Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: Mst. SAEEDA through her son Muhammad Abid VS Respondent: MUHAMMAD NAEEM and 3 others
Court Name: Sindh High Court Judge(s): Muhammad Tasnim Title:Mst. SAEEDA through her son Muhammad Abid vs MUHAMMAD NAEEM and
3 others Case No.: Constitutional Petition No,S-627 of 2011 Date of Judgment:2012-10-15 Reported As: PLD 2013 Sindh 39 Result: Petition allowed Judgment ORDER ' MUHAMMAD TASNIM, J.---Through this petition, petitioner Has assailed the order dated 29-7-2011 announced on 12-8-2011 by Learned Viet Additional District Judge, Hyderabad in F.R.A.No,11 of 2011 filed by respondents Nos.1 and 2, whereby appeal filed by respondents Nos.1 and 2 was allowed and order passed by learned Rent Controller on 21-1-2011 in Rent Case No,8 of 2010 was set-aside. 2. The case of the petitioner, as set-out in the petition, is that on 3-3-2010 petitioner had filed application under section 15 of the Sindh Rented Premises Ordinance, 1979 hereinafter called "the Ordinance, 1979" against respondents Nos.1 and 2 in respect of Shop Nos.1 and 2 bearing C.S.No,2732 admeasuring 96.04 Square Yards, ground floor, Ward-E, Street No,3, Fort Area Hyderabad hereinafter called "Case Premises" on the ground of personal need of sons of the petitioner namely Asif and Atif. On service of the rent application, respondents Nos.1 and 2 filed their separate written statements denying the allegations of the petitioner and submitted that no personal need of the petitioner has been pointed out and further submitted that all the sons of the petitioner were engaged in the jeweler business. It was stated that Asif was doing business of jeweler. At Tayyab Complex and Atif and Abid were doing business of jeweler at their shop in Shahi Bazar. 3. In support of the case of the petitioner son of the petitioner namely Abid appeared as attorney and filed his affidavit-in-evidence. His other brothers namely Asif and. Atif also filed their respective affidavit in -evidence. All the Witnesses were cross-examined by the counsel for Respondents Nos. I and 2. Similarly, respondents Nos.1 and 2 filed their respective affidavit-in- evidence and affidavit-in-evidence of Muhammad Shafiq as their witness. All the witnesses were
---
## Page 2
cross-examined by the petitioner's side. 4. Learned Rent Controller heard the parties and while disposing of ejectment application framed following issues:-- "(1) whether the shops in .Question are required by the applicant for personal bona fide use of her two sons? (2) What should the order be?" 5. After discussion of the material, respondent No,4 decided the point No,1 in affirmative and allowed the rent application directing the respondents Nos.1 and 2 to hand over the vacant and peaceful possession of the Case Premises to the petitioner within sixty days of the order. 6. The respondents Nos.1 and 2 felt themselves aggrieved against the order passed by the learned Rent Controller on 21-1-2011 and filed F.R.A.No,11/2011 before the learned VII Additional District Judge, Hyderabad, who heard the parties and allowed the appeal as aforesaid vide order dated. 29-7-2011 announced on 12-8-2011 which has been impugned in this petition? 7. Mr. Jhamat Jethanand, learned counsel for the petitioner has submitted that order passed by the learned Rent Controller is in consonance with the material available on record so also in line with law and the pronouncements of the honourable Supreme Court of Pakistan. He further submitted that appellate order which has been impugned in this petition is based on misreading and non- reading of material evidence which has seriously prejudiced the case of the petitioner. He further submitted that through cogent evidence personal need of the landlord was established but while passing the appellate order learned Appellate Court ignored material evidence and have considered immaterial evidence relating to personal need. He also submitted that during recording of cross-examination name of the son of petitioner instead of "Arif" was wrongly typed as "Atif" and on this ground alone the petitioner has been non-suited. He pointed out that learned appellate Court has quoted irrelevant pieces of evidence in the impugned order and has ignored the material evidence relating to personal bona fide need of the landlord's sons. He submitted that the findings of learned appellate Court are opposed to evidence and in violation of settled legal position on personal bona fide need of landlord. He further submitted that need of the landlord is genuine and personal bona fide need was dilly established on record through cogent evidence, which was not shaken in cross examination. He submitted that in, the circumstances appellate order is liable to be set aside. Learned counsel for the petitioner has submitted that order of the learned Rent Controller takes care of all the material available on record and learned respondent No,4 has recorded his findings strictly in accordance with law. Learned counsel finally prayed that appellate order be set-aside, petition be allowed and order passed by learned Rent Controller be restored. In support of his contentions, learned counsel for the petitioner has relied upon the following case-law: (1) MST. SHIRIN BAI V. FAMOUS ART PRINTERS (PVT.) LTD. AND OTHERS (2006 SCMR 117), (2) ABDUL RAHMAN V. PAKISTAN STATE OIL COMPANY LTD. AND ANOTHER (PLD 2004 SUPREME COURT 921), (3) MUHAMMAD ANWAR AZIM AND ANOTHER V. R. I. G. EDUCATION BOARD (PLD 2003 KARACHI 34), (4) ZAHEERUDDIN BABAR V. MST. KISHWAR AND OTHERS . (2009 YLR 1052); and (5) MUHAMMAD MOHSIN MALIK V. MST. QAMAR JEHAN AND OTHERS (2009 YLR 289). (6) MRS, MARIAM V. NAEEM AHMED (2001 SCMR 1676), (7) S.M. NOORUDDIN AND OTHERS V. SAGA PRINTERS (1998 SCMR 2119), (8) SHAKEEL AHMED AND ANOTHER V. MUHAMMAD TARIQ FAROGH AND OTHERS (2010 SCMR 1925), (9) NELOFAR SOOMAR V. MST. SHAHIDA (2010 CLC 447), (10) QAMAR ZAMAN V. IIND ADDITIONAL DISTRICT JUDGE, -KARACHI AND ANOTHER (2008 CLC 431), (11) JEHANGIR RUSTAM KAKALIA V. MESSRS HASHWANI SALES & SERVIES (PVT.) LIMITED) (2002 SCMR 241),
---
## Page 3
(12) MEHDI NASIR RIZVI V. MUHAMMAD USMAN SIDDIQUI (2000 SCMR 1613), (13) ZARINA AYAZ V. KHADIM ALI SHAH (2003 SCMR 1398), (14) MUHAMMAD SHOAIB ALAM AND OTHERS- V. MUHAMMAD IQBAL (2000 SCMR 903), (15) UNITED BANK LIMITED V. MRS, ALAFIA HUSSAIN (1999 SCMR 1796), (16) IQBAL BOOK. DEPOT AND OTHERS V. KHATIB AHMED AND OTHERS (2001 SCMR 1197); AND (17) SHER AFGAN V. SHEIKH ANJUM IQBAL (PLD 2004 SUPREME COURT 671). 8. On the other hand, Mr. Shamsuddin Memon, learned counsel for the respondents Nos.1 and 2, has supported the impugned order and has submitted that no misreading of evidence has been occasioned. He further submitted that order passed by learned Rent Controller was not in accordance with law and the evidence on record hence needed correction which was 'corrected, by the learned appellate Court through the impugned order. Learned counsel for the respondents Nos. 1 and 2 further submitted that need of sons of petitioner was neither bona fide nor genuine, hence appeal was rightly allowed by appellate .Court. He further submitted that all the sons of petitioner are working jointly in jewellery business and both the sons of petitioner do not require the shops in question for their personal bona fide need. He further submitted that petitioner owns other properties and can conveniently accommodate her sons in such properties. Learned counsel for respondents Nos.1 and .2 further submitted that prior filing to ejectment application the petitioner has enhanced the rent of premises in possession of respondents Nos.1 and 2 hence filing of ejectment application is a mala fide move on the part of petitioner. He further submitted that impugned appellate order May not be disturbed and this petition may be dismissed. In support of his contentions, learned counsel for the respondents Nos.1 and 2 has relied upon the following case-law:-- (1) MST. SAIRA BAI V. SYED ANISUR RAHMAN (1989 SCMR 1366), (2) MUHAMMAD HAFEEZ AND ANOTHER V. DISTRICT JUDGE, KARACHI EAST AND ANOTHER (2008 SCMR 398), (3) MALIK ISLAM AKBER V. MUSTAFA HUSSAIN (1992 CLC 1753), (4) QAMRUDDIN V. HAKIM MAHMOOD KHAN (1988 SCMR 819); and (5) MUHAMMAD ASGHAR V. ABDUL REHMAN AND OTHERS 2010 MLD 665). 9. I have heard the learned counsel for the parties and have also perused entire material with the assistance of learned counsel for the parties and the case-law cited at the bar. 10. Since on the same material two Courts have recorded conflicting findings in the circumstances it will be advantageous to reproduce the case of the petitioner as set-out in ejectment application, affidavit- in evidence and tested in cross-examination of witnesses. 11. Petitioner in the ejectment application with regard to personal bona fide use has stated in paragraphs-3 & 4 as under:-- "(3) That the case premises required for personal need for her sons namely Asif and Muhammad Atif for opening the Crockery shop. (4) That both sons of applicant are jobless they need case premises for their personal bona fide need." 12. Attorney of the petitioner Muhammad Abid with regard to personal bona fide need in his affidavit-in-evidence has stated as under: "(4) That the case premises required for personal need for her sons namely Asif and Muhammad Atif for opening the Crockery shop. (5) That both sons of applicant are fabless they need case premises for their personal bona fide need." 13. In the cross-examination conducted by the learned counsel for the respondent No,1, Muhammad Abid deposed as under:
---
## Page 4
". . . . My brother Asif is a jobless. It is incorrect to suggest my brother is working in the shop of goldsmith, which is situated at Tayyab Complex. My brother used to visit the shop of Goldsmith .Situated at Tayyab Complex which belongs to my uncle. It is incorrect to suggest that there is a share in the business of goldsmith with my uncle Zila Rehman and Asil. 1 has not produced any income tax certificate showing the title of business at Tayyab Complex. It is incorrect to suggest that there is one shop of Goldsmith situated at Shahi bazaar, which belongs to my brother Muhammad Atif. This shop belongs to us and there is one shop. It is incorrect to suggest that I and Asif are the partner in the business of our brother Atif at Shahi Bazar Hyderabad. I have not produced income tax certificate showing the title of our jewelry shop situated at Shahi Bazar." 14. Same witness in his cross-examination conducted by the learned counsel for the respondent No,2 has deposed as under:- " It is incorrect to suggest that my brother Asif is running the jewelry shop, which is situated at Tayyab Complex in the name and style of Shaikh Jewelers Shop No,13. It is correct to suggest that my brother Asif is married. It is incorrect to suggest that Atif is running the shop of jewelers in the Shop No,1426 Ward-E situated at Shahi Bazar Hyderabad in the name and style Attu Rehman Saraf and Shaikh Gold Test Laboratory and Refinery." 15. Other witness of the petitioner namely Asif son of Atta-urRehman in his affidavit-in-evidence in paragraphs 2 and 3 has stated as under:-- "(2) That I and my brother Atif, are jobless and we have no other place except case premises to run the business. (3) That the case premises is suitable for running the crockery business." 16. Said witness was cross-examined by learned counsel for the respondent No,1 and in his cross- examination he deposed as under:-- " I am jobless. I have experience of business of Karakari. It is correct to suggest that there is jewelry shop at Tayyab Complex, w/dch belongs to my uncle namely Zila Rehman. I never visit that shop. It is incorrect to suggest that I am partner in that shop and I used to sit in the shop as a partner. It is incorrect to suggest that we have jewelry shop at Shahi Bazar. It is correct to suggest that my brother Atif have jewelry shop at Shahi Bazar but I am not consent with him. It is incorrect to suggest that Atif and Abid are working with my brother. Shop of Shahi Bazar, which belongs to my brother and we all brothers inherited. It is incorrect to suggest that I, Asif and Atif have already doing jewelry business and we don't require shop in question for our personal bona fide use." 17. The above witness in his cross-examination conducted by learned counsel for the opponent No,2 has deposed as under:- It is correct to suggest that it is wrongly written in para-2 of my affidavit in evidence that my brother Atif is jobless and we have no any place except case premises to run the business. It is incorrect to suggest that my brother Atif is not running the Shop NO,1426 Ward-E situated Shahi Bazar Hyderabad in the name and style of Attau Rehman Saraf and Shaikh Gold Test Laboratory and Refinery. It is correct to suggest that the Shop' No,1426 Ward-E situated at Shahi Bazar owned by all brothers but we have given the same to our brother Arif to run his business. It is incorrect to suggest that I have given wrong statement that I have given the shop to my brother Arif to run his business. It is correct to suggest that in this respect I have not produced any proof in the present rent case. It is correct to suggest that we all brothers doing the business of gold smith since our forefather. It is incorrect to suggest that I am not jobless. It is incorrect to suggest that applicant has filed the present case only to enhance the rate of rent of the premises in question," 18. Other son of the petitioner namely Atif son of Atta-ur-Rehrnan in his affidavit-in-evidence has stated as under:-- "(2) That I and my brother Muhammad Asif are jobless and we have no other place except case premises to run the business.
---
## Page 5
(3) That the case premises is suitable for running the crockery business." 19. Above witness in his cross-examination conducted by learned counsel for the opponent No,1 has deposed as under:- . . . I am aged about 21 yeaRs, I am jobless. I can do the business of Karakari. It is correct to suggest that one shop of jewelry is situated at Tayyab Complex, which belongs to my uncle Zila Rehman.. My brother Asif is son in law of Zila Rehman and he used to visit the shop. It is incorrect to suggest that my brother Asif is running the business of Jewelry with my uncle Zila Rehman. It is correct to suggest that there is one shop of jewelry at Shahi Bazar, which belongs to my brother. It is incorrect to suggest that I and my brother Abid are doing business with our brother at Shahi Bazar Jewelry shop. It is incorrect to suggest that I and Asif are not jobless and we are doing jewelry business at Shahi Bazar and Tayyab Complex." 20. The above named witness in his cross-examination conducted by learned counsel for opponent No,2 has deposed as under:-- . It is correct to suggest that I have written in para-02 of my affidavit-in-evidence that I and my brother Muhammad Asif are jobless and we have no other place except case premises to run the business. It is correct to suggest that there is another our property but I and my brother Asif are no used the same but my elder brother Arif is used the property and run his business. It is correct to suggest that it is wrongly mentioned in para-02 of my affidavit in evidence that we have no other place except case Premises to run the business. It is incorrect to suggest that I and my brother Asif running the business of Gold Smith. It is incorrect to suggest that we are jobless. Vol: says my marriage is fixed on 24-12-2010 therefore I want to run my business independent." 21. Respondent No,1 Muhammad Naseem filed his affidavit-in- evidence and in his cross- examination conducted by learned counsel for the petitioner has stated as under:-- . . . . It is correct to suggest that jewelers business is very big, business the parties have to pay the income tax. It is correct to suggest that I have not produced any documentary proof or income tax return form to show that the Asif is paying the income tax of Shaikh JeweleRs, It is correct to suggest that I have not produced any documentary proof/income tax return or any other document to show that Atif is paying the income tax along with his brothers Abid and Arif for their business at Shahi Bazar Hyderabad. It is correct to suggest that there is Union of the Jewelers business. It is correct to .Suggest that I have not. Produced any witness of the registered union of Sarafa Bazar Union to show that Atif and Asif are working or running the business of Jewelry. It is correct to suggest that I have not produced any documentary proof regarding the let out the shop which is situated in Property No,2729." 22. Respondent No,2 also appeared as witness and in his cross-examination he has stated as under:-- .......... It is correct to suggest that I have not produced any documentary proof in respect of the ownership of Muhammad Asif for Shop Shaikh Jewelers in Tayyab Complex. I have no knowledge whether Asif is paying the income tax to the income tax department, it is correct to suggest that I have not produced any certificate to show, that the Asif is paying income tax of the shop situated in the Tayyab Complex. It is incorrect to suggest that I have not produced any documentary proof to show the ownership of Atif where he is running the business." 23. To appreciate above evidence of the parties, the settled legal principle regarding appreciation of evidence is to be applied, which provides that the evidence adduced by the parties is to be read, evaluated and assessed as a whole, and the impact of the evidence of an individual witness is also to be gauged in the same manner. In the instant case, there is categorical statement on behalf of the petitioner's attorney so also two sons of the petitioner With regard to personal bona fide need
---
## Page 6
of the case premises. Such statement of petitioner's witnesses has remained un-shattered in their cross-examination and un-rebutted in the evidence of the-opposite party. 24. From the perusal of the above material, it is apparent that case of the petitioner was throughout consistent, which remained UN--shattered and un-rebutted by the respondents' side in their evidence. For seeking eviction of a tenant from the rented shop, the only requirement of law is the proof of his bona fide need by the landlord, which stands discharged the moment landlord appears in the witness box and makes such statement on oath or in the form of affidavit-in- evidence as prescribed by law, if it remains un-shattered in cross-examination and un-rebutted in the evidence adduced by the opposite party. Reference can be made to the case of MST. TOHEED KHANUM V. MUHAMMAD SHAMSHAD (1980 SCMR 593), where in the opinion of I. Mahmood, J. (as he then was) in the case of HASSAN KHAN V. MU,NAWAR BEGUM (PLD 1976 Karachi 832) to the same effect, was approved. Reference can also be made to the case of SHAKEEL AHMED AND ANOTHER V. MUHAMMAD TARIQ FAROGH AND OTHERS,(2010 SCMR 1925). 25. On examination of the order passed by the learned Rent Controller, it can be seen that entire evidence of the petitioner's side has been taken into consideration and ejectment petition was allowed. Whereas learned Appellate Court while passing the impugned order has not taken into consideration the entire evidence of the parties and has relied upon only on some pieces of evidence of the petitioner's side. The findings recorded by learned Rent Controller is in line with evidence available on record and the rule laid down by the Superior Courts with regard to personal bona fide use. Whereas order rendered by learned Appellate Court has not taken into consideration entire evidence of the petitioner and the learned Appellate Court has mostly relied upon some typographical error in the cross-examination, wherein name of one of the sons of the petitioner was wrongly typed instead of "Arif it was typed "Atif". Learned Appellate Court has not quoted and considered all the pieces of the evidence from the petitioner's side in the impugned appellate order, typographical error of name of petitioner's son appears in paragraphs 11, 18 and 19 of the impugned order. 26. I am mindful of the facts that it is well settled that in the event of conflicting judgments findings of the Appellate Court are to be preferred and respected unless it is shown from the record that such findings are not supported by evidence and the conclusion drawn is B against the material available on record and that order of the learned Appellate Court suffers from misreading and non-reading of the evidence or that reasons recorded for reversal of order are arbitrary, fanciful and perverse. In the present case, learned Rent Controller has recorded findings in accordance with material available on record and entire. Evidence of the petitioner's side has been considered and findings with regard to personal bona fide need were recorded. Whereas learned Appellate Court's order suffers from misreading and non-reading of evidence, consideration of immaterial evidence, which has caused serious prejudice to the petitioner. The findings of learned Appellate Court are opposed to record hence cannot be sustained. 27. The contentions of learned counsel for the respondents Nos.1 and 2 tl3at petitioner had not approached the Court of learned Rent Controller with clean hands and petitioner has let out other property to the tenants and has enhanced the rent prior to filing of the ejectment petition, hence petitioner was not entitled to apply for ejectment of respondents Nos.1 and 2 and the need of petitioner was neither genuine nor bona fide. 28. To deal with the above submissions of learned counsel for the respondents Nos.1 and 2, it is suffice to say that for seeking eviction of a tenant from the rented premises, the only requirement of law is the proof of his bona fide need by the landlord, which stands discharged the moment landlord appears in the witness box and makes such statement on oath or in the form of affidavit- in-evidence as prescribed by law, if it remains un-shattered in cross-examination and un-rebutted in the evidence adduced by the opposite party.
---
## Page 7
29. The Expression "Good Faith" has been explained by the Honourable Supreme Court of Pakistan in the case of Mst. Shirin Bai (supra), as under:-- "8. "Good faith" means an honest. Act. Honesty is a state of mind and is capable of proof or disproof only by evidence of conduct. If requirement of landlord is found to be genuine, Rent Controller is bound to order eviction of tenant notwithstanding the fact that he had also made a demand for enhancement of rent or any other demand from the tenant. The expression "good faith" is abstract term not capable of any rigid definition. The ordinary dictionary meaning of the expression "good faith" is honesty of intention and, therefore, what is required under clause (vii) of subsection (2) of section 15 of the Ordinance is that the landlord should have a genuine need of the premises, which should certainly be more than a mere wish or desire. The expression "good faith" has been used in the Ordinance purposely meaning an act performed honestly without fraud, collusion or participation in wrong doing. The words "desire" or "need" have not been used, which would negate the two extreme views which are pleaded in cases of this nature. The expression "good faith" employed in clause (vii) must be interpreted in the light of definition thereof as embodied in section 2(28) of the West Pakistan General Clauses Act, 1956, which provides that "a thing shall be deemed to be done in good faith where it is in fact done honestly, whether it is done negligently or not". Strictly speaking it means honesty and when a person is in occupation of other premises, 'generally speaking he cannot be said to be acting honestly when he asks for another premises unless the premises in his occupation is not sufficient for his need. Mere whim or fancy, wish or convenience of the landlord should not be adequate to demonstrate that the landlord requires the premises in "good faith". He must plead and prove his requirement by sufficient and satisfactory evidence inspiring confidence. It is a state of mind, which may be inferred from circumstances attending to each case and Courts ordinarily accept requirement of landlord without imputing bad faith unless strong circumstances indicate to the contrary.. Right of landlord to claim possession from a tenant is regulated by Rent Controller only _to the extent to examine whether the request of landlord for possession is inspired with "good faith", or is frivolous, or mala fide. Sufficiency or insufficiency of accommodation available with a landlord is a matter of individual taste and discretion with which neither Controller nor the Appellate Authority would ordinarily interfere. All that Controller has to see or the Appellate Authority has to examine is whether the landlord requires the premises in "good faith" for his own occupation or use or for occupation or use of his spouse or any of his children. Expression "require the premises in good…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.