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Before Haider Ali Pirzada, J
AMANULLAH KHAN-Appellant .
versus
Hafiz ABDUL GHAFFAR-Respondent
First Rent Appeal No. 562 of 1982, decided on 7th October, 1984.
(a) Civil Procedure Code (V of 1908)
-- O. XLI, r. 19-Dismissal of appeal in default--Restoration-Court has to consider while dealing with application for restoration, position of party concerned rather than conduct of members of bar, though it may sometimes be difficult to disassociate one from the other Litigant should not be deprived of hearing unless there has been something equivalent to misconduct or gross negligence on his part or something which cannot be set right by his being ordered to pay costs-Where non-appearance is due to default of counsel engaged in case, similar consideration will mutatis mutandis be applicable, when Court has to decide whether there was "sufficient cause" for nonappearance of party or counsel-No general rule could be laid down as to what constitutes "sufficient cause" for non-appearance by counsel engaged-Each case is to be decided on its own facts.
Ss. 13, 15 & 21(1)-Ejectment proceedings on grounds of personal bona fide need of landlord and his son-Question of necessity has to be judged by Rent Controller in context of different circumstances.
Ss. 13, 15 & 21(11-Ejectment proceedings on grounds of personal bona fide need of landlord and his son-Averment in application about requirement of landlord for his use and for use of his son fully supported in landlord's and his son's depositions-Nothing brought out in cross-examination which could show that claim of personal need for himself and his son's use was to be false or based on wrong statement----Held, assertion of landlord on oath as to requirement of premises for his personal use has to be accepted if consistent with his averment in his application and not shaken in cross-examination or disproved in rebuttal.
Hasan Khan v. Mst. Munawar Begum P L I) 1976 Kar. 832 ref.
--- Ss. 13, 15 & 21(1)-Rent Controller has discretion either to make or not to make an order against tenant on proof of circumstances mentioned in S. 13(3) (a) (ii)-Such discretion by Rent Controller has to be exercised judicially keeping in view principles laid down by superior Courts for exercise of discretion in such cases-Exercise of such discretion could be interfered with by High Court only if it was found to have been exercised in capricious or arbitrary manner or against principles laid down by superior Courts.
Ss. 13, 15 & 21(1)-Ejectment proceedings on grounds of personal need of landlord and his son-Onus of proof on landlord--Extent of hardship that may be caused to one party or the other in case an order for eviction is passed or refused-Each party has to prove, in such case, its relative advantages or disadvantages and entire onus cannot be thrown on landlord. to prove that lesser disadvantages will be suffered by tenant and that he was remedyless-Each party must adduce evidence to show what hardship would be caused to him by granting or refusal of order of ejectment and it will be for Court to determine whether suffering of tenant, in case an order of ejectment was made, would be more than of landlord by its refusal.
Keller v. Goodwin (1947) A E R 810 and K. Parsaramaiah v. Pokuri Laksiwmma A I R 1965 A I' 220 quoted.
Ss. 13, 15 & .1(1)-Ejectment proceedings on grounds of personal need of landlord and his son-Landlord not only establishing that he has not only genuine requirement to possess disputed premises but it was necessary for him to do so in order to augment his income and maintain himself properly-Landlord also proving the fact that his own son having become of age wanted to join him in their ancestral business in said premises--Contention that there was nothing to show that landlord's son had any experience of said business therefore, it would be fruitless to allow them to run that business by evicting tenant---Nothing brought on record to show that he was incapable of running business in question in disputed premises-Held, building belonged to landlord and there was no reason that he could not establish business in question-Tenant had been running his business in said premises for 20 years and must have made sufficient profit-Twenty years being sufficiently long period for which landlord had been deprived of premises, there was thus no equity in favour of tenant for continuing possession any further in circumstances.
Muhammad Ishaq Shams for Appellant.
Mansoorul Arfin for Respondent.
Date of hearing : 11th March, 1984.
This appeal arises out of the order dated 12-4-1982 of the IX Senior Civil Judge and Rent Controller, Karachi, whereby allowing ejectment application No. 2371 of 1978 and directing the appellant to hand over vacant and peaceful possession of the premises within 119 days from the date of the order.
By consent of the parties I have heard the application under Order XLI, rule 19, C. P. C. as well as main appeal.
This is an application for restoration of the above appeal which was dismissed for default on 18-1-1984. Mr. Qureshi the learned counsel for the appellant had left the son of the appellant as well as a chit with the Reader to inform me of the fact that he was engaged before my brother Ali Nawaz Budhani, J. He did not make other arrangement for the above appeal because he expected the case before the other Court to be over earlier, but that to meet all contingencies he had asked a representation to be made to me if the appeal should be reached earlier, that he was actually engaged before another Bench and that he would be before me in a few minutes. I dismissed the appeal as he was not present before me and busy before the other Bench. In these circumstances the learned counsel filed the above application for re-admission of the appeal at its original number. The application was supported by the affidavit of the appellant's son. The respondent filed counter-affidavit and resisted the application. Mr. Qureshi filed his own affidavit. It is obvious that the absence of the learned-counsel on 18-1-1984 was not intentional and in toe peculiar circumstances of the case there was sufficient cause for re-admission of the appeal. I would only point out that in dealing with applications of this kind, the Court has to consider the position of the party concerned rather than the conduct of the members of the bar, though it may sometimes be difficult to dissociate the one from the other. I am of the view that a litigant should not be deprived of hearing unless there has been something equivalent to misconduct or gross negligence on his par or something which cannot be set right by his being order to pay costs where the non-appearance is due to the default of the counsel engaged in the case, a similar consideration will mutatis mutandts be applicable, when the Court has to decide whether there was sufficient cause for the non-appearance of the party or counsel. It is difficult to lay down any general rules as to what will constitute "sufficient cause" for non-appearance by counsel engaged in a case. Each case is to be decided on its own facts and in matter like this there is no general rule of universal application which can be laid down. I accept the application and restore the appeal at its original number.
The brief facts of the case are that the respondent is owner of commercial building on plot No. 31, group No. 3, commercial area No. 2, Liaquatabad Karachi, and the appellant is tenant in respect of ground floor of the said building consisting of five shops and one godown at a monthly rent of Rs. 250. The appellant is .running a hotel under name and style of Cafe Nagina'. The respondent filed ejectment application on the ground of his personal bona fide need for his own use and the use of his son Abdul Sattar. It was averred in the application that he reasonably and in good faith required the said premises in occupation of the appellant for his own bane fide use for the following reasons;-
(i) "That the respondent's ancestral business of shoe making for which be had been running Shoe Manufacturing Factory in the 6 shops premises on the ground floor of the building and 4 shops were in occupation of the appellant.
(ii) However, in about the year 1965 on account of civil disturbances in the wake of election campaign of Ayub Khan the said Shoe business of the respondent had to be perforce discontinued as his factory was looted and great damage was caused to his goods and machinery installed in the said premises.
(iii) That the respondent, thus, had to take to the business of Dalmia Cement Agency for which no shop premises were required.
(iv) That on conditions returning to normal and the respondent being in a position to restart his ancestral business of shoe making, in the year 1973, he applied to the Rent Controller for possession of these shops on the ground of personal bona fide need being Rent Case No. 1522/73.
(v) However that application of the respondent did not succeed as due to improper drafting the respondent's personal need was not clearly specified.
(vi) The respondent, therefore, filed another application being Rent Case No. 2336/76 in which too his counsel unfortunately failed to fully incorporate the full details and particulars of the respondent's personal need and as such the respondent was advised to withdraw the same.
(vii) The respondent's personal bona fide need of the said premises became all the more pressing by reason of the fact that his son Abdul Sattar had come of age and had completed his education and wanted to join the respondent in their ancestral business of manufacture of shoes of which the premises in occupation of the appellant was an ideal choice as the respondent had been previously carrying on the said business therein.
(viii) The respondent thus was in good faith in need of the said premises in occupation of the appellant for his own use and the use of his son and was entitled to an order to put him in possession thereof. The respondent further stated that he was not occupying in the same urban area for the purpose of business any other such building or rented land suitable for his needs nor had the respondent vacated any such building or rented land, without sufficient cause in the same urban area."
The appellant resisted the ejectment application. It was averred in the written statement that since the inception of the tenancy the premises was one and did not consist of five shops and one godown. It was averred that the respondent wanted to increase rent of the premises abnormally with a view to bring pressure of his intentions he started avoiding rent. The appellant suspected his intentions and therefore sent the rent by money order and subsequently with the permission of the Court, started depositing rent in Court. It is further averred that the respondent filed ejectment application No. 1522 of 1973 on the grounds of default, unauthorised addition and alterations and personal bona fide use. The appellant contested the application which was dismissed. The respondent filed rent appeal which was dismissed by the First Appellate Authority and the order of the Appellate Authority was finally confirmed in second appeal by this Court. The respondent also filed suits for injunction against the appellant. The respondent also filed ejectment application No. 2336 of 1976 in which he failed to fully incorporate the full details and particulars of the personal need and as such the respondent has been advised to withdraw the same as such the same was withdrawn.
The appellant further averred in his written statement that the respondent not satisfied with the above litigations again filed ejectment application which according to him is vexatious and barred by res judicata. The respondent's son was employed in Bank which fact the respondent has suppressed from the Court. According to him the respondent has no cause of action.
The Rent Controller framed issues on 5-11-1978;--
"Issue No. L-Whether the demised premises consist of five shops amalgamated into ore tenement or the same is only one tenement from the inception of opponent's tenancy
Issue No. 2.-Whether the applicant reasonably and in good faith needs the premises in suit for the bona fide need of himself and his son
Issue No. 3.-Whether this application is barred by res judicata
Issue No. 4.-What should the order be
The respondent filed his affidavit-in-evidence and also filed affidavit-in-evidence of his son Abdul Sattar and Latif Bux. The appellant filed his own affidavit-in-evidence and affidavit-in-evidence of Muhammad Sardar and S. Iftikhar Ali.
The learned Rent Controller on the basis of evidence produced by the parties and taking into consideration the arguments advanced by the learned counsel for the parties, decided issue No. 2 in the affirmative and held that the application is not barred by res judicata and allowed the ejectment application on the ground of personal bona fide use for respondent and for the bona fide use of his sore vide his order dated 12-4-1982.
The appellant abovenamed, being aggrieved by the order dated 12.4-1982 of the learned Rent Controller has preferred this First Rent Appeal, on. the grounds mentioned in the memo. of appeal. I heard the learned counsel of the parties.
Mr. Muhammad Ishaq Shams has urged the following grounds in support of the main appeal
(1) The respondent has not proved bona fide need.
(2) The learned Rent Controller has not exercised discretion judicially.
(3) The order is hit by res jtulicata.
Mr. Muhammad Ishaq Shams learned counsel for the appellant has cited the following decisions in support of his arguments.
1978 S C M R 437 ; 1980 S C M R 783 and 596 ; P L D 1979 S C (AJ&K) 139; 1982CLC68;1983CLC489;1983CLC464; P L D 1983 Kar. 196 ; P L D 1983 Kar. 121; P L J 1977 S C 463 (sic); PLD1977SC220;.PLD1982SC110andPLD1971SC.82.
On the other hand Mr. Mansoorul Arfin the learned counsel for the respondent has contended that the respondent has proved his own bona fide need and also need of his son. The learned Rent Controller has exercised discretion judicially. The application is not barred by the principles of res judicata. The learned counsel for the respondent has relied on the following decisions in support of his arguments.
P L D 1979 Kar. 597 ; 1981 S C M R 528 ; 1980 C L C 1422 ; 1981 C LC738 ;PLD1982SC201;PLD1982SC767;AIR 1954 Pesb. 97 ; AIR 1954 Pb. 135 ; AIR 1958 S C 113 ; P L D 1982 S C 218 ; P L D 1969 Lah. 327 ; 1983 S C M R 113 ; 1978 S C M R 437 ; AIR 1952 All. 618 ; A I R 1917 Mad. 689 ; P L D 1982 Kar. 770 ; P L D 1982 Kar. 790 ; 1982. C L C 1003 ; P L D 1982 S C 362 ; 1972 S C M R 561 ; .1982 C L C 478 and P L D 1978 S C 220.
Mr. Muhammad Ishaq Shams the learned counsel for the appellant has submitted that the respondent had filed Rent Case No. 1522 of 1973, for ejectment of the appellant on among other grounds, the ground of personal requirement. The learned counsel has pointed out that the said case was dismissed by the Rent Controller, by his order dated 30-9-1974. Accordingly Rent Appeal was filed by the respondent which was dismissed by the Appellate Authority. The respondent had filed Second Appeal No 63 of 1976, before the earstwhile High Court of Sind and Baluchistan, at Karachi, which was also dismissed in limine on 5-4-1976. The respondent also filed Rent Case No. 2336, in which too his counsel failed to fully incorporate the full details and particulars of his personal need as such the respondent had been advised to withdraw the same and the respondent had accordingly withdrawn the said application. The argument of the learned counsel for the appellant is that since the issue between the parties in the earlier litigation was substantially the same in the rent case out of which the present appeal has arisen, the rent case should have been dismissed summarily by the learned Rent Controller, as provided by section 14 of the repealed Ordinance.
In my opinion, the argument of Mr. Muhammad Ishaq Shams the learned counsel for the appellant is not valid. In the year 1973, the respondent had applied for eviction of the appellant on the ground that he required the premises in question for his own use as he had no other suitable place for carrying his business except this. The Rent Controller had dismissed the ejectment application as the respondent had failed to show what type of business he wanted to start in the premises in question and that respect what steps he had taken. The respondent preferred Rent Appeal being No. 563 of 1974, before the District Judge which was also dismissed by judgment dated 18-10-1975. In the circumstances both the Courts came to the conclusion that such a vague assertion cannot establish personal bona fide use of the landlord. The second appeal was dismissed in limine by Mr. Fakhruddin G. Ebrahim, J., (as he then was). But the circumstances materially changed in the year 1978. The respondent's personal bona fide need of the premises in question had become all the more pressing by reason of the fact that his son Abdul Sattar had come of age and had completed his education and wanted to join the respondent in their ancestral business of manufacture of shoes for which the premises in occupation of the appellant were an ideal choice as the respondent had been previously carrying on his said business therein. In view of the changed circumstances the Rent Controller was of opinion that the respondent was in genuine need of the premises in question for the reasons that in the ejectment case on the grounds of the requirement of the premises for the use of his son who had come of age and was able to do the business of shoe manufacturing and ordered that the appellant; should be evicted. It is manifest that the question of necessity has to be judged by the Rent Controller in context of different circumstances.
The learned counsel for the appellant has cited case of Allah Rakha v. Muhammad Shafi 1978 S C M R 437. Their Lordships of the Supreme Court held that the real test would be whether the need is based on good faith' is a question of fact and finding on this subject could be taken exception to in this Court unless it is known that it suffers from violation of some fundamental legal principle in the matter of appreciation of evidence or omission of evidence or misreading of evidence. In the instant case the learned Rent Controller on the subject of good faith' has given a verdict in favour of the respondent.
Mr. Shams the learned counsel for the appellant has contended that the ejectment application under appeal is barred by the principles of res judicata. Mr. Shams the learned counsel for the appellant has referred to several decisions of the superior Courts on the point which I need not discuss as I am in respectful agreement that ordinarily, such ejectment application is hit by the principles of res judicata. However, the aforesaid rule has exceptions. In the case of Ghulam Bahauddin Qureshi v. Hawa Bai P L D 1979 Kar. 597, Mr. Z. A. Channa, J. (as he then was) observed :
"On a cursory reading of section 14, the argument may seem attractive, by reason of absence of any reference in section 14 to the requirement of the two issues being between the same parties as required in section 11, Code of Civil Procedure, but a closer examination of the provisions of section 14 of the Ordinance leaves no room for doubt that the requirement of one landlord of premises in the occupation of a tenant for his personal use or the use of his children from the requirement of a successor landlord,. who may have purchased the premises for the purposes of personal occupation, but even the requirement of the same landlord at different times could be different. For instance, a lardlord may have been found not to be bona fide requiring the accommodation in the occupation of his tenant, because he is then occupying suitable accommodation, either rented or given to him by Government or by his employers. However, if the tenant is ejected from the accommodation in his occupation, either on account of proceedings taken against him by his landlord or on account of his retirement from service or similar valid reason, the requirement of the landlord will then completely change and he would clearly be requiring his own house for his personal occupation. It cannot be said that the issue of his requirement on the former occasion, when .he was occupying suitable accommodation, and his requirement on the subsequent occasion, when he has been ejected from his former accommodation and may be practically on the streets, is the same. In any case, can the requirement of one landlord and the requirement of his successor landlord be the same. One landlord may be having enough accommodation for his small family while the successor landlord may be having no accommodation or may find the accommodation in his occupation wholly insufficient for his large family. In considering, therefore, whether the issue subsequently raised is substantially the same as a former decided issue, the circumstances of each case have to be taken into consideration."
As regards second contention of the learned counsel for the appellant that the respondent has not proved bona fide need.
The learned counsel for the respondent has contended that the respondent has proved bona fide requirement of the premises in question.
The sole question for determination in the case is whether the respondent has satisfied the legal requirement that the premises in question is needed by him for his own use and the use of his son. In the present case the respondent has stated in his application for, ejectment that his personal bona fide need of the said premises has now become all the more pressing by reason of the fact that his son has also come of age and has completed his education and wants to join him in their ancestral business of manufacturing of shoes for which the premises in occupation of the appellant are an ideal choice as the respondent has been previously carrying on his said business therein. The respondent, thus in good faith is in need of the said premises for his own use and the use of his son. He appeared himself in the witness-box and stated that his ancestral business is that of manufacture of shoes and as such he was running his shoe manufacturing factory in two shops and one godown in tuis very building while other four shops were in occupation of the appellant and three shops were vacant. In 1964 -his shoe manufacturing factory was looted and in all his goods and machinery were damaged and stolen. He was therefore forced to discontinue his business. He was cross-examined. In his cross-examination the respondent admitted that he had taken the ground of personal requirement in Rent Case No. 1522 of 1973 which was dismissed. The finding of the Rent Controller was upheld by the learned appellate Courts.
The respondent also filed affidavit of his son Abdul Sattar for whom he required the premises. He stated that he is anxious to join his father in his ancestral business of shoe-making.
The respondent also filed affidavit of Latif Bux who stated that he knew the respondent as he was also in the business of manufacture of shoes. He was cross-examined in which he stated that at present he was not running a shoe factory.
On the other hand, the only evidence adduced by the appellant in rebuttal was that the respondent had never any shoe factory in the premises which was allegedly looted in 1964-65. He further stated that the respondent bad after getting one shop wherein flour mill was installed, bad established his shoe factory and is doing his business. He denied that the respondent required the premises for his bona fide use. In his cross-examination he admitted that he had no knowledge if the respondent was doing shoe manufacturing business. He also stated that he had no knowledge that the respondent and his son wanted to start shoe-making factory in the premises in question. The appellant also filed affidavit of Muhammad Sardar and S. Iftikhar Ali. Muhammad Sardar had stated that he had never seen any shoe factory in the disputed premises, nor was there any looting or damage of the same during the disturbances in the year 1964-65. In his crossexamination he admitted that whatever he stated in para. 4 of his affidavit was not correct, that is, the respondent had established his business in one of the shops. The other witness S. Iftikhar Ali admitted in his cross-examination that he had no knowledge about the business of the respondent. He also denied the contents of para. 4 of the affidavit wherein it was stated that the respondent had not established shoe factory in one of the shops.
It was averred in the ejectment application that the respondent requires the disputed premises in good faith for his use and also for the use of his son. As against all the aforesaid evidence there is only word of the appellant that the respondent had established his shoe factory in one of the shops where a flour mill was installed. in support he examined two witnesses who did not support him.
It is apparent that the averment in the application about requirement o fl the respondent for his use and for the use of his son has been fully supported in respondent's deposition and his son's deposition and nothing has been brought out in cross-examination which could show that claim of personal use for himself and his son's use is to be false or is based on wrong statements.
It is well-settled legal position that the assertion of the landlord on oath as to requirement of the premises for his personal use is to be accepted if consistent with his averment in his application and not shaken in crossexamination or disproved in rebuttal. The evidence of the respondent in the instant case fulfilled the standard laid down in the case of Hasan Khan v. Mst. Munawar Begum P L D 1976 Kar. 832.
As regards the contention of the learned counsel for the appellant that the Rent Controller has not exercised discretion judicially. Under the section 1 3(3) (a)(d) the Rent Controller has discretion either to make or not to make an order of ejectment against the tenant on proof of circumstances mentioned in the aforesaid section. This discretion, however, has to be exercised judicially keeping in view the principles laid down by the superior) Courts for exercise of discretion in such cases. The exercise of this discretion by the Rent Controller could be interfered with by this Court only if it was found to have been exercised in capricious or arbitrary manner or against the principles laid down by superior Courts for exercise of such discretion. I find that the Rent Controller has exercised his discretion in ordering the ejectment of the appellant on sound reasoning which were in accord with the principles laid down by superior Courts for exercise of discretion in such circumstances.
The last argument that was advanced before me by Mr. Shams for the appellant was that taking an overall picture of the various aspects of the present case, it cannot be said that advantage was in favour of the respondent/ landlord.
Let me now probe into the extent of the hardship that may be caused to one party or the other in case an order for eviction is passed or refused. It seems to me that in deciding this aspect of the matter each party has to prove its relative advantages or disadvantages and the entire onus cannot be thrown on the applicant to prove that lesser disadvantages will be suffered by the opponent tenant and that he was remedyless. I am of the view that each party must adduce evidence to show that hardship would be caused to him by granting or refusal of the order and it will be for the Court to determine whether the suffering of the tenant, in case an order was made, would be more than that of the landlord by its refusal.
The whole object of the Ordinance is for regulation of relations between landlords and tenants and to protect their interest and section 15 specifically enumerates the grounds which alone will entitle a landlord to evict his tenant. The onus of proof of this is certainly on the landlord. I see no sufficient reason for holding that once that onus is discharged by the landlord it shifts to the tenant making it obligatory on him to show that greater hardship would be caused to him by passing the order than by refusing to pass it. In my opinion both parties must adduce all relevant evidence before) the Court, the landlord must show that other reasonable accommodation was not available to him and the tenant must also adduce evidence to that effect. It is only after shifting such evidence that the Court must form its conclusion, on consideration of all the circumstances of the case as to whether greater hardship could be caused by passing the order than by refusing to pass it.
In the case of Keller v. Goodwin (1947)AER810, Lunskey, J. observed as follows :
"The next matter one has to consider is whether there was evidence on which the county Court Judge could come to the conclusion that there would be greater hardship to making the order than not making the order. He has taken into account, in relation to that question, first the position of the landlord and secondly, the position of the tenant. It is argued before us that he was wrong in doing that. In my view, he was quite entitled, in considering hardship, to have regard to the financial means of the tenant in considering whether he could obtain other accommodation because, by reason of his means, he was in a position, not merely to rent premises, but to buy house. It seems to me also that, on this question of hardship, the Judge was entitled to take into account the fact that the tenant had taken no real steps to try and find other accommodation or no real steps to buy a house. The Judge took the view on the evidence that the tenant had not discharged the onus which lay on him of proving that greater hardship would be inflicted by making the order than by not making the order. It was said he ought to have disregarded the means of the tenant because he had no evidence of the landlord, but the onus was on the tenant. 'The landlord was called, and no question was put to her about the matter."
To the same effect is the decision in the case of K. Parsoramaiah v. Pokuri Lakshamma AIR 1965AP220, where a Division Bench of the High Court narrated the mode and circumstances in which the comparative advantages and disadvantages of the landlord and tenant could be weighed. In this connection the Court observed as follows :-
"Thus the hardship of the tenant was first to be found out in case eviction is to be directed. That hardship then has to be placed against the relative advantages which the landlord would stand to gain if an order of eviction is passed.
"What is however required is a careful consideration of all the relevant factors in weighing the relative hardship which is likely to be caused to the tenant with this likely advantage of the landlord on basis of the available material on record. If that is done, the exercise of the wide direction which the proviso confers on the Rent Controller is not likely to go wrong. The proviso however should not be read as if it confers a practical immunity on the tenant from being evicted. That would destroy the very purpose of section 10(3) (c). Likewise the requirement of the landlord in accordance with that provision alone cannot be given absolute value because that would mean to underestimate the value of the proviso to that section. Keeping in view therefore the purpose of this provision and the necessity of balancing the various factors each individual case has to be decided in the light of the facts and circumstances of that case."
In view of my finding it has been established that the landlord has not only genuine requirement to possess the disputed premises, but it is necessary for him to do so in order to augment his income and maintain himself properly. Being the owner of the premises he cannot be denied eviction as his son wanted to join the respondent in their ancestral business of manufacture of shoes. It was vehemently contended by Mr. Shams that there is, nothing to show that respondent's son had any experience of manufacturing shoes or running shoe factory and, therefore, it is fruitless to allow them to run shoe factory by evicting the appellant. The respondent was admittedly doing shoe business, and has got sufficient experience of business, nothing has been brought on the record to show that he is incapable of running shoe factory in the premises. The building belongs to him and there is no reason' for me to think that he cannot establish a shoe factory.
On the other hand the appellant has been running the hotel for the last 20 years and must have made sufficient profits. This is a sufficiently lone period for which the respondent landlord has been deprived of the premises. There is thus no equity in favour of the appellant for continuing in possession any further.
After going through the record with the assistance of the learned counsel for the parties and after perusing the order of the learned Kent Controller has rightly granted ejectment of the appellant on the ground of personal requirement.
I, therefore, find no justification in the above appeal and it is, therefore, dismissed but I grant two months to vacate the premises on the condition that the appellant shall continue to deposit rent in terms of the Rent Controller's order. However in case he will make default the respondent shall be entitled to file the execution application before the expiry of the abovementioned two months time.
In the circumstances, there will be no order as to costs:
M, Z, M. Appeal dismissed,
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