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First Rent Appeal No.1037 of 1984, decided on 24th May, 1987.

---S.15(vii)--Personal bona fide requirement--Proof--Unrebutted evidence on record showing that landlord seeking eviction of tenant from shop in dispute on ground of personal requirement--Landlord, though a technical expert was not only jobless, bat had no other premises of his own except shop in dispute to start his business- Personal bona fide requirement of landlord was proved in respect of shop.

P L D 1976 Kar.832; P L D 1980 Kar.409; 1980 S M R 593; P L D 1984 Kar.14; P L D 1972 S C 25; 1983 C L C 244; P L D 1983 Kar.639; P L D 1985 Kar.714; P L D 1976 Kar.832; Mohammad Bashir v. Vensimal and 4 others P L D 1980 Kar.409; Mst.Toheed Khanam v. Mohammad Shamshad 1980 S C M R 593; Rajab Ali v. Darius B.Kandawalla and another P L D 1984 Kar.14 and Mst.Khair-un-Nissa and 6 others v. Mohammad Ishaque P L D 1972 S C 25 ref.

Mirza A . Rashid for Appellant.

Mustaffa Lakhani for Respondent.

Date of hearing: 3rd May, 1987.

This First Rent Appeal under section 21 of the Sind Rented Premises Ordinance, 1979 (hereinafter to be referred an 'Ordinance') is directed against the order dated 19th September, 1984 of IXth Sr. Civil Judge and Rent Controller, Karachi, whereby he dismissed the Rent Application No.6004/78 of appellant Yous.uf Hassan.

Appellant is landlord of premises bearing No.84/AG/No.II, near Firdous Cinema Commercial Area Liaquatabad Karachi, while respondent Amir Ali is tenant of the above shop at monthly rent of Rs.60. The rent case was filed on the grounds of damage to the premises, and personal bona fide requirement. The Rent Controller on the pleadings of the parties framed the following issues:----

"(1) Whether the case premises is required by the appellant for his personal bona fide use in good faith

(2) Whether the damage to the case premises was caused by the respondent

Both the issues have been decided against the appellant hence he has filed this appeal.

Before the Rent Controller appellant examined himself and Choudhary Ishfaq Hussain Ex.4 in his support. While Abdul Ali, attorney of the respondent and his witness Qamaruddin were examined.

I have heard Mirza Abdul Rashid for the appellant and Mr. Mustafa Lakhani for the respondent.

It is contended by Mr. Mirza Abdul Rashid that appellant has proved the case as it is an admitted position that he is working as electrician and wants to carry on his business in his own shop therefore his statement could be believed. He has referred to the cases reported in P L D 1976 Kar. 832, P L D 1980 Kar.409, 1950 S C M R 593, and P J. D 1984 Kar.14. It is also argued by the learned counsel that respondent did not appear before the Rent Controller though he filed written statement therefore his written statement cannot be treated as evidence. He has referred to the cases reported in P L D 1972 SC 25 and 1983 C L C 244.

Mr. Lakhani appearing for the respondent submitted that personal need is to be proved from the adequate evidence which the appellant has failed to prove therefore Rent Controller has rightly dismissed the rent case. He has referred to the cases reported in PLD 1985 Kar.639, P L D 1985 Kar.714.

Mr. Mirza Abdul Rashid does not press the issue of damage therefore only one issue of personal bona fide is to be considered.

In the rent application the appellant has stated that he is out of job and approached to respondent several times and also sent notice on 8-10-1978 for handing over the possession of the premises. He in his evidence Ex.3 also has stated that he was working in Bawany Industries Ltd., but left the job in January, 1979 and requires the shop in question for his personal use. It is stated that he is electrician and wants to start his own business as he has no other premises of own. It was suggested in the cross-examination that he wants to get enhanced rent and this suggestion was denied. He being an electrician is not disputed on the contrary, in cross- examination it was suggested that he has been working as electrician in several industries. His witness Ch. Ashfaq Hassan stated that he knows the appellant since childhood and he is an electrician, working in Bawany Industries Ltd. and has no permanent job. He has stated that he has no other premises except the shop and he wants to start his own business. This witness has admitted in cross-examination that appellant is his nephew and is jobless. In cross-examination nothing has been come out that rent application was filed with any mala fide.

Abdul Ali, attorney and brother of the respondent has stated in the evidence that appellant wants to enhance the rent of shop and on refusal to accept his terms he filed false case. He. has stated that appellant is not serving in Bawany Industries Ltd. It is stated that appellant wants to sale the shop and earn pugri by ejecting the respondent as he asked his cousin brother Qamaruddin that he wants to sale the shop and would not get good price of the shop with tenant therein. It is stated that he told his cousin to enhance the rent by five times which he refused therefore this case has been filed. Qamaruddin Ex.6 has stated that respondent is his cousin brother. He made effort to the settlement between the parties to which appellant did not agree as he wanted to sale the shop in vacant condition or wanted to enhance rent five times. The same position about enhancement in rent has been taken in the written statement. But it is stated that respondent showing leis willingness to increase in rent at some reasonable rate but his offer was rejected and notice was sent to him. He has also stated that appellant intentionally and did not collect the rent. In case of Hassan Khan v. Mrs. Munawar Begum reported in P L D 1976 Kar.832. It has been held that assertion on oath by landlord is that he requires the premises for his personal use .found to be consistent with his averments in his application and not shaken in cross-examination or disprove in rebuttal to be accepted as bona fide. In a case of Muhammad Bashir v. Vensimal and 4 others reported in P L D 1980 Kar. 409 it has been held that landlord's only evidence is sufficient to prove personal bona fide requirements to be found correct. In case of Mst. Toheed Khanam v. Muhammad Shamshad reported in 1980 S C M R 593 their Lordships have observed that in case the evidence produced by the landlord found not to be false and looking in establishing his plea the evidence to be considered trustworthy. Even the business landlord wants to carry out not mentioned in the rent application is not sufficient to discredit his personal requirement. In case of Rajab Ali v. Darius B. Kandawalla and another reported in P L D 1974 Kar. 14. It has been held as under:----

"I am also inclined to hold the view that even if the respondent has expressed her desire to sale the disputed house that should not be permitted to come in her way in getting her tenants ejected if she has succeeded otherwise in establishing her case on the ground of personal requirement."

From the above statement of the appellant and his witnesses in my view the personal bona fide requirements in good faith has been proved. He is electrician and technical expert and has right to start his business. The contention of the respondent that appellant wants to enhance the rent cannot be sustained as no documentary proof in this respect has been produced excepting evidence of Qamaruddin who is cousin brother of the respondent. Not only this the respondent/ tenant for the reason best known to him did not appear though he filed written statement himself but examined his attorney only and whose evidence cannot discredit the evidence on oath given by the appellant. The authorities cited by Mr. Lakhani are not relevant as circumstances and facts of both the cases are different and in the present case the evidence in the rebuttal is not such which can discredit the evidence of appellant. In case of Mst. Khair-un-Nissa and 6 others v. Mohammad Ishaque reported in P L D 1972 S C 25. It has been held that written statement cannot be exhibited in case without the person who filed the same being examined in the Court. In the present case respondent was not examined, and there remained only evidence of his attorney and Qamaruddin.

The upshot of the above discussion is that from the evidence on the record it has been proved that appellant demand for the disputed shop has been proved in good faith. Accordingly appeal succeeds. The Respondent shall hand over the vacant possession of the tenement in their occupation to the appellant within four months from the order.

H.B.T./Y-9/K Appeal accepted.

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