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First Rent Appeal No. 22 of 1986, decided on 19th May, 1987.

---Ss.14 & 21--Eviction on ground of retirement of landlord- Requirements--Where eviction of tenant was sought under S.14 on ground of retirement of landlord to start specific business of Medical. Store in disputed premises, finding of Rent Controller that landlord should have necessarily obtained permission from Health Department for starting such business prior to seeking ejectment of tenant, held, was without any basis.

---Ss .14 & 21--Eviction on ground of retirement of landlord--In proceedings under S.14 Rent Controller, held, could not hold inquiry in genuineness of demand of landlord for premises, but had only to see that landlord had fulfilled conditions mentioned in that section.

Syed Israr Alam v. S.M.Husain 1983 C L C 468; M.S.Baroba v. Manzoor Ahmed P L D 1986 Kar.40 and P L D 1986 Kar.407 ref.

---Ss.14 & 21--Eviction on ground of retirement of landlord--Evidently -there being no other shop in building of landlord except shop in dispute and premises previously got vacated by landlord in that building being not commercial but residential or a covered verandah, nature of vacated premises irrespective of its use, held, would not disentitle landlord to seek eviction of tenant where landlord had established his need to start business therein.

Akhtar Hussain for Appellant.

Mirza Abdur Rasheed for Respondent.

Date of hearing: 23rd February, 1987.

This Appeal is, directed against the order dated 12-12-1985 passed by the IVth Senior Civil Judge/Rent Controller, Karachi (West) whereby he dismissed the eviction application filed by the appellant.

The facts leading to the filing of the above appeal are that the appellant is owner/landlord of building on plot No.3-G-10/36, Nazimabad, Karachi and the respondent is the tenant of. the appellant in respect of shop premises on ground floor of the said building at the monthly rent of Rs.200. The appellant filed an eviction application No.2637/84 against the respondent a/s 14 of the Sind Rented Premises Ordinance, 1979, averring therein that after completing the age of 58 years he was retired in the year 1974 and he attained the age of 60 years in 1974. He served notice a/s 14(1) of the Sind Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance) and the respondent did not vacate the premises hence he filed this eviction application. The respondent resisted the eviction application. The eviction application was contested, firstly on the ground that the application was barred under subsection (2) of Section 14 of the Ordinance and secondly Shabir Ahmed was collecting rent in the capacity of landlord. The appellant filed his own affidavit-in-evidence in support of the eviction application. The respondent filed his own affidavit-in-evidence. They were cross-examined by the learned counsel for the respective parties. The Controller dismissed the eviction application. The instant appeal is against the said dismissal order.

The learned counsel appearing in support of the appeal ha,, sought to assail the finding of the Controller on the reasoning that the Controller has misdirected himself in law with regard to the fact that the appellant has not obtained any permission from the Health Department for starting business of medical store and the appellant has not disclosed the specific reasons for the need of the shop in question.

The above finding of the Controller is based on a decision of Single Judge of this Court in the case of Syed Israr Alam v. S.M. Husain 1983 C L C 468, wherein it was held that the landlord has to prove bona fide requirement. A Division of this Court in the case of M.S.Baroba v. Manzoor Ahmed P L D 1986 Kar.40 held that condition of good faith or bona fide requirement, is not to be looked into, but the Controller has to see that the landlord fulfils the conditions mentioned in Section 14 of the Ordinance. This decision of Single Judge is no longer a good law in view of decision in P L D 1986 Kar.407.

The other finding is that the appellant has not obtained any permission from the Ministry of Health. This finding is without any basis. It is difficult to imagine how the appellant could be expected to obtain permission from the health department unless there was a reasonable prospect of his being able to obtain possession of the shop in dispute in the near future. It is common but unfortunate failing of our judicial system that a litigation takes an inordinately long time in reaching a final conclusion and then also it is uncertain as to how it will end and with what result and unless the appellant could be reasonably sure that he would within a short time be able to obtain possession of the shop in question and establish a medical store, it would be too much to expect from him that he should make preparation for establishing a store. Indeed, from a commercial and practical point of view, it would be foolish on his part to obtain necessary permission and/or to make arrangements for investment of capital when he would not know whether he would at all be 'able to get possession of the shop in dispute.

The other finding of the Controller that the appellant has not disclosed the specific reasons for the need of the shop in dispute is also against the law. The Controller has not applied his mind to the facts of the case. It is well-settled legal position that in proceedings under section 14 of the Ordinance the Controller can not hold enquiry in the genuineness of the demand of the landlord for the premises. It is not necessary for him to disclose the specific reasons for the need of the premises. The only scope of enquiry before the Controller in proceedings u/s 14 of the Ordinance are set out in detail in the case of M . S . Baroba already referred to in the earlier part of this judgment. In view of the above legal position the Controller should have allowed the application after having reached the conclusion that the applicant /appellant is a retired person and reached age of 60 years and the application was maintainable.

Mr. Mirza Abdul Rashid the learned counsel for the respondent has submitted that the application was not maintainable and it was hit by subsection (2) of section 14 of the Ordinance.

The appellant averred in his application that he is owner of the building wherein the shop in dispute is situated.

The respondent stated in Para 4 of the written statement that the respondent is in occupation of sufficient accommodation (a) four rooms and verandah on the ground floor, (b) four rooms and open accommodation on the first floor, and (c) one big room and open roof on the 2nd floor. The respondent contended that one shop was rented out to some one and the same got vacated by the tenant and the same is in his occupation.

The appellant stated in para-3 of his affidavit-in-evidence that there is only one shop on the ground floor and in support of his statement he produced order of Excise and Taxation Officer. The appellant denied in his affidavit the allegation of other shop in his occupation and stated that there is only one shop which is in dispute.

The appellant admitted in his cross-examination that Chaman used to sell milk in a premises but that premises is not a shop but a verandah which is in his possession.

As against the above evidence the respondent repeated that the appellant is in possession of four rooms and a verandah on ground floor. The respondent stated in Para 14 of the affidavit-in- evidence that "the applicant had rented out one shop for milk and one portion for plastic Chappal and the applicant got the same vacated but never started his business. The respondent denied the suggestion that the milk man used to sit temporarily in verandah but voluntarily said that "milk man was the tenant of the applicant for 14 years in a shop". The respondent denied the suggestion in cross-examination that there is only one shop. The respondent to a suggestion in cross-examination replied that the appellant would relet it out on higher pugree after his eviction.

I have perused the order of the Excise and Taxation Officer and the evidence adduced by both the parties. The position that emerges from the evidence is that there is only one shop in the building. The premises which wee let out to Chaman were not a commercial premises but residential premises or a covered veridah. There is no cogent evidence on record from which it can be inferred that the premises which were with Chaman milkman were commercial or shop. In the circumstances, the nature of the property irrespective C of its use (Chaman for selling milk) could not be made a factor decisive of the entitlement of the appellant to seek eviction. His need is established and he is not in possession of any shop to disentitled himself a/s 14(2).

For the foregoing reasons I accept this appeal, set aside order dated 12-12-1985 of the Controller. The eviction application is granted as prayed. However, I allow the respondent to hand over vacant possession of the shop in dispute within four months. In the circumstances of the case the parties shall bear their own costs.

H. B. T./N-53/K Appeal accepted.

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