Find a Lawyer

Frist Rent Appeal No. 72 of 1985, decided on 22nd September, 1986

‑‑‑S. 15 (2) (vii)‑‑Business premises‑‑Personal bona fide requirement‑ Burden to prove‑‑Burden of proof that landlord required premises in good faith for use of his sons would be on landlord‑‑Landlord would have to satisfy Rent Controller that he required premises in good faith‑‑Mere assertion of landlord that he being landlord had better knowledge of his own requirement would not be sufficient to obtain eviction of tenant.

‑‑‑Preamble & S. 15(2)(vii)‑‑Business premises‑‑Eviction of tenant on ground of personal bona fide requirement‑‑Safeguard provided by Legislature to tenant‑‑Imposition of condition on landlord to satisfy Rent Controller about his personal bona fide requirement in respect of premises having been incorporated by Legislature to safeguard interests of tenant, such safeguard, held, would be more necessary in case of tenant to had established years his business and goodwill in particular place or area‑‑To evict such tenant and to uproot his business which he had established for more than 25 years, burden would lie heavily on landlord to prove his requirement in good faith.‑‑[Burden of proof].

‑‑‑S. 15 (2) (vii)‑‑Business premises‑‑Personal bona fide requirement‑ Burden of proof‑‑Landlord requiring premises on ground of personal requirement, held, would have to prove bona fide of his requirement first, before any burden of proof in rebuttal could be shifted upon tenant‑‑Landlord having failed to discharge such burden weakness of tenant's case, would not help landlord.‑‑[Burden of proof].

M.S. Baroba v. Manzoor Ahmed P L D 1986 Kar. 407 and P L D 1986 Kar. 84 rel.

Kadir Bux for Appellant.

Shabbir Ahmad for Respondent

Date of hearing: 24th August, 1986

This first rent appeal is directed against order of the learned Senior Civil Judge and Rent Controller Sukkur, dated 16‑5‑1985 in Rent Application No. 138 of 1983 whereby ordered eviction of the appellant.

The brief facts leading to this appeal, are that appellant is admittedly tenant of a Shop bearing C.S. No. D‑2.622/4, Shikarpur Road, Sukkur, which was transferred to the respondent by the Settlement authorities. The respondent filed Rent Application No.138 of 1983 seeking ejectment of the appellant on the ground that he required premises for the bona fide need of his sons Muhammad Riaz and Muhammad Ilyas, who were jobless. The appellant resisted this application and raised the pleas that the premises were not required by the respondent for the bona fide need of his sons but he wanted the premises for the purpose of letting it on enhanced rent. He contended that this rent application was filed because the previous application of the respondent was dismissed on 31‑8‑1983. He further contended that the shop bearing C.S. No. D‑622/2 which is in possession of the respondent, has two portions, in one of the portions Muhammad Saleem son of respondent is carrying on the business, while in other portion his other son Muhammad Ilyas is carrying on the business of electricity. He has also, denied that the sons of the respondent are jobless.

On the pleading of the parties the learned Rent Controller framed the following issues:‑‑

1) Whether the premises required by applicant for personal bona fide need of sons of applicant namely Muhammad Ilyas and Muhammad Riaz

(2) What should the order be

The learned Rent Controller found the issues in favour of the respondent and passed the impugned order. Hence this appeal.

The respondent had examined himself and his two sons Muhammad Ilyas and Muhammad Riaz for whose need he required the premises. All three witnesses have stated, that Muhammad Ilyas and Muhammad Riaz are jobless and the premises are required for their bona fide need. The respondent has denied in the cross‑examination that the shop bearing No. 622/2 is in two parts. However, P.W. Muhammad Ilyas has admitted in the cross‑examination, that the shop No. 622/2 has two doors and there is wooden partition in it. Both these witnesses admit, that P.W. Muhammad Ilyas is doing business as electrician, but they do not state as to where he is carrying on the said business.

Similarly applicant/ respondent Muhatqmad Aslam as well as P.W. Muhammad Riaz admit that P.W. Muhammad Riaz is carrying on business as welder in old Sukkur.

The respondent seeks ejectment under section 15(z)(vii) which reads as under:‑‑

"15‑(2) The Controller shall, make an order directing the tenant to put the landlord in possession of the premises within suck period as may be specified in the order, if he is satisfied that

(vii) the landlord requires the premises in good faith for his own occupation or use or for the occupation or use of his spouse or any of his children."

The burden of proof that he requires the demised premises in good faith for the use of his sons was upon the respondent. There can be no doubt, that the person concerned would be in the best knowledge of his own requirement but his mere knowledge of such requirement is A not sufficient to obtain eviction on the said ground but he has to satisfy the Rent Controller that he requires the premises in good faith. This condition has been incorporated by the legislature to safeguard the interests of the tenant. Such safeguard is more necessary in the case of the tenant who has for years established his business and goodwill in a particular place or area. It may be pointed, that in the instant case the appellant was in occupation of the shop in question and was carrying on business in the shop since before 1960, when the shop was transferred by the Settlement authorities to the respondent. To evict such person and to uproot his business which he has established for more then 25 years, the burden lies heavily upon the respondent B to prove his requirement in good faith. It may also be pointed that it is admitted fact, that prior to this rent application, the respondent had filed another rent application bearing No. 1670 of 1972 which was finally dismissed in appeal on 31‑8‑1983. The present rent application was filed on 12‑10‑1983 viz. within two months of the dismissal of the previous application.

Keeping this fact and the back ground in view, we have to see whether the evidence produced by respondent is sufficient to prove that the premises are required by him in good faith for the use of two sons.

The only ground of his requirement shown in the rent application, as well as in the evidence of the three witnesses is that the two sons of the applicant/ respondent are jobless. However, as pointed above, it is admitted that both these sons are carrying on business. Therefore, they cannot be considered to be jobless. If by job the applicant meant paid job, such purpose cannot be served by handing them over the possession of the demised premises. Both of them are admittedly carrying on business. There is no evidence as to where P.W. Muhammad Ilyas is carrying on his business. The suggestion, that he is carrying on business in one portion of the shop No. 622/2 is denied. However, there is absolutely no evidence as to why the premises in which P.W. Muhammad Ilyas and Muhammad Riaz are carrying on their business presently, are not suitable for their business or needs and why they want to shift to demise premises and how both of them can carry on business in the demised premises.

In case of M.S. Baroba v. Manzoorr ahmed P L D 1986 Kar. 407 Division Bench of this Court has observed:::

"In our opinion out of the aforesaid 3 conditions, two of them are also germane to. the requirement of the premises in good faith for a landlord cannot be said t :to require a premises for his personal use in good faith if he t has another building in his occupation or if De rents out the premises after it falls vacant and then applies for eviction of another tenant on the ground of personal requirement, for the I phrase "good faith" means "honestly" and when a person is in occupation of another premises generally speaking he cannot be said to be acting honestly when he asks for yet another premises unless the premises in his occupation is not sufficient for his need."

In P L D 1986 Kar. 84 8 Single Judge of this Court has observed:‑‑

"Mere wish, convenience, whim or f :fancy of landlord, would not be enough to show that landlord "requires premises in good faith". Landlord must prove requirement of premises for reasonable needs end that he was not at seeking eviction on pretext of requiring additional accomudation with oblique motive of realizing some egtraneous purpose . Order of eviction would require satisfactry of Rent Controller that reasonable requirement of landlord would be met by occupation of premises. Eviction order could not on granted on ague allegations in eviction application. Mere ipso exit of landlord that premises were required for accommodating of its senior staff was not enough. Plea of requirement would have to be supported by valid reasons as to how such requirement was genuine.

If we judge the evidence produced by the respondent and keep in view the law laid down in above cases, we find that not an iota of evidence has been reduced to prove that t the premises where two sons namely P.W. Muhammad I1fas and Muhammad Riaz are presently carrying on their business is not sufficient for their needs. The learned Rent Controller appears to have relied upon the mere word of the appellant/ respondent that he required the premises for bona fide need of the and has shifted budden of proof in rebuttal upon the appellant. In my view this is not the correct position of law. The landlord has first to prove the bona fide of his requirement, before any burden of C proof in rebuttal can be shifted upon the tetent. In the present case, the landlord has not discharged the burden n and the weakness if any in the case of the appellant tenant would not help the landlord. I, therefore, allow the appellant and get aside the impugned order of the learned Rent Controller. The parties are however, directed to bear their costs.

H.B.T./5184/K ‑‑‑‑‑ Appeal allowed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.