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First Rent Appeal No.961 of 1984, decided on 31st May, 1987.

--Ss.15(2) (vii) & 21(1)--Ejectment of tenant--Plea of personal bona fide requirement--Proof--No inconsistency found between averments made by landlord in his ejectment application filed against tenant on ground of personal bona fide requirement and affidavit-in-evidence filed by him in Court--Tenant failed to produce any substantial evidence which could go to weaken case of landlord with regard to requirement--Plea of personal bona fide requirement raised by landlord, held, was proved in circumstances.

S. Sibghatullah Hamid for Appellant.

Sultan Ahmed Shaikh for Respondent.

Date of hearing: 31st May, 1987.

This First Rent Appeal under Section 21 of the Sind Rented Premises Ordinance, 1979 (hereinafter called the Ordinance) has been brought at the instance of the landlord against the order of the IXth Sr. Civil Judge/ASJ and R.C. Karachi, passed in Rent Case No.2364/79, dated 4-9-1984 whereby he dismissed the ejectment application moved by the applicant on the ground of his personal bona fide need of the demised shop.

2. The facts briefly stated giving rise to this appeal are these. The appellant is the owner/landlord of shop No.4 of the building standing on plot No. C-35, Block 13, Qasre Zakria, Federal 'B' Area, Karachi, of which the respondent is his tenant on a monthly rent of Rs.170/- The respondent had come in possession of the disputed shop premises by virtue of an agreement of tenancy, dated 1-5-1978 executed for a period of 11 months which expired on 1-4-1979. The appellant filed an application under section 13(6) of the West Pakistan Urban Rent Restriction Ordinance, 1979, on 7-5-1979 on the ground of personal requirement. The appellant mentioned in the said application that he is the layman and a patient of fatal disease and as such was unable to do any outdoor duty and hence had decided to run his own business in order to earn his livelihood. The respondent was requested to vacate the premises but he failed to do so and hence the ejectement application was presented on 7-5-1979. The respondent in his written statement denied all the allegations made in the application. He averred that he had come occupation of the shop premises in question in September 1974 on a monthly rent Rs.135/- which was, later on, raised to Rs.150/- p.m. The appellant had further demanded the enhancement of rent to Rs.170/- per month to which he (the respondent) did not agree. The applicant then refused to accept the rent and consequently he started depositing the same in Court through Misc. Rent Case No.768/79. It was denied that the appellant required the shop for his personal use. The application was claimed to have been filed as the respondent had declined to Komi enhance the rent.

3. In support of his case the appellant filed his own affidavit-in- evidence and he was subjected to cross-examination. The respondent, on the other hand, filed his own affidavit-in-evidence as well as the affidavit-in-evidence of one Hafizur Rehman, the tenant of shops Nos.2 and 3 of the same building in which the premises of the respondent are situated. The learned Rent Controller framed the following issues:--

"(1) Whether the opponent has promised to vacate the case premises on the retirement of the applicant

(2) Whether the case premises is required by the applicant for his personal bona fide use in good faith

(3) What should the order be."

4. By his impugned order the learned Rent Controller, as already stated, answered both the above-noted issues Nos.1 and 2 in the negative and, consequently, dismissed the ejectment application with no order as to costs.

5. The learned counsel for the appellant vehemently urged that the appellants had in his affidavit-in-evidence specifically deposed that the disputed premises were required by him for his personal bona fide use yet it has not been controverted by the respondent in any manner.

6. Mr. Sultan Ahmed Shaikh, learned counsel for the respondent, submitted that the appellant in support of his case has only filed his own affidavit-in-evidence has not examined any other witness, whereas the respondent besides examining himself has also adduced the evidence of Hafizur Rahman who was the tenant of appellant in respect of other shop. The said witness of the respondent has supported him in his plea that the appellant wanted to enhance the rent as it was his practice in the case of all other tenants. The counsel further submitted that there were two points framed by the trial Court on the basis of the averments made in the application as well as in the affidavit filed on behalf of the applicant. The first being that the respondent had promised to vacate the disputed premises on the appellant's retirement and the secondly that he required the said premises for his own personal bona fide requirement. The counsel submitted that in so far as the first point is concerned there is absolutely no evidence worth relying on the basis of which it can be held that the respondent had promised to vacate the shop on the retirement of the client. In so far as the other point is concerned, the counsel maintained that the appellant had miserably failed to establish his own bona fide need. He drew my attention to para. 10 of the respondent's affidavit-in- evidence wherein he had specifically stated that the appellant had enhanced the rent of the shops Nos.2 and 3 gradually from 1978 to 1981 from Rs.250/- per month. The next contention of the learned counsel for the respondent was that there are contradiction in the pleadings and the evidence of the appellant inasmuch as he has at one place stated that he was suffering from fatal disease and at another place he has disclosed his desired to establish personal business which is a lidious job. He submitted that his case is not that he wanted to step into the shoes of some person already established in the business but he wanted to start the business afresh thereby engaging himself more deeply in the successful establishment of a new business which was not possible for a person suffering from the fatal disease as alleged by the appellant himself. He, therefore, contended that the trial Court's finding in this behalf is justified and the appellant having failed to discharge the onus which was primarily upon him, the appeal is liable to be dismissed. He also drew my attention to the fact that the respondent in his cross -examination had at one place stated that the son of the respondent was not his tenant but immediately thereafter he made a categorical statement that three years prior the son of the respondent was his tenant .

7. I have given my earnest considerations to the submissions made at the bar and have also carefully perused the evidence of the parties with the assistance of the learned counsel for the parties and I am of the opinion that the learned trial Court has erred in dismissing the application of the applicant.

8. The appellant has been consistent in his stand inasmuch as he pleaded in his application that he wanted the premises in question for his own bona fide need for the purposes of establishing the business of his own inasmuch as he was not physically fit to do outdoor work. He adhered to this stand in his affidavit as well No effort was made by the respondent to dislodge his claim by bringing any material on record or suggesting any question to him with regard to his financial inability save that of his falling health. No effort was even made to demolish the appellant's stand by adducing any other substantial evidence which could go to weaken the case of the appellant with regard to his alleged bona fide need of the shop in question. The only plea raised in the writ on statement and in the cross- examination of the appellant and also through the evidence of the respondent was that the appellant wanted to enhance the rent of the premises and since the respondent did not agree to his suggestion he had filed ejectment application mala fidely. In this behalf, I would like to point out that in the written statement the appellant had simply stated that he wanted to raise the rent further from Rs.170/ p. m. and but he has not stated as to what extent the amount was sought to be enhanced. If there was any demand of the appellant for enhancement of rent he must have told the respondent about the rent which he wanted to charge. The omission to mention this aspect of the matter itself shows the weakness of the respondent's case. Besides the fact that the landlord had enhanced the rent of other tenants or he had in fact enhanced the rent of Hafizur Rehman, who was his tenant for some years would not conclusively prove that the respondent was asked to pay more rent. It has been brought on record by the learned counsel for the appellant that an ejectment application being rent case No.3002/82 was filed for eviction of Hafizur Rehman which was allowed by the learned Rent Controller. The said tenant also failed in appeal brought by him vide F.R.A. No.743/83 as it was dismissed by this Court vide order, dated 15-4-1986.

9. Mr. S.S. Hamid, learned counsel for the appellant further confirmed after getting instructions from his client, who was present in Court that he had taken over the possession of the said shop. In this view of the matter the evidence given by Hafizur Rehman, a tenant of the appellant at one time would not be given any weight. Moreover, he has not stated in his affidavit-in-evidence that the appellant demanded higher rent from the respondent in his presence. He has therefore, not supported the case of the respondent even otherwise. The affidavit-in-evidence of the respondent itself also does not give the amount by which the rent was sought to be enhanced. I am, therefore, not influenced by the case as set up by the respondent with regard to the mala fide nature of proceedings having been adopted by the appellant.

10. The only other aspect of the matter which requires consideration is whether having said that the appellant had retired from private service and that he was suffering from fatal disease, could it still be said that the appellant required the premises for his own personal bona fide use for doing some business therein. In this connection the learned Rent Controller has observed that the appellant had neither produced the medical certificate in support of his illness nor he has produced the retirement certificate from service from the given date, namely 1-10-1978 and then he has jumped to the conclusion that the applicant does not require the shop for himself. The learned Rent Controller seems to have been influenced by the fact, as he has stated in the impugned order "that the dispute between the applicant and the opponent has arisen on the rate of rent because admittedly the applicant is owning other shops and those shops excepting the opponent have increased the rent as has been admitted by the applicant in his above-noted cross-examination", without further specifically holding that there was a demand of rent of the disputed shop. Since I have already held in the foregoing paragraph that the respondent has failed to establish that there was a demand of enhancement of rent from him, the case of mala fide as sought to be made out by him against the appellant does not stand proved.

11. Under the aforesaid facts and circumstances of the case I do not find any reason to disbelieve the statement of the appellant with regard to his personal bona fide need of the shop in question for carrying out some business therein.

The upshot of the above discussion is that the appeal is allowed and the impugned order is set aside. The parties shall, however, bear their own costs. I would, however, allow four months time to the applicant to hand over the vacant possession of the premises subject to his paying the agreed monthly rent at the rate of Rs.170/ per month.

H.B.T./J-26/ K.

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