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First Rent Appeal No. 9 of 1985, decided on 12th November 1986

‑‑‑S. 15‑‑Eviction application, filing of‑‑Prior notice to tenant, whether necessary‑‑Notice to tenant prior to filing of ejectment application, held, was not necessary.

‑‑‑S. 15(2)(ii)‑‑Eviction application on ground of personal bona fide requirement‑‑Maintainability of‑‑A shop other than disputed godown, jointly owned by landlord alongwith others not in physical possession of landlord‑‑Joint ownership of such landlord in that shop to extent of 1/12 share, held, would not bar his filing of evictioc application against tenant for eviction of godown on ground of personal bona fide requirement.

‑‑‑Ss. 9 & 15‑‑Increase in rent of premises‑‑Justification for‑‑Premises in dispute having been given on nominal rent, 10 years prior to institution of eviction application against tenant‑‑Increase in such rent during period of 10 years, would not appear to be excessive or oppressive looking to general rise in price of commodities as well as rent.

‑‑S. 15(2)(ii)‑‑Ejectment of tenant‑‑Personal bona fide requirement‑ Proof‑‑Mere fact that landlord who was running business in rented shop, closed that shop for 2 or 3 hours daily and that he was not paying income‑tax, held, would not mean that his business had flopped and he was disentitled to get disputed godown vacated on ground of personal requirement.

‑‑‑S. 15(2)(ii)‑‑Personal bona fide requirement‑‑Proof‑‑In ejectment cases, instituted on ground of personal requirement, evidence of parties themselves, held, would be material as person requiring premises for his personal need would be best person to know about his personal requirements.

‑‑‑S. 15(2)(ii)‑‑Personal bona fide requirement‑‑Proof‑‑Evidence on record produced by landlord as to his personal requirement appeared to be more consistent, truthful and credible‑‑Assertion of landlord that he required premises in good faith for his own personal requirement, held, was proved in circumstances.

Muhammad Ismail v. Asghari Khanum N L R 1980 Civil Lah. 558; Fatima Bibi v . Jamilur Rehman P L D 1982 Quetta 7; Sultan Press Ltd. v. Muhammad Hasan P L D 1985 Kar. 624; 1986 C L C 726 and Samiullah v. Mst. Begum Jahan 1986 C L C 2628 ref.

M.A. Rashid for Appellant.

Wahid Bux Baloch for Respondent.

Date of hearing: 27th October, 1986.

This First Rent Appeal has been filed against the order of learned Senior Civil Judge and Rent Controller Jacobabad, dated 28^th January, 1985 whereby he dismissed the eviction application filed by the appellant /landlord.

The facts leading to this appeal in brief are, that respondent is admittedly tenant of the appellant with respect to a godown on the ground floor of building on C.S. No. 86 Ward Jacobabad on monthly rent of Rs.120. The appellant filed eviction application under section 15 of Sind Rented Premises Ordinance, 1979 for eviction of respondent on the ground, that he required the demised premises for his personal bona fide use. He alleged to have served notice upon the respondent to this effect. His application was, however, dismissed by the impugned judgment.

The respondent contested the application raising number of grounds. He contended, that the appellant did not require the premises for his bona fide personal requirement and further that he had not received the notice. The learned Rent Controller framed the following issues:‑‑

(1) Whether the applicant requires the disputed godown for his personal use and occupation in good faith

(2) Whether the legal notice was served upon the opponent by the applicant

I have heard the learned counsel for the parties and also perused the record and proceedings of the case.

While dealing with issue No. 2, the learned Rent Controller observed that it is proved, that the applicant has served the notice (Exh. 18) upon the opponent, but as argued by the learned counsel for the opponent, it is not helpful to the applicant, as there is no provision in Sind Rented Premises Ordinance, 1979 for non‑compliance of such notice. The learned Rent Controller was right, that notice was not required for filing an application for eviction under section 15 of the Ordinance, but the finding on this issue is helpful in one respect viz. as to which party is speaking the truth. The appellant had stated in his rent application as well as deposition, that he had served upon the respondent a legal notice, dated 26‑5‑1982 under registered cover A . D . receipt. He had also produced a copy of the notice as Exh. 18 alongwith registration receipt and A.D. receipt. The respondent in his deposition had denied the receipt of the notice and when he was confronted with his signature on the acknowledgement receipt Exh. 20, he denied the signature to be his own on the ground, that his signature was in English, whereas he does not sign in English. However, when he was confronted with his Vakalatnama Exh. 6 and adjournment application Exh. 5, he admitted to have signed the same in English. Apart from producing these documents, the appellant had also examined one P.W. Amanullah, who is a postman. He states that he delivered a registered letter to the respondent on 30‑5‑1982 and he signed the acknowledgement receipt Exh. 20. 1 have already reproduced the finding of the learned trial Court on this issue and I agree with his finding.

The appellant in his eviction application as well as deposition had stated, that he is running business of selling bush strings (Baan) etc. in a rented shop in Petti Bazar, Jacobabad, which shop is too small to fulfil his requirements of storage etc. of the relevant stock. He, therefore, required the said godown in good faith bona fidely for his personal use and occupation. In the notice Exh. 18 also it is stated that he runs his business of Baan etc. in the rented shop, which was too small to fulfil his requirements of storage etc. and, therefore, required in good faith the godown for his personal use and occupation as godown. His witness Noor Ahmed states, thaI the applicant is running business of selling Baan and ancillary things in a shop in Petti Bazar, Jacobabad, which is too small for the business of the applicant. As such the applicant always complained to him, that he was exercising great difficulty for want of proper storage facilities and he was suffering losses. He further states, that he knows that the requirement of the appellant for godown was bona fide and in good faith. P.W. Syed Shoukat Ali has also deposed in more or less same words. Thus, it will be seen that the stand of the appellant as to his requirement of the godown has always been consistent.

The respondent, however, in his deposition states, that the appellant does not require the premises in good faith, but he wants to increase the rent. He further states, that the appellant has another property viz. shop on C.S. No. 2/413/1. He has produced the extract of that shop as Exh. 44. It may be pointed, that no question has been put in the cross‑examination to the appellant as to his ownership or possession of any other shop. However, the extract of the shop produced by the respondent shows that there are 12 partners in this property including the present appellant. The respondent in his cross‑examination has admitted, that this Shop No. 413/1 is jointly owned by the appellant with 11 others and that brother of the appellant is carrying on business in this shop. Thus, admittedly the appellant is not in physical possession of the shop and his joint ownership in the shop to the extent of 1/12th share would not bar his filing of the application under section 15 of the Sind Rented Premises Ordinance for eviction of the godown for his personal bona fide requirement.

It is contended, that the appellant wants to increase the rent, Admittedly the godown in question was purchased by the appellant about 10 years prior to institution of eviction application. Admittedly at that time rent of godown was Rs.35 per month, which was subsequently raised to Rs.100 and then to Rs.120. Looking to the general rise in the prices of commodities as well as the rent, this increase in the rent during the period of 10 years does not appear to be excessive or oppressive. It is not alleged, that the appellant had made any attempt by way of filing eviction application or by applying to Martial Law authorities to eject the respondent. Rather the respondent himself admits to have filed a suit for injunction against the appellant which was compromised under which the rent was raised to Rs.100 per month.

It is further contended, that the appellant has no business. Rather his business is flop and, therefore, he does not require the godown. However, the only question put to the appellant in cross examination is that he does not pay any income‑tax, which he has admitted. In the cross‑examination the respondent has stated, that hell) says that business of the appellant has flopped, because he closes his shop daily for 2‑3 hours and there is little stock in the shop of the appellant. He has denied the suggestion, that the business of the appellant is flourishing. The mere fact, that the shopkeeper closes his shop for 2 or 3 hours and that he is not paying income‑tax would not mean that his business has flopped. There is no evidence that even the respondent is paying any income‑tax, when he has two godowns including the one in dispute. The admission of the respondent, that the appellant closes shop for 2 or 3 hours in a day impliedly shows, that the appellant keeps his shop open for the rest of the day and carries on business there.

It is not disputed, that the appellant has no other godown and that the shop in which he is presently carrying on business is a rented shop. I have already pointed, that there is joint ownership of one other shop to the extent of 1/12th share, which would not satisfy his needs nor can it be a bar against seeking eviction on the ground of personal requirement. ,

It is argued, that the witnesses of the appellant are interested and, therefore, no reliance can be placed on them. The same argument can be extended to one Lalchand, witness of the respondent. However, in such cases it will be the evidence of the parties themselves which is material. A person would be the best person to know his personal requirement.

I will now proceed to examine the case‑law relied upon by the parties. In case of Hassan Khan v. Mrs. Munawar Begum P L D 1976 Kar. 832 a learned Single Judge of this Court has held:‑‑

"The assertion or claim on oath by the landlord, that he required the premises for his personal use, should be accepted by the Rent Controller as bona fide, if such claim or assertion, although by itself may be insufficient, yet is consistent with his averments in the application and is not shaken in cross‑examination or disproved in rebuttal."

In case of Muhammad Ismail v. Asghari Khanum N L R 1980 Civil Lah. 558 it was held:

"The deposition made by the landlady on oath that the house will be occupied by her cannot be brushed aside merely on the basis of supposition about which landlady was not cross‑examined."

In case of Fatima Bibi v . Jamilur Rehman P L D 1982 Quetta 7 a learned Single Judge of Baluchistan High Court held that bare statement of landlord was sufficient to establish his personal requirement of a house. In case of Sultan Press Ltd. v. Muhammad Hasan P L D 1985 Kar. 624 a learned Single Judge of this Court has examined the expression "requires in good faith" in great detail and has held:‑‑

"From the phraseology used in clause (vii) of subsection (2) of section 15 of the said Ordinance, it is further clear, that the landlord has to prove that he requires the premises in good faith. The expression 'requires in good faith' has been considered by superior Courts on several occasions. Broadly stated, mere wish, convenience, whim or fancy of the landlord would not be enough to show that the landlord 'requires the premises in good faith'. The landlord must allege and prove certain circumstances or facts which go to prove his requirement. The law does not require a landlord to establish need or absolute requirement without which he shall have no shelter over his head. What is meant by "requires in good faith" is that the landlord requires the premises for his reasonable needs and that he is not seeking eviction on the pretext of requiring additional accommodation with an oblique motive of realising some extraneous purpose. The term 'requires' means that there must be an element of need before a landlord can be said to require premises for his own use and occupy the premises. What is necessary is that he should need them for his own use and occupation. The need has to be reasonable and bona fide. The onus of proof of this is certainly on the landlord. Although the word 'reasonable' does not appear in the Ordinance, the question of reasonableness is relevant in deciding the bona fide of the landlord. Gross unreasonableness may in proper circumstances lead the Controller to reach a conclusion, that the landlord's requirement is not in good faith. Therefore, while deciding the question of good faith, the reasonableness of the need or requirement is relevant. Full effect will have to be given to the expression used in the clause, namely, "requires in good faith". The words 'good faith' mean honestly and not actuated by bad faith or oblique motive. Mere wish or intention of the landlord is not sufficient to give him a right to evict the tenant. As already observed the Ordinance is promulgated with the avowed object of protecting tenants against unreasonable eviction and at the same time it makes a provision that the landlords will be entitled to get the possession of their premises on the grounds enumerated therein. One of such grounds is that a landlord requires the premises in good faith for his own occupation. Subsection (2) of section 15 further enjoins a duty upon the Controller to enquire into the requirement of the landlord and if on enquiry the Controller is satisfied that the requirement of the landlord will be met by occupation of the premises, then he has to pass an order of eviction. Therefore, all the relevant factors will have to be objectively considered before such a question is decided by the Controller.

" In 1986 C L C 726 it is held that onus to prove that premises were required in good faith for bona fide use of landlady or for her son, heavily lay on the landlady. In case of Samiullah v. Mst. Begum Jahan 1986 C L C 2628 it is held that the good faith was to be proved by clear and definite evidence which could inspire confidence.

Judging the evidence produced by parties in view of the law laid down in the above cases it is seen that the evidence of appellant is straightforward and consistent. He has not tried to hide any facts. In this notice, in his application, in his statement, he has been consistent about his requirements. He has truthfully stated, that he is in possession of a shop, where he is carrying on business, but that shop is not sufficient for his needs and therefore, he requires godown in dispute. His witnesses have also supported him.

As against that the respondent has been making all sorts of allegations and insinuations. His contention that appellant is in possession of another property is contradicted by his own admissions as pointed above. His evidence, that the business of the appellant has flopped also stands self contradicted. We have already seen that even with ragard to minor matter viz. service of notice, he has not come out with truth. In the cross‑examination of the appellant, it is suggested not denied that he wants to increase the rent to Rs.300 and that he wants huge Pugree from the respondent, while in his cross‑examination the respondent himself admits that it was not a fact, that the applicant/ appellant had demanded good will from him. He alleges that the appellant wants to sell away the property, but admits in the cross‑examination, that neither the appellant had offered him godown for sale, nor does he know the name of the broker, through whom the appellant wants to sell the godown.

Considering the evidence produced by the parties in juxtaposition, the evidence produced by the appellant as to his personal requirement appears to be more consistent and truthful and credible. No doubt the burden to prove is upon the appellant with regard to his personal requirement in good faith but as observed in the case of Sultan Press, the law does not require him to establish the need or absolute requirement without which he shall have no shelter over head but what is required is that his requirement of premises should be for his reasonable needs. It cannot be said that the shopkeeper does not reasonably require the godown for storing his goods or for the purpose of expanding his business.

I have also carefully considered the reasons given by the learned Rent Controller for disbelieving the appellant as to his personal requirement and need and I do not find the reasons, cogent.

Considering all the facts and law discussed above in my opinion the appellant has been able to prove that he requires the demised premises in good faith for his own personal requirement. I, therefore, allow the appeal, set aside the impugned order and order the eviction of the respondent from the demised godown. However, as it is business premises the respondent is given six months time to vacate the premises in order to make alternate arrangement for himself.

H. B. T. Appeal allowed.

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