Judgment Sheet
IN THE HIGH COURT OF SINDH KARACHI
Constitutional Petition No. S – 441 of 2016
Petitioner : Sohail through Mr. Javaid Iqbal Advocate.
RespondentNo.1 : Kamran Siddiqui
through Mr. Hussain Bux Saryo Advocate.
Respondent No.2 : District Judge Karachi West.
Dates of hearing : 10.01.2019 and 07.03.2019.
J U D G M E N T
NADEEM AKHTAR, J. – Rent Case No.91/2012, being an application under Section 15(2)(vii) of the Sindh Rented Premises Ordinance, 1979, (‘the Ordinance’), filed by respondent No.1 against the petitioner for his eviction from Shops No.4 and 5 constructed on Plot No.1032, Gali No.17, Block No.‘J’, Sector 11˝, Orangi Town, Karachi (‘demised premises’), on the ground of personal need, was dismissed by the learned Rent Controller vide order dated 14.04.2014 ; however, in First Rent Appeal No.13/2014 filed by respondent No.1 against dismissal of his rent case, findings of the learned Rent Controller were reversed by the learned appellate Court and the above rent case was allowed vide judgment dated 16.02.2016 by directing the petitioner to vacate the demised premises and to handover vacant and peaceful possession thereof to respondent No.1 within ninety (90) days. The above order of his eviction passed by the learned appellate Court has been impugned by the petitioner through this Constitutional Petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973.
2. It was the case of respondent No.1 before the Rent Controller that the petitioner was his tenant in respect of the demised premises at a monthly rent of Rs.1,000.00 ; respondent No.1, who was a computer technician, wanted to start his business in the demised premises and as such he requested the petitioner to vacate the same, but the latter refused to do so ; and, he was entitled to seek possession of the demised premises for the above purpose. The rent case was contested by the petitioner by filing his written statement wherein it was alleged by him that respondent No.1 had come to the Court with unclean hands, he had made false statements in his application and no cause of action had accrued to him. It was asserted by him that including the two subject shops / demised premises, respondent No.1 was the owner of five shops in the same building out of which Shop No.1 was lying vacant and he was already carrying on his business of computer technician in Shop No.2 in the name and style of ‘Computer House’ ; respondent No.1 had pasted an advertisement / notice on the shutter of vacant Shop No.1 stating “shops are available for rent and sale” ; and, in view of the above, the alleged need of respondent No.1 was not genuine or bonafide.
3. In view of the divergent pleadings of the parties, the Rent Controller framed the points for determination viz. “(1) Whether the shops in question are required by the applicant for his personal bonafide need ? and (2) What should the order be ?”. Thereafter, evidence was led by the parties when respondent No.1 examined himself and his brother Farhan Siddiqui, and the petitioner also examined himself. After examining the evidence produced by the parties and hearing their respective counsel, rent case filed by respondent No.1 was dismissed by the learned Rent Controller vide order dated 14.04.2014. In the appeal filed by respondent No.1 against dismissal of his rent case, the learned appellate Court did not agree with the findings of the Rent Controller and through the impugned judgment allowed the respondent No.1’s rent case and directed the petitioner to vacate the demised premises and to handover vacant and peaceful possession thereof to respondent No.1 within ninety (90) days.
4. It was contended by Mr. Javaid Iqbal, learned counsel for the petitioner, that respondent No.1 had miserably failed in establishing that the demised premises were required by him in good faith or his alleged need in respect thereof was bonafide. It was contended by him that respondent No.1 had claimed in his eviction application that demised premises were required by him for establishing his own computer business, but he had admitted in his cross-examination that he was already doing the business of computers in Shop No.2 and Shop No.1 was lying vacant ; that he was claiming the demised premises for his brother who was also a computer technician ; that an advertisement was affixed on the shutters of the shops that the same were for sale; and, that he had been negotiating sale of the demised premises with the petitioner, but the offer made by the petitioner was not accepted by him as it was too low. It was further contended by him that respondent No.1 had stated in his cross-examination that Shop No.1 was not suitable for his brother as it was in dilapidated condition, however, his brother / witness had admitted in his cross-examination that Shop No.1 had been renovated and it was in the use and occupation of respondent No.1. It was submitted by the learned counsel that there was a serious contradiction in the pleading and evidence of respondent No.1 and also in the evidence led by him and his brother / witness ; in view of such contradiction as well as the above admissions made by respondent No.1 and his brother / witness, his alleged claim of personal need had become doubtful ; respondent No.1 had miserably failed in proving such need ; and, in the above circumstances his application was rightly rejected by the learned Rent Controller. In support of his above submissions, learned counsel for the petitioner placed reliance on Messrs Mack Industries V/S Haji Abdul Karim and 9 others, 1986 MLD 1595 (Karachi), Muhammad Asghar V/S Abdul Rehman and 8 others, 2010 MLD 665 (Karachi), Sarwar Ali V/S IInd Additional District and Sessions Judge, Karachi (East) and 2 others, 2010 YLR 815 (Karachi) and Muhammad Irfan V/S Haji Abdul Ghani and another, 2010 YLR 2549 (Karachi).
5. On the other hand, Mr. Hussain Bakhsh Saryo, learned counsel for respondent No.1, strongly supported the impugned judgment. He conceded that the need of his brother was initially not pleaded by respondent No.1 in his eviction application. He, however, contended that respondent No.1 was entitled and justified in raising such ground subsequently in his evidence due to which merits of his case were not affected. According to him, the admissions made by respondent No.1 and his brother / witness also did not affect the merits of their case. It was contended by him that the fact that possession of other shops was with respondent No.1 did not disentitle him from claiming the demised premises, he was the sole judge to decide which of the shops was suitable for him and the petitioner had no right to object to his discretion or choice. In support of his above submissions, learned counsel relied upon Qamaruddin through his Legal Heirs V/S Hakim Mahmood Khan, 1988 SCMR 819, Iqbal Book Depot and others V/S Khatib Ahmed and 6 others, 2001 SCMR 1197, Haji Abdullah and 10 others V/S Yahya Bakhtiar, PLD 2001 SC 158, Muhammad Ali Pinham V/S Muhammad Idris, 2002 SCMR 400, Abdul Rahman through LRs Ibrahim Abdul Rehman & 6 others V/S Pakistan State Oil Company Ltd. & another, 2007 SCJ 800 and Muhammad Anwar Azim V/S R.I.G. Education Board through Directress / General Secretary, PLD 2003 Karachi 34.
6. I have heard learned counsel for the parties at length and with their able assistance have also examined the material available on record and the law cited by them at the bar. The eviction application was filed by respondent No.1 on the sole ground of personal need, therefore, the burden was squarely on him to prove that the demised premises were required by him in good faith and the personal need pleaded by him was genuine and bonafide. By claiming that he was a computer technician, it was pleaded by him in his eviction application that the demised premises were required by him for his own use as he wanted to establish his own computer business therein and his application was completely silent with regard to the need of his brother. However, in his affidavit-in-evidence though it was vaguely mentioned by him that his brother was also a computer technician, there was no mention about the latter’s requirement. In his cross-examination, respondent No.1 changed his stance by stating for the first time that “since my brother has become jobless as such I need the shop in question for his use”. It was clear from his above admission that the demised premises were being claimed by him for his brother and not for himself. Needless to say that he was not entitled to claim the demised premises for his brother as siblings do not fall within the definition of “personal use” contained in Clause (g) of Section 2 of the Ordinance, or in the ground of eviction envisaged in Clause (vii) of Sub-Section (2) of Section 15 of the Ordinance.
7. Regarding the case set up originally by respondent No.1 in his eviction application claiming the demised premises for his own use and occupation for establishing a computer business, it was admitted by him in his cross-examination that he was already doing the business of computers in Shop No.2 and Shop No.1 was lying vacant ; an advertisement was affixed by him on the shutters of the shops that the same were for sale ; and, he had tried to sell the demised premises to the petitioner, but the offer made by the latter was not accepted by him as it was too low. Moreover, the brother / witness of respondent No.1 had admitted in his cross-examination that Shop No.1 had been renovated and it was also in the use and occupation of respondent No.1. It was clear from the above admissions made by respondent No.1 and his witness that two shops (Nos. 1 and 2) were already in the use and occupation of respondent No.1 wherein he was carrying on the same business of computers for which he was claiming the demised premises, but this important fact was suppressed and concealed by him in his eviction application before the Rent Controller. It was also clear from the respondent No.1’s own admission that eviction proceedings against the petitioner were initiated by him after having failed in selling the demised premises to the petitioner and after rejecting the offer made by the petitioner on the ground that it was too low. In the above circumstances, the claim of personal need made by respondent No.1 could not be deemed to have been made in good faith and his alleged need could not be termed as bonafide.
8. My above view is fortified by (1) Haji Abdullah (supra) wherein the Hon’ble Supreme Court was pleased to hold that the real test for deciding whether a premises is required for personal use is to see whether the need of the landlord is based on good faith or not ; (2) Qamaruddin (supra) wherein it was held by the Hon’ble Supreme Court that the only question that would disentitle a landlord to such relief would be a case where he is in possession of other equally suitable shop in the same locality or had rented out a shop after the institution of the eviction case and has contumaciously concealed the fact in his application or statement at the trial ; and, (3) Iqbal Book Depot (supra) wherein it was held by the Hon’ble Supreme Court that mere wish, convenience, whim or fancy of the landlord would not be enough to show that he requires the premises in good faith, and the landlord must prove requirement of premises for reasonable needs and that he was not seeking eviction on the pretext of requiring additional accommodation with oblique motive of realizing some extraneous purposes. Interestingly, all the above-cited authorities have been cited on behalf of respondent No.1, but they are against him and clearly support the above view expressed by me.
9. In addition to the above, it was also clear from the above admissions made by respondent No.1 that his pleading and evidence were at variance. Such variance / contradiction / inconsistency in his stance was of vital importance when the burden was on him to prove that the demised premises were required by him in good faith for his own occupation or use. It is well-settled that a party cannot improve his case by pleading new facts or grounds in his evidence, and evidence by a party cannot be allowed in respect of a plea that was not pleaded by him in his pleading.
10. I shall now discuss the following cases cited and relied upon by learned counsel for respondent No.1 :
A. In Qamaruddin (supra), the applicant / landlord had categorically stated that after retirement from government service he was in the need of the shop in question for running the business of a general store to earn his livelihood and he wanted to engage one of his two grownup sons in his said business. By observing that his above statement had not been challenged in cross-examination and was not rebutted by any evidence produced by the tenant, the appeal of the landlord was allowed by the Hon’ble Supreme Court by holding that the only question that would disentitle a landlord to such relief would be a case where he is in possession of other equally suitable shop in the same locality or had rented out a shop after the institution of the eviction case and has contumaciously concealed the fact in his application or statement at the trial. The facts of the above-cited case are clearly distinguishable as in the case at hand demised premises were not claimed by respondent No.1 for his son, but were claimed by him initially for himself and then for his brother, and the statements made by him were not only challenged and rebutted by the petitioner, but respondent No.1 himself as well as his brother had also made the above mentioned categorical admissions.
B. In Iqbal Book Depot (supra), the landlord, who wanted to reconstruct the demised premises, had agreed with the tenants to re-induct them after reconstruction. The question in the above-cited case was whether in the above background the landlord was entitled to claim the demised premises on the ground of personal need. It was held by the Hon’ble Supreme Court that it is well-settled by now that where the statement of landlord on oath was quite consistent with his averment made in the ejectment application and neither his statement was shaken nor was anything brought in evidence to contradict the statement, that would be sufficient for acceptance of the ejectment application. It was further held that mere wish, convenience, whim or fancy of the landlord would not be enough to show that he requires the premises in good faith, and the landlord must prove requirement of premises for reasonable needs and that he was not seeking eviction on the pretext of requiring additional accommodation with oblique motive of realizing some extraneous purposes. This case is also distinguishable as in the instant case the statement made on oath by respondent No.1 in his eviction application and the evidence led by him also on oath were not at all consistent, and the statement made by him was shaken and contradicted in his cross-examination not only by the petitioner, but also by the admissions made by him and his witness.
C. In Haji Abdullah (supra), personal need was pleaded by the landlord on the ground that his son, who was a doctor and had proceeded to USA for specialization, was due to return to Pakistan, and his said son wanted to establish a hospital in the demised premises. The eviction application and evidence led by the landlord revealed that his son was highly qualified and he wanted to establish a well equipped laboratory and hospital at Quetta, and nothing solid or convincing was brought in rebuttal showing that the need of the landlord’s son was imaginary or was based on malafide. It was held by the Hon’ble Supreme Court that the landlord’s son could not be deprived simply for the reason that he was not in Pakistan when the eviction proceedings were pending ; the real test for deciding whether a premises is required for personal use is to see whether the need of the landlord is based on good faith or not ; this being a question of fact, finding on this subject cannot be taken exception to unless it is shown that is suffers from violation of some fundamental legal principles in the matter of appreciation of evidence or omission of evidence or misreading of evidence ; and , the question of bonafide personal requirement, being a question of fact, if stands concluded by concurrent findings of the two Courts below it is not open to challenge in the absence of any omission or misreading of evidence or violation of any principle of law. The above-cited case is also distinguishable as in the instant case demised premises were not claimed by respondent No.1 for his son, but were claimed by him initially for himself and then for his brother ; evidence showing clear admissions by respondent No.1 and his witness was misread, thus fundamental legal principles of appreciation of evidence were violated ; and, there are conflicting findings of both the learned Courts below on the question of fact regarding personal need of respondent No.1.
D. In Muhammad Ali Pinham (supra), the demised premises was a residential house and the applicant / landlord did not have any other house, and in Abdul Rahman (supra) also, the applicant / landlord did not have any other property except the demised premises. Whereas, in the instant case it was an admitted position that respondent No.1 was the owner of five shops, including the demised premises, and two shops were already in his possession wherein he was carrying on the same business for which demised premises were claimed by him.
E. In Muhammad Anwar Azim (supra), it was held by a learned single Judge of this Court that where the landlord has stated about his personal bonafide need on oath, it is to be taken as true unless disbelieved by cogent evidence and sufficient proof to the contrary. I have already observed that in the instant case the statement made by respondent No.1 was shaken and contradicted in his cross-examination not only by the petitioner, but also by the admissions made by him and his witness. In any event, the above-cited case of a learned single Bench of this Court, is not binding upon me.
Thus, the above cases cited and relied upon on behalf of respondent No.1 are of no help to him.
11. The overall effect of the contradiction in the pleading and evidence of respondent No.1, the contradiction in his own evidence and that of his witness, and the important and categorical admissions made by him and his witness is that he was not entitled to claim the demised premises for his brother as siblings do not fall within the definition of “personal use” contained in Clause (g) of Section 2 of the Ordinance, or in the ground of eviction envisaged in Clause (vii) of Sub-Section (2) of Section 15 of the Ordinance ; and, his own personal need was not in good faith or bonafide. In my humble opinion, the learned Rent Controller had rightly dismissed the respondent No.1’s eviction application, but the learned appellate Court did not appreciate the evidence on record, particularly the admissions made by respondent No.1 and his witness. Therefore, the impugned judgment of the learned appellate Court cannot be allowed to remain in the field.
12. As a result of the above discussion, the impugned judgment of the learned appellate Court is hereby set aside and the order passed by the learned Rent Controller, whereby eviction application filed by respondent No.1 was dismissed, is restored. This petition is allowed in the above terms, however, with no order as to costs.
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J U D G E