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First Rent Appeal No.29 of 1986, decided on 7th July, 1987.

---S.14--Bona fide need of landlord not to be probed into--Personal use--Need of son of widowed landlady is need for personal use of landlady.

--S.14--Limitation for filing application under S.14--No specified time laid down in S.14 for filing application.

1982 C L C 580; 1982 C L C 1241; 1985 C L C 882 and P L D 1982 Kar. 406 ref.

--S.14--Contention that landlady/applicant had already got an ejectment order against tenant of another shop in same building on similar ground (certified copy of order of High Court in that case placed on record), second application by her for possession of another shop was not maintainable--Held: In view of clear admission by tenant in cross-examination "at present the applicant is not in possession of any shop" the landlady was not disentitled to eviction of tenant.

K.M.Nadeem for Appellant.

M.Ismail Kassim for Respondent.

Date of hearing: 24th March, 1987.

This appeal under section 21 of the Sind Rented Premises Ordinance, 1979 (hereinafter called the "Ordinance") is from the order of the VIth Senior Civil Judge/A.S.J./R.C. West, Karachi, whereby he dismissed the application under section 14 of the Ordinance filed by the appellant for eviction of the respondent.

The case as set up by the appellant in the application under section 14 of the Ordinance was that recently her husband has died and 'she had thus lost her means of subsistence. She has a son and a daughter of marriageable age. She had a keen and pressing need to augment her income by starting a store of household articles provisions and as such she required the rented premises, namely, a shop situated on a portion of plot bearing No.979/Block No-3, Liaquatabad, Karachi, which was in occupation of the respondent for her own use and occupation. She further averred in the application that she did not own any other property any where in Pakistan except the property in question. This application was presented on 23-12-1982.

The respondent /tenant filed his written statement stating that the appellant's husband had died in June, 1979 and not recently alleged by her, that her son was of a tender age and was not in position to run the business and/or make appropriate use of the shop in his possession. The appellant was sufficiently an old lady and was not even able to walk and/or to discharge her ordinary pursuits of life independently due to paralysis. It was thus denied that the shop was required by the appellant for her personal bona fide use and occupation. It was further averred in the statement that the appellant had recently got an ejectment order against the tenant of the adjoining shop in Rent Case No.255/74 on the similar ground and hence the application was not maintainable at law. Moreover, the application was stated to have been presented with, a mala fide intention of letting it out to other persons on higher rent and pagri and also that the appellant had got many other properties of her own as well as the properties left by her husband which she had suppressed mala fidely and with ulteriar motive.

On the pleadings, the Rent Controller framed the following points for determination:-

"(1) Whether the applicant needs the shop in question for her personal use under section 14 of the Sind Rented Premises Ordinance, 1979.

(2) What should the decree be

He decided the first above-noted question, in the negative and consequently dismissed the application with no order as to costs by his order dated 17-12-1985.

I have heard the learned counsel for the parties. Learned counsel for the appellant has submitted that in terms of section 14 of the Ordinance the bona fide need of the appellant is not to be probed into inasmuch as only the expression "personal use" has been used in this section. Even if the applicant in a case under section 14 of the Ordinance fails to prove his or her bona fide need it could not be made a ground for denial of the relief. He also contended that there was no provision in law laying down that the application for eviction under section 14 is to be made within a specified time or within a short period. In support of his contention he placed reliance on the decisions reported in 1982 C L C 580 and 1982 C L C 1241. He then contended that even otherwise a tenant has been provided sufficient protection under section 15-A of the Ordinance against his eviction resulting from an application under section 14 if the appellant uses the rented premises in question for a purpose other than personal use. The learned counsel for the respondent, on the other hand submitted that the application was basically not maintainable inasmuch as the premises are said to be required for the use of the son-in-law which is trot permissible under the Ordinance, that the requirement shown in the application was not adhered to but it was developed and improved at the time of evidence, that the conduct of the appellant to get one shop on the ground of reconstruction and the other for personal use itself shows the mala fide. This inconsistency in stand shows that the appellant does not require the shop for her personal use but for the purpose of letting it out on higher rent/pagri etc. The evidence on behalf of the appellant does not inspire confidence. He urged that the appellant is admittedly a Pardanasheen lady as has been admitted by her own son and attorney in his deposition. The son he emphasised, is also of tender age and as such he was not in a position to run the shop himself. Moreover, he has categorically stated that his brother-in-law shall also be benefited by the shop as he will look after the business during the college time. The counsel therefore urged with vehemence that unless the appellant shows and proves her own necessity for the shop in question she cannot be allowed to evict the respondent. In this connection, he placed reliance on a decision reported in 1983 C L C 468. The counsel then contended that another ejectment application was filed by the appellant against one Abdul Malik, a tenant of another shop and an ejectment order has already been passed in her favour. He placed before me a certified copy of the order of this Court passed in First Rent Appeal No.202 of 1981 in the case "Abdul Malik v. Mst. Saeeda Khatoon" to show that the tenant's appeal also failed and he (the tenant in that appeal) was directed to hand over the possession of the. disputed premises to the respondent on or before 31-12-1984. His next contention was that the failure to file application within six months after her becoming a widow was tentamount to waiver arid it reflected adversely on her bona fide. In this connection he cited two authorities reported in 1985 C L C 882 and P L D 1982 Kar. 406. The counsel also submitted that the application was not signed by the -applicant inasmuch as on the power of attorney a thumb-impression was affixed and it is admitted by appellant's son that the application and the vakalatnama are not signed by her. Lastly the counsel submitted that in the application it has been stated very emphatically that the appellant does not own any other properties whereas it has come in evidence that she has another house and hence it shows that the appellant is not honest in her version.

Upon examination of the relevant record and after giving my earnest consideration to the arguments advanced, I have reached the conclusion that the appeal must succeed for the following reasons.

The appellant admittedly belongs to the class of persons enumerated in. Section 14 of the Ordinance. Her husband died on 1-7-1979. She filed eviction application on 23-12-1982 on the solitary ground of personal use of the premises in question. In the application it was specifically pleaded that she needs the shop in question for her requirement to start a store of household articles/ provisions in the shop in question. The requisite statutory notice was also duly served. It is also an admitted fact on record that the appellant's son who was to run the non-templated business in the shop in question was, at the relevant time, a college student in first year. It is further to be noted that the financial capacity of the appellant to set up the proposed business in the shop was not challenged. It is thus evident that the burden of proof which initially lay upon the appellant was duly discharged. Now it is to be seen that the respondent has succeeded in demolishing the appellant's case either in cross -examination of her witness or through evidence in rebuttal. The respondents attack on the appellants claim, it may be recapitulated, was tri-dimensional. Firstly, that the appellant being a paralysed old lady was unable to carry on the proposed business herself and that her son was quite young to do any business. Secondly, she had obtained ejectment order in a case filed against another tenant of the shop situated in the same house, vide Rent Case No. 255/74 and hence the ejectment case against the respondent was filed with mala fide intention of letting out the shop in question on higher rent or pugree. And lastly, that she had other properties of her own which she had suppressed mala fidely. In his cross-examination the appellant's son and attorney has stated that during his college hours his brother -in-law will look after the business and that he will also be benefited from the said business. He also accepted the correctness of the suggestion made by the respondent that the appellant has two other shops at Federal 'B' Area. He further admitted that an order of ejectment of the appellant of the other shop in this very building on the ground of .its reconstruction has been passed by the Rent Controller in the abovenoted Rent Case No. 255/74. Replying to a question about his age in cross-examination h2 stated that he was about 18 years old.

On the basis of the above evidence the finding of the learned trial Court that the age of the son of the appellant for whose personal use, the premises were required is about 14-15 years does not appear to be correct. He was, however, admittedly a student of first year and in his statement he has given his age to be 18 years. Any how, if for the sake of arguments, his age is taken to be 14-15 years as held by the learned trial Court then too there will be little justification to hold that a student of first year would not be able to conduct the business of household articles/ provisions proposed to be set up in the shop. I am unable to pursuade myself to agree with the finding of the learned trial Court in this behalf.

It is now to be seen whether on the basis of the statement of the appellant's witness in cross-examination that "after vacation of the premises in question by the opponent my brother-in-law will run the business in the shop from morning to 1-00 p. m. It is a fact that till my return at the shop in question the business will be run by my brother-in-law. By this shop my brother-in-law will also be benefited", would it be possible to hold that the shop is not required for the son but for the son-in-law of the appellant and for that reason the application is not maintainable. The answer to this question would again plainly be in the negative. In order to make the case further clear let us presume that this witness would have deposed that the business proposed be set up will be carried on by him with the assistance of the salaried employees. Would it have justified the rejection of the plea of personal need The answer to this question cannot possibly be in the affirmative. The learned lower Court thus, in my opinion, clearly fell into an error in disregarding the case, as set up in the application and proved through the evidence of the appellant's witness of her personal need to that of the need o. the shop for her son-in-law simply on the basis of the above-reproduced statement of her witness in his cross-examination. The said statement of the appellant's witness, in my view, depicts his honesty and straightforwardness and it makes his evidence all the more confidence inspiring. The above-reproduced statement of the appellant's witness, at best, can be described to be his expectation or desire rather than converting the case of requirement of the shop for his personal use to that of the personal use of his brother-in-law. The time will tell if his expectation or desire turns out to be true or remains the mere wishful thinking. It cannot, however, be made a ground to throw eviction application as being unsustainable in law. Consequently, the order of the learned trial Court in this behalf cannot be sustained.

The only other pertinent aspect which could cause a hindrance in the way of the appellant in availing the benefit of subsection (1) of section 14 of the Ordinance was of her being in occupation of a shop owned by her in any locality. But the decision on this issue too conveniently goes in favour of the appellant in view of the clear and candid admission made by the respondent in cross-examination to the effect "that at present the applicant is not in possession of any shop".

Lastly, a reading of the impugned order gives an impression that the learned trial Court allowed his mind to be influenced by the argument of the respondent's counsel that the need of the appellant of the shop in question was not bona fide because she filed the application for eviction of the respondent after over a period of three years of her becoming a widow. In accepting this contention of the learned counsel for the respondent, the learned Rent Controller, in my opinion, committed an error both of law and fact.

Dealing first with the legal aspect of the matter I would like to point out that in section 14 of the Ordinance the expression used is "needs the building for personal use" whereas in section 15(2)(vii) the expression used is "requires the premises in good faith". This distinction thus makes it absolutely clear that the landlord who falls under any of the categories of persons mentioned in section 14 (1), has not to prove the bona fide requirement of the building inasmuch as, perhaps, the legislature deemed the very fact that a person belongs to any of the class mentioned in that section when approaches the tenant for possession of the land his requirement is bona fide; whereas the proof of the bona fide requirement had been laid a condition precedent for a landlord, who approaches the Rent Controller for eviction of his tenant under section 15 of the Ordinance. The only disqualification attached to a landlord falling under section 14 of the Ordinance has specifically been enacted under subsection (2) of section 14, which lays down:-

"The landlord shall not be entitled to avail the benefit of 'subsection (1)' if he is in occupation of a building owned by him in any locality."

To put it differently, the concept of 'bona fide requirement or need' is irrelevant in a case, which is covered by section 14 whereas it is essentially to be proved in a case falling under section 15 of the Ordinance.

Now coming to the factual aspect of the case it may be observed that in the instant case the filing of the eviction application after a lapse of more than three years from the date of death of the deceased husband of the appellant shows her bona fide rather than mala fide inasmuch as at the time of the death of her husband neither she was physically capable of doing the business on account of her illness as stated above, and so also his son being of a tender age, was then unable to do any business. Upon his attaining the age when he could carry on the business the application was presented. It is thus difficult to hold even on the basis of this case that the action of the appellant in presenting the application so late was otherwise than bona fide. In my opinion, it is a case which strongly demonstrate the reason which led the legislature, perhaps to substitute the original proviso to section 14(1) of the Ordinance which prescribed a period for making an application by the persons falling under section 14(1) vide Sind Ordinance No. XII/80. Lastly, I would in the passing, like to overrule the objection of the learned counsel for the respondent that the application for eviction was not signed by the applicant. Firstly, this defect could be removed by getting the application signed by the applicant herself, if it was found to have not been duly signed by her and, secondly, upon comparison of her signatures on the memorandum of this appeal as well as on the power of Mr. K.A. Nadeem, to which no objection has been taken by the respondents counsel, with that other signatures on the application 1 find that the objection is without substance and that the evidence of the son of the appellant in this behalf was of little consequence.

In the result, accepting this appeal I hereby set aside the order of the trial Court and allow the application of the appellant with a direction to the respondent to hand over the vacant and peaceful possession of the premises in question to the appellant within one month of this order, failing which the writ of possession should be issued by the Rent Controller according to law.

K.B.A. /S-75/ K Appeal accepted

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