination denied the suggestion that area of all these shops was equal, but the appellant neither in eviction application nor in affidavit-inevidence pointed out any dissimilarity in these shops. It being so, the appellant had many opportunities during the pendency of these proceedings, to occupy the shops which had fallen vacant but were again rented out to various persons. Witness Shamsuzaman has admitted that a shop, on the plot in question, was vacated by a tenant and it was re-let to an electrician on Ist July 1988. This event has completely nullified the plea of personal requirement. Regarding 7 shops on plot No,C-2/5, witness Shamsuzaman is on record to have stated that a few of them were vacated recently but were again rented out to other tenants. Of course about these shops he maintained that his father was trustee, but he never denied the fact that his mother was the owner of those shops. Under the circumstances, bona fide requirement of appellant is not established.

11. ' In consequence, I do not find any merit in this appeal and the same is dismissed with no order as to costs.