JUDGMENT SHEET

HIGH COURT OF SINDH CIRCUIT COURT HYDERABAD.

F.R.A No.04 of 2010

(Umair Ahmed Vs. Muhammad Jameel)

Appellant Umair Ahmed:                                   Through Mr. S.M. Imran Ahmed, Advocate.

Respondent Muhammad Jameel:                       Through Mr. Rafique Ahmed, Advocate.

Date of Hearing:                                              22.10.2010.

Date of Judgment:                                             29.10.2010.

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IRFAN SAADAT KHAN, J. This appeal has been filed under section 21 of Cantonment Rent Restriction Act, 1963 against the order passed by Rent Controller Cantonment Area, Hyderabad vide his order dated 16-01-2010.

            Mr. S.M. Imran Ahmed, the learned counsel appearing on behalf of the appellant submitted that the order passed by the learned Rent Controller is not in accordance with law as the appellant has neither defaulted in payment of rent nor defaulted in payment of electricity charges. As per the learned counsel the learned Rent Controller has passed the order without considering the facts and the merits of the case. The learned counsel further submitted that no where it is admitted by the appellant with regard to the vacation of the said premises. He further submitted that the plea of personal use taken by the respondent for vacating the said shop is misconceived as the respondent is successfully carrying on his business at a nearby place and is only making an attempt to get the possession of the said shop by falsely deposing that he needs the shop for his personal bonafide use. As per learned counsel the Rent Controller has allowed the appeal of the respondent by not considering various aspects of the case and by illegally observing that the said shop is required for personal bonafide use of the respondent without touching the merits of the case. In support of his contentions, the learned counsel has also relied upon the decisions reported as NLR 1997 Civil 1448, 1998 CLC 937, 1983 CLC 2511 and 1982 CLC 1847.

            Mr. Rafique Ahmed, learned counsel appearing on behalf of the respondent supported the order passed by the Rent Controller and submitted that through a detailed and speaking order the Rent Controller came to the conclusion that firstly the appellant is a defaulter of not only the rent as well as the electricity charges but has also opined that the said shop is needed by the respondent for his personal use as he is an old man and it is quite inconvenient for him to go to the shop in which he is presently conducting his business which is quite far away from his home. Learned counsel further submitted that an agreement took place between the appellant and respondent with regard to the vacation of the said shop in 2005 but the appellant did not vacate the said shop, as per his promise and still is enjoying the possession of the said shop. However, on a question by the Court that whether the agreement entered between the appellant and the respondent with regard to the vacation of the shop in 2005 could be considered as a valid agreement? The learned counsel candidly conceded that the same could not be considered to be a valid and legal agreement in the eyes of law, however, submitted that this alone is not the reason for getting the decision in his favor rather the main reason for getting the said shop vacated being that the respondent needed the shop for his own personal bonafide use. As per the learned counsel the appellant is a chronic defaulter of electricity bills and the HESCO has even lodged F.I.R against him. The learned counsel further submitted that the order passed by the Rent Controller did not suffer from any legal infirmity and the appeal filed by the appellant, being misconceived, deserves to be dismissed.

            Briefly stated the facts of the case are that the respondent is an old man running a hair dressing shop situated at some distance to his house which is causing great inconvenience to him. Present shop which is in occupation of the appellant is situated in the house of the respondent and the respondent needed the same for conducting his business and for earning livelihood for his living and for his own personal bonafide use.

            It appears from the record that the appellant has failed to pay rent and electricity charges for certain period and an agreement took place between two parties on 17-05-2005 that the shop, at present in the occupation of the appellant, would be vacated by 30^th November, 2005, however, till date the same is in the occupation of the appellant. The matter thereafter was referred to the Rent Controller, who vide his order mentioned supra decided the case in favor of the present respondent, hence the present appeal.

            I have heard both the learned counsel at some length and have also perused the record as well as the decisions relied upon by the counsel for the appellant.

            There is no denial to the fact that the appellant is an old man and the present shop where he is conducting his business is at some distance from his home/the shop where respondent is conducting his business. The learned Rent Controller has specifically observed that the appellant is a defaulter, so far as payment of electricity dues is concerned. However, the learned counsel for the appellant produced before me the up to date bills of electricity showing that electricity charges have been duly paid promptly. The learned Rent Controller has further observed that no rebuttal has been made by the learned counsel for the appellant that he has categorically made a promise that he would vacate the said shop in November, 2005, however, the appellant desisted from his promise by not vacating the said shop and which proves beyond any doubt that he has no intention to vacate the said shop by hook or by crook. The Rent Controller has further observed that the respondent was successful in bringing home the case that the said shop is being required for his personal bonafide use.

            I have considered the case laws relied upon by the learned counsel for the appellant, which in my opinion are quite distinguishable as in those decisions it has been observed that if the landlord fails to prove his case that premises is being required for personal bonafide use and the claim is not malafide then no relief could be granted to the said landlord.

            It is a well established proposition of law that if a landlord is having a number of shops it is for the landlord to decide as to which shop he wants to occupy. No bar or restriction in this regard could be imposed on the said landlord not to get vacation of anyone of his shop of his own choice where he wanted to conduct his business. In the instant case also the landlord who is an old person required the said shop for his own personal bonafide use and the learned counsel for the appellant was not able to demonstrate the apprehension that the said shop would either be let out to some other person or the said shop could not be used other than for his own personal bonafide use. Even the learned counsel for the respondent assured that the shop is not needed either for subletting the same on enhanced rent or is an attempt to extract enhanced rent from the present appellant or to exert pressure on the appellant to indulge with the respondent for entering into a new rent agreement for enhanced rent. In my view the respondent has been successful in demonstrating before the Rent Controller that the said shop was required by him for his personal bonafide use and the shop where at present the respondent is conducting his business has some what become unsuitable for his needs due to the reason that it is at some distance from his home. The term “own use” as appeared in section 17 (4) (b) of Cantonment Rent Restriction Ordinance, 1963 is wide enough to embrace therein the need of a shop for own business use. This terminology could not be given a restricted manner. It is always the prerogative of the landlord to choose the premises where he wanted to conduct his business and if the landlord had duly acquitted himself by stating on oath that his requirement of the said premises is in good faith, the landlord has to be deemed to have discharged his burden, even if the landlord is having some property in other areas. In the Judgment reported as “Tarique Masood vs. Maroo Ali Shah” in 1999 YLR 394, wherein under somewhat identical circumstances, it has been held as under:-

“It has been held through various judgments of this Court as well as the Superior Court that it is the prerogative of the landlord to choose the premises where he wants to live. Reliance can be placed on the case of S.M. Nooruddin and others v. SAGA Printers (1998 SCMR 2119) wherein it was held that “mere letting out of other premises by a landlord either before or after the institution of eviction proceedings on the ground of personal need in itself is not always enough to non-suit the landlord. Once the landlord has duly acquitted himself by stating on oath that this requirement is in ‘good faith’ as understood in law, he should normally be deemed to have discharged his burden, which, thereupon shifts to the tenant for who it remains initially to cross-examine the landlord and, that being done, lead his own evidence in rebuttal.” In the present case, the attorney of the landlord/respondent has clearly stated the personal bona fide need of the owner of the premises wherein the landlord wants to settle his family and to come back and himself settle therein. One the other hand, the tenant failed to bring any documentary evidence on record to support his plea in rebuttal that the landlord has any other property in Karachi.”

            Similar view was adopted in “Muhammad Yousif v. Shahida Khatoon” (1994 CLC 240), wherein it was held that “it is the choice of the landlord to reside in the portion of the house he liked. Tenant can not impose his will upon the landlord”. In the present case also there is no denial to the fact that the shop is being required for personal use. Even if it is assumed, for the arguments sake that there is no default on the part of the appellant, so far as payment of rent and electricity charges are concerned, however, the personal bonafide use if made on oath and which remained un-controverted has to be given preference.

            The learned counsel for the appellant has vehemently contended that land lord is already having a shop is not entitled for ejectment, suffice it to observe that it has been settled by a number of decisions given by this Court and other Superior Courts that “even if the landlord is in occupation of some premises still he would be entitled to eviction of the tenant on the ground of his requiring the premises in good faith for his own use”. Reference in this regard may be made to the case reported as “Sardar Muhammad Yakoob vs. Muhammad Saleem” (2000 CLC 274). Similar view was adopted in the decision reported as PLD 2002 Lahore 267.

            In view of the observations made above, I do not find any merit in this appeal which is hereby dismissed and the order passed by the Rent Controller is hereby affirmed. However, before parting with the order, three (03) months time is granted to the appellant, from the date of the announcement of this Judgment, for handing over the vacant possession of the premises in question to the respondent. However, there shall be no order as to costs.

JUDGE

A.C