MUHAMMAD ASLAM and others vs HANIF ABDULLAH & BROTHERS through Proprietor

ORDER

' HAMID ALI MIRZA, J.---This civil petition for leave to appeal is directed against the judgment, .Dated 15th September, 2000 in F.R.A. No,274 of 1996 passed by a learned Judge in Chambers of High Court of Sindh, Karachi, whereby the said appeal was allowed, consequently the order of eviction, dated 28th July, 1996 passed by Vth Senior Civil Judge and Rent Controller, Karachi South, was reversed.

Hence this petition.

2. The brief facts of the case are that the petitioners/landlords filed Rent Case No,841 of 1991 under section 15 of Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as the said Ordinance) before Vth Senior Civil Judge/Rent Controller, Karachi South against the respondents for their eviction from a shop built on Survey No,28, Survey Sheet N.P.

4. Napier Quarters, Karachi on the ground that the said shop was required in good faith for the personal use of petitioner Ali Jawaid for starting business of confectionary and allied items, The respondents filed written statement wherein they denied the ownership of the petitioners in respect of the property for want of knowledge and stated that it belonged to the Government but the petitioners' father was having the leasehold rights in the said property. The respondents, however, admitted that they were tenants of the said shop at the rate of Rs,120 per month but denied that the petitioners required the said shop in good faith for the personal use of petitioner Ali Jawaid.

Parties filed affidavits-inevidence in support of their respective statements made in the eviction petition and written statement and the deponents were cross-examined by the respective adversary learned counsel for the parties. After recording the evidence and hearing the counsel, the learned Rent Controller passed eviction order against the respondents holding that the petitioner's requirement was in good faith. The respondents preferred F.R.A. No,274 of 1996 before High Court of Sindh, Karachi, which was heard by a learned Judge in Chambers and as per impugned judgment the eviction order passed by the learned Rent Controller was reversed.

3. We have heard the learned counsel for the parties and perused the record. The contention of the learned counsel for the petitioners is that the learned Judge in Chambers has misread the evidence on record consequently arrived at wrong conclusion with regard to personal requirement of petitioner Ali Jawaid in good faith. He further submitted that the learned Judge in Chambers has erred in holding that the petitioners' act of changing the receipt in the name of new tenant in place of original tenants who were going to vacate another shop in favour of incoming tenant on receipt of Pagri (goodwill) would negate the requirement in good faith of the petitioners. He also submitted that the Controller erred in holding that the petitioners have failed to show as to how the shop in possession of the respondents was suitable for their business. He also submitted that the petitioners being the landlords of the shop in question have prerogative right to have any shop for their personal requirement therefore, they have discretion to determine as to which shop they should have for their personal need. He has placed reliance upon Mst. Toheed Khanam v.

Muhammad Shamshad (1980 SCM R 593) and Haroon Kassam v. Azam Suleman Madha (PLD 1990 SC 394).

4. Learned counsel for the respondents has submitted that during the pendency of the proceedings before the Controller two shops fell vacant while during the pendency of appeal one more shop fell vacant but the petitioners changed the receipts in the name of new tenants in place of original tenants consequently need of the petitioners could not be termed to be in good faith. He has placed reliance upon Abid Masood v. Dilshad Khan (1995 SCM R 146) and Shahid Nadeem v.

Muhammad Shafi (2000 SCM R 542). He has also taken us through the evidence on record.

5. We do find substance and merit in the contentions of the learned counsel for .The petitioners. So far the submissions made by learned counsel for the respondents, the same have no merit. There is no dispute as to the ownership rights of the petitioners in respect of the property in dispute. There is also no dispute with regard to the fact that the respondents are tenants of the petitioners in respect of the shop in question. The only ground which prevailed with the learned Judge in Chambers of High Court was that the need of petitioner Ali Jawaid cannot be termed to be in good faith because the petitioners had changed the receipts in the name of new tenants in place of old tenants in respect of three shops which fell vacant during the pendency of the proceedings . Before the Rent Controller and the Appellate Court, the possession of which the original tenants had agreed to pass on to the new tenants on payment of Pagri (goodwill) by the latter subject to condition of change of receipts by the petitioners. Admittedly, the respondents stated that the vacant and peaceful possession of any of the shops which are said to have fallen vacant mentioned in their affidavit and in the cross-examination was not delivered to the petitioners. The practice prevalent in old areas of Karachi City is that shops and apartments' change the hands from one tenant to another on payment of Pagri subject to change of receipt by the landlord in the name of incoming tenant and the landlord only gets fixed percentage of commission on the Pagri amount for the change of receipt but in case no change in receipt is made by the landlord, the incoming tenant in respect of the premises would not pay Pagri amount to the original tenant who in return would not hand over possession to the proposed incoming tenant and the landlord would not in any case put him into possession of premises to enable him to use the said shop for his personal requirement consequently incoming tenant would not be put into unauthorized possession of the premises by the original tenant to entitle the landlord to sue the new occupant of the premises for sub-letting. Admittedly, in the cross-examination, the respondents attorney stated that the entire market, including the shop in question, is suitable for confectionery business.

Petitioner Ali Jawaid, in his affidavit, has reiterated what has been stated by him in the eviction application with regard to his need in good faith for carrying on business of confectionary in the said shop and that the said statement has not been challenged except that the shops having fallen vacant the possession of which was not passed on to them but only the receipts of which were changed in the name of incoming tenants. Nothing has been brought on record to show that any of the shop out of 15 shops was in possession of the petitioners. It has also been brought on record that petitioner Ali Jawaid was jobless and was not carrying on any business and the shop in question was situated in the confectionary market therefore, the same was suitable for the said business. The personal requirement of petitioner Ali Jawaid has been proved to be in good faith consequently the petitioners could not be said to be requiring the said shops mala fide, considering that no reliable and satisfactory evidence has been brought to rebut the evidence of the petitioners.

6. In the circumstances, in view of the aforesaid reasons, leave to appeal is granted and , the petition is converted into an appeal and impugned order passed by learned Judge in Chambers is set aside maintaining the order of Rent Controller consequently the appeal is allowed. However, as requested by the counsel for the respondents, period of one year is given to the respondents to vacate the premises subject to deposit of monthly rent in the Office of Rent. Controller but in case they fail to deposit rent for any of the month, they would forthwith be evicted without issuing notice to them in pursuance of writ of possession to be issued by the Rent Controller with police aid, if necessary.