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First Rent Appeal No.317 of 1983, decided on 21st December, 1986.

---S.15(2)(vii)--Ejectment of tenant--Personal bona fide requirement of landlord--Proof--Landlord filed rent case against tenant on ground of personal bona fide requirement only about three months after dismissal of his earlier rent case filed on grounds of subletting and default--Had landlord been in need of disputed shop he should have taken that ground in earlier rent case, as business for which shop was required, was being done by him for so many years--Landlord also proved having other shops at his disposal--Landlord admittedly had already got vacated two shops from other tenants on ground of personal requirement--Landlord, in circumstances, held, failed to establish personal bona fide need in respect of shop in dispute.

1984 Law Notes 61; 1970 Law Notes 634; 1985 S C M R 1769; 1969 S C M R 131; 1981 S C M R 299; 1982 C L C 1012; 1986 C L C 2628 and 1986 C L C 2602 ref.

S.S. Hamid for Appellant.

A.K.M. Idris for Respondent.

Date of hearing: 7th December, 1986.

Appellant /tenant has filed this appeal under Section 21 of Sind Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance) whereby he has challenged the eviction order dated 12th March, 1983 of XIII Senior Civil Judge/Rent Controller, Karachi.

2. Rent Case No.4920/81 was filed on 5-11-1981 by respondent Hakim Muhammad Fazal Haq under Section 15 of the Ordinance on the grounds of subletting and personal bona fide requirement. Appellant filed written statement on 9-12-1981. The Rent Controller on the pleadings of the parties framed two issues:-

"(1) Whether the appellant handed over the possession of the premises to some other person, if so, its effect

(2) Whether the respondent requires the premises in good faith for his own use and occupation "

3. The Rent Controller has allowed the application on personal bona fide requirement of respondent only. The issue of subletting has been decided against the landlord and no cross appeal has been filed.

4. Before the Rent Controller, respondent Hakim Muhammad Fazal Haq examined himself and one Haji Muhammad Ali Khan whereas appellant Khawaja Khalid Mehmood examined himself.

5. Mr. S. S. Hamid appearing for appellant contended that prior to this one rent case No.3025/78 was filed on the ground of default and subletting by the respondent which was dismissed on 27-9-1981 and after about three months he again filed another rent case. It is argued that respondent is owner of 10/11 shops in the premises and he has not proved the bona fide requirement for himself. He has referred to the cases reported in 1984 Law Notes page 61 and 1970 Law Notes page 634.

6. Mr. A.K.M. Idris appearing for the respondent contended that landlord has proved the personal bona fide requirement and there is no bar for filing a fresh case. It is argued that respondent is a Hakim and Qazi. He wants to do his business in the shop in question. Reliance has been placed on 1985 S C M R 1769, 1969 S C M R 131, 1981 S C M R 299, 1982 C L C 1012 and 1986 C L C 2628, 2602.

7. Since the issue of subletting has been decided against the respondent, therefore, I do not like to discuss the evidence adduced by the parties on this point.

8. Respondent in his affidavit in evidence has stated that he is occupying and doing business at House No.967 and 968 at Agra Taj Colony, Mason Road, Karachi. He stated that he is a qualified Hakim and Qazi. In support he has furnished copies of certificates. He required shop No.10 for personal bona fide use and occupation for running Dawakhana-cum-Qazi Office. He wants to do this business as he is not in a position to go upstairs again and again. In para 8, he has stated that he has not occupied any shop anywhere in district or in Pakistan. His witness, Haji Muhammad Ali Khan, has corroborated the version given by respondent and stated that opponent is running business at Agra Taj Colony, Mason Road, Karachi, and his bon fide requirement is genuine for Dawakhana in the shop.

On the other hand, appellate, Khawaja Khalid Mehmood in his evidence and written statement has stated that respondent does not require the shop for bona fide use as he has filed the present case with a mala fide intention to enhance the rent. It is alleged that there developed enmity between the parties as complaint under Section 430 PPC was filed by the appellant. He stated that shops No.3 and 6 are in possession of the respondent from 5-2-1981 which were vacated and handed over by his tenant Khawaja Tariq Usman to his son Ehsanul Haq and Shop No.4 is also in possession of Ehsan and that he has already got the eviction order in respect of shops No.2 and 9 by filing rent cases No.3024/78 and 3068/78.

9. Respondent in cross-examination has admitted to have filed earlier rent Case No.3025/78 against the appellant and admitted that case was dismissed on 27-9-1981 on merits. He has also admitted to have filed rent cases No.3024/78 and 3068/78 against the other tenants on the ground of personal requirement of his son Ehtisham and Ehsan and both the cases were decided in his favour and he filed execution proceedings and, that all the three cases were decided on the same date. He stated that he is working as Nikah Registrar for last 20 years. He admits that he was called at the Baghdadi Police Station in respect of the case filed under Section 430 PPC. Haji Muhammad Ali Khan, Ex.A/2, has stated that he is not able to give names of 2/3 tenants of the respondent. His evidence is only of an opinion that respondent requires the premises for bona fide requirement.

10. I have gone through the record and the case law cited by both the parties. The question in his case is whether bona fidely the respondent requires the premises for his own use. It is an admitted position that respondent is a Hakim and Nikah Registrar since so many years and this business he is doing at some other premises. He has not stated in his evidence that the premises which he occupies in Agra Taj Colony are rented one. Not only this but he is a landlord of as many as 10 shops of the same area and two cases for bona fide personal requirement have been decided in his favour for requirement of his sons and the learned counsel have stated at the bar that in both the cases matter is in the Supreme Court. However, each case is to be decided on its own merits but only it is to be seen whether the personal bona fide requirement has been proved. It is admitted position that respondent filed a rent case No.3025 of 1978 on tile ground of subletting and default. In that case no ground for personal bona fide requirement was taken and also during the pendency of this case no other case on the personal bona fide requirement was filed. Had he been in need of the premises he should have taken this ground in the year 1978 when admittedly he is practising as Hakim and Nikah Registrar since so many years. In the meanwhile, he also sought the ejectment in respect of 2 other shops for his' sons. The present rent case has only been filed 21 months after his rent case No.3025/78 was dismissed. Of course, there is no bar for taking the fresh grounds and filing the other rent cases but circumstances are to be seen whether it is with bona fide intention. The ground of cubleting- was again taken in the present case even though it was also not accepted by the Rent Controller in earlier case. The rent case No.3025 of 1978 was dismissed on 27-9-1981 and this rent case No.4920/81 was filed on 5-11-1981. The respondent did not file appeal against the order of Rent Controller whereby his case was dismissed but filed another case. It is also alleged that respondent got vacated shops from Khawaja Tariq and it is now occupied by Anwar. Requirement of landlord is to be judged from the circumstances. No doubt there are number of authorities that it is for landlord to choose the premises but in the present case there are some considerations that in the year 1978 he filed rent case but this ground was not taken and immediately after dismissal of his case he filed another case. The appellant filed case under Section 430 PPC as such there is ill-will between the parties. The other rent cases have already been decided in his favour. I am of the view that no bona fide personal requirement has been proved. I allow the appeal and set aside the order of Rent Controller with no order as to costs.

H.B.T./K-21/K Appeal allowed.

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