1996 S C M R 1233
1996 S C M R 1233
[Supreme Court of Pakistan]
Present Ajmal Mian, Sajjad Ali Shah and Saleem Akhtar, JJ
LATIF AHMAD---Appellant
versus
Mst. FARRUKH SULTANA---Respondent
Civil Appeal No.52 of 1993, decided on 9th December, 1993.
(On appeal from the judgment dated 6-10-1992 of the High Court. of Sindh, Karachi, passed in F.R.A. No.546 of 1988).
(a) Sindh Rented Premises Ordinance (XV1Q of 1979)---
----S. 15---Constitution of Pakistan (1973), Art. 185(3)---Ejectment of tenant on ground of personal requirement---Dismissal of ejectment application by Rent Controller---High Court in appeal, however, ordered ejectment of tenant---Validity---Leave to appeal was granted to consider tenant's contention that before filing ejecmtent application, landlord got possession of one shop from her tenant which was divided into two shops and were rented out to two persons.
Haroon Kassam and another v. Azam Suleman Madha PLD 1990 SC 394 ref.
(b) Sindh Rented Premises Ordinance (XVII of 1979)---
----S: 15---Ejectment of tenant on ground of personal requirement---Just before filing ejectment application landlady had got vacated one shop which she divided into two, and rented out the same to two different persons, but she did not mention such fact in her ejectment application nor did she state reasons as to why her son (for whom she required such premises) did not occupy said vacated shop nor any averment was made to the effect that shop in question; was more suitable to the requirement of her son than the one she had obtained possession shortly before filing the ejectment application---Shop which landlady got vacated earlier was admittedly situated in he same market in which shop in question was situated---Landlady although, had the prerogative to have premises of her choice and tenant had no right to challenge such right of landlady, yet it was incumbent upon landlady to have disclosed factum of vacation of shop and then renting out the same by dividing it into two shops and the reason as to why that shop was not suitable for her/her son's requirement particularly keeping in view that said shop and shop in question,, were situated in the same market---No case for personal requirement was thus, made out and Rent Controller had rightly and correctly declined to order ejectment of tenant---High Court was not justified in setting aside order of dismissal of ejectment application and allow the same--Order of High Court whereby ejectment of tenant was ordered was set aside while that of Rent Controller dismissing landlady's ejectment application was restored in circumstances.
Nooruddin and others v. Asghar Ali and others 1986 SCMR 1087; Sabu Mal v. Kika Ram alias Heman Das 1973 SCMR 185; Muhammad Idrees v. Additional District Judge, Lahore and others 1986 SCMR 981; Mrs. Shahnoor Fazal v. Ghulam Akbar Mangi 1987 SCMR 2051 and Ghulam Haider v. Abdul Ghaffar and another 1992 SCMR 1303 ref.
Fakhruddin G. Ebrahim, Senior Advocate Supreme Court with Ch. Iftikhar Ahmad, Advocate Supreme Court and M.A. Ghaury, Advocate-on-Record for Appellant.
S.M. Abbas, Advocate-on-Record for Respondent."
Date of hearing: 9th December, 1993.
JUDGMENT
AJMAL MIAN, J.---This is an appeal with the leave of this Court against the judgment dated 6-10-1992 of a learned Single Judge of the High Court of Sindh passed in F.R.A. No.546 of 1988, filed by the respondent against the judgment dated 25-4-1988 of the learned IXth Senior Civil Judge/Rent Controller. Karachi, in Rent Application No.2220 of 1985, allowing the same by setting aside the above judgment of the Rent Controller dismissing the respondent's above rent application filed on the ground of personal requirement and granting the same. Leave to appeal was granted to consider the contention raised by the learned counsel of the appellant that before the filing of the ejectment application in March. 1981, the respondent got possession of one shop from her tenant in December, 1980, which shop was divided into two shops and were rented out to one Zahid and Rauf.
2. The brief facts are that the appellant was tenant of the respondent in respect of Shops Nos.42 and 43 at Rs.90 per month. It appears that the respondent filed Rent Application No.809 of 1971 on the grounds of default and personal requirement but the same was dismissed in default on 19-12-1974. After that, she filed the present rent application in March, 1981, on the grounds of default for the period commencing from July, 1975, up to the date of filing of the above rent application and the personal requirement of the respondent's two sons.
3. The above rent application was resisted inasmuch as the appellant filed a written statement, wherein it was pleaded that the rent was Rs.60 and that upon harassment caused by the respondent, the appellant was forced to increase the rent to Rs.90 per month. It was further pleaded that the respondent was not entitled in law to charge Rs.90 per month and that she was liable to refund/adjust the excess rent, It was also pleaded that the appellant had been paying rent regularly and had never committed any default. It was further pleaded that the respondent filed an ejectment application against the appellant in 1971 bearing Rent Case No.809 of 1971, which was dismissed on 19-12-1974 by the learned XVII, Civil Judge and Rent Controller, Karachi. Copies of the above rent application with the order were attached to the written statement as Annexures ' A' and ' B' . It was also pleaded that the appellant had not committed default but had deposited the rent up to 30-10-1981 in Miscellaneous Rent Case No. 17 of 1976 in the Court of XII, Senior Civil Judge and Rent Controller, Karachi. It was further pleaded that the respondent's sons did not need the shop as they were having the shops mentioned in para. 6 of the written statement.
4. On the basis of pleadings of the parties, the learned Rent Controller framed three Issues. After recording evidence, decided all the Issues against the respondent. On the question of personal requirement, the learned Rent Controller observed as follows:--
"He has further admitted that the possession of the Shop No.58 was handed over to the said Zahid on 9-12-1980 after getting it vacated from the tenant through Court. He has also admitted that the Shop No.57 was the shop which was vacated by the tenant and it was divided into two shops and one shop was given to Zahid and the other to Mr. Rauf in December, 1980. In the cross-examination of the other son of the applicant namely Muhammad Arif it has come on record that the shop which was given to Zahid was in his possession and he was doing the business of Embroidery before giving it to Zahid for about one and a half year.
I have considered the above evidence brought on record in the light of the case of the applicant and reached to the conclusion that the applicant has failed to prove that the shop in question is required by the applicant for the use and occupation of his two sons because one son of the applicant namely Muhammad Arif had admitted that he has seen doing his business of books in P.E.C.H.S. and the second son Muhammad Asif has admitted that he was doing his business for the Shop No.58 which was given to Zahid. There is no material on record to the effect that why the said shop was vacated by Muhammad Arif and given it to one Zahid either on partnership basis with the applicant or on rent. Moreover, the Shop No.57 'was also rented out to one tenant namely Rauf in December, 1980 although at that time the applicant has served the legal notice Exh. A/2 dated 27-10-1980 that the sons of the applicant require the shop in question for their use and occupation. This is not the case of the applicant that the said Shop No.57 was not suitable to her sons therefore. "
Consequently, the learned Rent Controller dismissed the above rent application.
5. Thereupon, the respondent filed aforesaid F.R.A., which was allowed only on the ground of personal requirement. The contention of the learned counsel of the appellant that just before the filing of the rent application in hand, the respondent had rented out two shops, was repelled by the learned Judge in Chambers as follows:--
"Mere fact that three or four months prior to filing of the eviction application the appellant had rented out two shops in the same building would not deprive the appellant from seeking possession of a particular shop, which she considers as suitable for her requirement. In this connection, reliance is placed on the case reported in PLD 1990 Supreme Court Page No.394, Haroon Kassam and another v. Azam Suleman Madha. In this reported case, which was for the residential premises, it was observed by the Hon'ble Supreme Court that question as to which portion of the building would suit the landlord better must be left to his discretion and there was nothing unreasonable in the landlord's insisting that a particular portion of the building should be made available to him."
Against the above judgment of the High Court, the appellant filed a petition for leave to appeal, which was granted for the above reason.
6. In support of the above appeal, Mr. Fakhruddin G. Ebrahim, learned Senior Advocate Supreme Court appearing for the appellant, has vehemently contended that the respondent had suppressed in her rent application the fact that she had obtained the possession of Shop No.57 which was divided into two shops and which were let out to one Zahid and Rauf, and that the above suppression was fatal. He has further submitted that the learned Judge in Chambers has wrongly applied the ratio decidendi of this Court in the judgment of the case of Haroon Kassam and another v. Azam Suleman Madha (PLD 1990 SC 394).
On the other hand, 'Mr. S.M. Abbas, learned counsel for the respondent, has contended that the above omission to mention the fact that the respondent had obtained the possession of the above shop in December, 1980, could not be fatal to the respondent's above rent application as the respondent was entitled to have the shop of her choice for her sons as admittedly they were running business in rented shops.
7. Mr. Fakhruddin G. Ebrahim, in furtherance. of his above first submission, has invited our attention to the following admission on the part of P.W.1 Muhammad Arif, one of the sons of the respondent, for whose benefit the respondent sought the ejectment:-
"It is correct that possession of the said Shop No.58 was handed over to the said Zahid on 9-12-1980. It is correct that the Civil Suit No.2011/84 was filed on 3-6-1984. The said Shop No.58 was got vacated, therefore (illegible) before giving it to the said Zahid. The Shop No.57 is on rent with Mr. Rauf. He is the tenant of the applicant. It is correct that there was one shop which was vacated by the tenant and therefore, the same was divided into two, one was given to Zahid and the second to Mr. Rauf in December, 1980. The tenant of the said one shop was Zamir. I do not remetfber the case No. and the year. It is not correct that Zamir was doing his business in the said shop in the name and style of Amir and Sons Cloth Store. I do not know if the ground of personal requirement was also there in the case against Zamir."
8. It is an admitted position that the respondent in her rent application has not stated anything about obtaining the possession of the above shop and dividing the same into two shops and letting out the same to Zahid and Rauf, nor she has stated the reason as to why her sons did not occupy the above shop which was vacated about less than three months prior to the filing of the above rent application, nor any averment was made to the effect that the suit shop is more suitable as to the requirement of respondent's sons than the one of which she had obtained possession in December, 1980. Admittedly the above shop of which the respondent had obtained possession is situated in the same market in which the suit shops are situated.
9. It is true that it is the prerogative of a landlord to have the premises of his choice and a tenant has no right to challenge the above right of the landlord. In this regard, reference may be made to the case of Nooruddin and others v. Asghar Ali and others (1986 SCMR 1087), the case of Sabu Mal v. Kika Ram alias Heman Das (1973 SCMR 185) and the case of Muhammad Idrees v. Additional District Judge, Lahore and others (1986 SCMR 981), besides the case of Haroom Kassam and another v. Azam Suleman Madha (supra) referred to in the judgment under appeal. However, the above cases are not applicable to the case in hand. Since the respondent had obtained the possession of the aforesaid shops in December, 1980, just before the filing of the rent application in March, 1981, and that after dividing the above shop into two shops, she had let out the same to Zahid and Rauf, it was incumbent on the respondent to have disclosed the above fact in the rent application and the reason as to why the above shop was not suitable for the personal use of her sons particularly keeping in view that the above shop and the suit shops are situated in the same market. The above facts have been brought out in the cross-examination, nor she has given any plausible explanation as to why she did not prosecute her above Rent Application No.809 of 1971 in which the ground of personal requirement was also pleaded and which was dismissed for non-prosecution on 9-12-1974. Mr. Fakhruddin G. Ebrahim has referred to the judgment of this Court in the case of Mrs. Shahnoor Fazal v. Ghulam Akbar Mangi (.1987 SCMR 2051), in which this Court while declining leave to appeal against the judgment of a learned Single Judge of the High Court of Sindh, observed as follows as to the effect of not pleading as to why the vacant flat was not sufficient for the requirement of the landlord:--
"The learned counsel for the petitioner was unable to convince us as to how in the absence of a specific pleading as to the vacant premises not being sufficient for her needs she could seek ejectment of the respondent from the disputed premises. Accordingly, the order of the High Court is unexceptionable. " '
The above judgment was referred to in the subsequent judgment in the case of Ghulam Haider v. Abdul Ghaffar and another (1992 SCMR 1303).
10. We are inclined to hold that the learned Rent Controller had declined the respondent's above rent application on the ground of personal requirement for good reasons as is evident from the relevant portion of the judgment quoted hereinabove. The above reasons have not been met by the learned Judge in Chambers but he was impressed by the ' fact that the respondent had the prerogative to select the shop of her choice. As pointed out hereinabove, there cannot be any cavil with the above legal proposition but in the instant case, the omission to plead and to explain as to why the shop in which the respondent had obtained possession in December, 1980, before filing of the above rent case in March, 1981, was not suitable for the respondent's sons' requirement, was fatal.
11. The upshot of the above discussion is that we allow the above appeal, set aside the judgment under appeal of the learned Judge in Chambers and restore the judgment of the learned Rent Controller dismissing the respondent's above rent application. However, there will be no order as to costs.
A.A./L-87/S Appeal accepted.
[Supreme Court of Pakistan]
Present Ajmal Mian, Sajjad Ali Shah and Saleem Akhtar, JJ
LATIF AHMAD---Appellant
versus
Mst. FARRUKH SULTANA---Respondent
Civil Appeal No.52 of 1993, decided on 9th December, 1993.
(On appeal from the judgment dated 6-10-1992 of the High Court. of Sindh, Karachi, passed in F.R.A. No.546 of 1988).
(a) Sindh Rented Premises Ordinance (XV1Q of 1979)---
----S. 15---Constitution of Pakistan (1973), Art. 185(3)---Ejectment of tenant on ground of personal requirement---Dismissal of ejectment application by Rent Controller---High Court in appeal, however, ordered ejectment of tenant---Validity---Leave to appeal was granted to consider tenant's contention that before filing ejecmtent application, landlord got possession of one shop from her tenant which was divided into two shops and were rented out to two persons.
Haroon Kassam and another v. Azam Suleman Madha PLD 1990 SC 394 ref.
(b) Sindh Rented Premises Ordinance (XVII of 1979)---
----S: 15---Ejectment of tenant on ground of personal requirement---Just before filing ejectment application landlady had got vacated one shop which she divided into two, and rented out the same to two different persons, but she did not mention such fact in her ejectment application nor did she state reasons as to why her son (for whom she required such premises) did not occupy said vacated shop nor any averment was made to the effect that shop in question; was more suitable to the requirement of her son than the one she had obtained possession shortly before filing the ejectment application---Shop which landlady got vacated earlier was admittedly situated in he same market in which shop in question was situated---Landlady although, had the prerogative to have premises of her choice and tenant had no right to challenge such right of landlady, yet it was incumbent upon landlady to have disclosed factum of vacation of shop and then renting out the same by dividing it into two shops and the reason as to why that shop was not suitable for her/her son's requirement particularly keeping in view that said shop and shop in question,, were situated in the same market---No case for personal requirement was thus, made out and Rent Controller had rightly and correctly declined to order ejectment of tenant---High Court was not justified in setting aside order of dismissal of ejectment application and allow the same--Order of High Court whereby ejectment of tenant was ordered was set aside while that of Rent Controller dismissing landlady's ejectment application was restored in circumstances.
Nooruddin and others v. Asghar Ali and others 1986 SCMR 1087; Sabu Mal v. Kika Ram alias Heman Das 1973 SCMR 185; Muhammad Idrees v. Additional District Judge, Lahore and others 1986 SCMR 981; Mrs. Shahnoor Fazal v. Ghulam Akbar Mangi 1987 SCMR 2051 and Ghulam Haider v. Abdul Ghaffar and another 1992 SCMR 1303 ref.
Fakhruddin G. Ebrahim, Senior Advocate Supreme Court with Ch. Iftikhar Ahmad, Advocate Supreme Court and M.A. Ghaury, Advocate-on-Record for Appellant.
S.M. Abbas, Advocate-on-Record for Respondent."
Date of hearing: 9th December, 1993.
JUDGMENT
AJMAL MIAN, J.---This is an appeal with the leave of this Court against the judgment dated 6-10-1992 of a learned Single Judge of the High Court of Sindh passed in F.R.A. No.546 of 1988, filed by the respondent against the judgment dated 25-4-1988 of the learned IXth Senior Civil Judge/Rent Controller. Karachi, in Rent Application No.2220 of 1985, allowing the same by setting aside the above judgment of the Rent Controller dismissing the respondent's above rent application filed on the ground of personal requirement and granting the same. Leave to appeal was granted to consider the contention raised by the learned counsel of the appellant that before the filing of the ejectment application in March. 1981, the respondent got possession of one shop from her tenant in December, 1980, which shop was divided into two shops and were rented out to one Zahid and Rauf.
2. The brief facts are that the appellant was tenant of the respondent in respect of Shops Nos.42 and 43 at Rs.90 per month. It appears that the respondent filed Rent Application No.809 of 1971 on the grounds of default and personal requirement but the same was dismissed in default on 19-12-1974. After that, she filed the present rent application in March, 1981, on the grounds of default for the period commencing from July, 1975, up to the date of filing of the above rent application and the personal requirement of the respondent's two sons.
3. The above rent application was resisted inasmuch as the appellant filed a written statement, wherein it was pleaded that the rent was Rs.60 and that upon harassment caused by the respondent, the appellant was forced to increase the rent to Rs.90 per month. It was further pleaded that the respondent was not entitled in law to charge Rs.90 per month and that she was liable to refund/adjust the excess rent, It was also pleaded that the appellant had been paying rent regularly and had never committed any default. It was further pleaded that the respondent filed an ejectment application against the appellant in 1971 bearing Rent Case No.809 of 1971, which was dismissed on 19-12-1974 by the learned XVII, Civil Judge and Rent Controller, Karachi. Copies of the above rent application with the order were attached to the written statement as Annexures ' A' and ' B' . It was also pleaded that the appellant had not committed default but had deposited the rent up to 30-10-1981 in Miscellaneous Rent Case No. 17 of 1976 in the Court of XII, Senior Civil Judge and Rent Controller, Karachi. It was further pleaded that the respondent's sons did not need the shop as they were having the shops mentioned in para. 6 of the written statement.
4. On the basis of pleadings of the parties, the learned Rent Controller framed three Issues. After recording evidence, decided all the Issues against the respondent. On the question of personal requirement, the learned Rent Controller observed as follows:--
"He has further admitted that the possession of the Shop No.58 was handed over to the said Zahid on 9-12-1980 after getting it vacated from the tenant through Court. He has also admitted that the Shop No.57 was the shop which was vacated by the tenant and it was divided into two shops and one shop was given to Zahid and the other to Mr. Rauf in December, 1980. In the cross-examination of the other son of the applicant namely Muhammad Arif it has come on record that the shop which was given to Zahid was in his possession and he was doing the business of Embroidery before giving it to Zahid for about one and a half year.
I have considered the above evidence brought on record in the light of the case of the applicant and reached to the conclusion that the applicant has failed to prove that the shop in question is required by the applicant for the use and occupation of his two sons because one son of the applicant namely Muhammad Arif had admitted that he has seen doing his business of books in P.E.C.H.S. and the second son Muhammad Asif has admitted that he was doing his business for the Shop No.58 which was given to Zahid. There is no material on record to the effect that why the said shop was vacated by Muhammad Arif and given it to one Zahid either on partnership basis with the applicant or on rent. Moreover, the Shop No.57 'was also rented out to one tenant namely Rauf in December, 1980 although at that time the applicant has served the legal notice Exh. A/2 dated 27-10-1980 that the sons of the applicant require the shop in question for their use and occupation. This is not the case of the applicant that the said Shop No.57 was not suitable to her sons therefore. "
Consequently, the learned Rent Controller dismissed the above rent application.
5. Thereupon, the respondent filed aforesaid F.R.A., which was allowed only on the ground of personal requirement. The contention of the learned counsel of the appellant that just before the filing of the rent application in hand, the respondent had rented out two shops, was repelled by the learned Judge in Chambers as follows:--
"Mere fact that three or four months prior to filing of the eviction application the appellant had rented out two shops in the same building would not deprive the appellant from seeking possession of a particular shop, which she considers as suitable for her requirement. In this connection, reliance is placed on the case reported in PLD 1990 Supreme Court Page No.394, Haroon Kassam and another v. Azam Suleman Madha. In this reported case, which was for the residential premises, it was observed by the Hon'ble Supreme Court that question as to which portion of the building would suit the landlord better must be left to his discretion and there was nothing unreasonable in the landlord's insisting that a particular portion of the building should be made available to him."
Against the above judgment of the High Court, the appellant filed a petition for leave to appeal, which was granted for the above reason.
6. In support of the above appeal, Mr. Fakhruddin G. Ebrahim, learned Senior Advocate Supreme Court appearing for the appellant, has vehemently contended that the respondent had suppressed in her rent application the fact that she had obtained the possession of Shop No.57 which was divided into two shops and which were let out to one Zahid and Rauf, and that the above suppression was fatal. He has further submitted that the learned Judge in Chambers has wrongly applied the ratio decidendi of this Court in the judgment of the case of Haroon Kassam and another v. Azam Suleman Madha (PLD 1990 SC 394).
On the other hand, 'Mr. S.M. Abbas, learned counsel for the respondent, has contended that the above omission to mention the fact that the respondent had obtained the possession of the above shop in December, 1980, could not be fatal to the respondent's above rent application as the respondent was entitled to have the shop of her choice for her sons as admittedly they were running business in rented shops.
7. Mr. Fakhruddin G. Ebrahim, in furtherance. of his above first submission, has invited our attention to the following admission on the part of P.W.1 Muhammad Arif, one of the sons of the respondent, for whose benefit the respondent sought the ejectment:-
"It is correct that possession of the said Shop No.58 was handed over to the said Zahid on 9-12-1980. It is correct that the Civil Suit No.2011/84 was filed on 3-6-1984. The said Shop No.58 was got vacated, therefore (illegible) before giving it to the said Zahid. The Shop No.57 is on rent with Mr. Rauf. He is the tenant of the applicant. It is correct that there was one shop which was vacated by the tenant and therefore, the same was divided into two, one was given to Zahid and the second to Mr. Rauf in December, 1980. The tenant of the said one shop was Zamir. I do not remetfber the case No. and the year. It is not correct that Zamir was doing his business in the said shop in the name and style of Amir and Sons Cloth Store. I do not know if the ground of personal requirement was also there in the case against Zamir."
8. It is an admitted position that the respondent in her rent application has not stated anything about obtaining the possession of the above shop and dividing the same into two shops and letting out the same to Zahid and Rauf, nor she has stated the reason as to why her sons did not occupy the above shop which was vacated about less than three months prior to the filing of the above rent application, nor any averment was made to the effect that the suit shop is more suitable as to the requirement of respondent's sons than the one of which she had obtained possession in December, 1980. Admittedly the above shop of which the respondent had obtained possession is situated in the same market in which the suit shops are situated.
9. It is true that it is the prerogative of a landlord to have the premises of his choice and a tenant has no right to challenge the above right of the landlord. In this regard, reference may be made to the case of Nooruddin and others v. Asghar Ali and others (1986 SCMR 1087), the case of Sabu Mal v. Kika Ram alias Heman Das (1973 SCMR 185) and the case of Muhammad Idrees v. Additional District Judge, Lahore and others (1986 SCMR 981), besides the case of Haroom Kassam and another v. Azam Suleman Madha (supra) referred to in the judgment under appeal. However, the above cases are not applicable to the case in hand. Since the respondent had obtained the possession of the aforesaid shops in December, 1980, just before the filing of the rent application in March, 1981, and that after dividing the above shop into two shops, she had let out the same to Zahid and Rauf, it was incumbent on the respondent to have disclosed the above fact in the rent application and the reason as to why the above shop was not suitable for the personal use of her sons particularly keeping in view that the above shop and the suit shops are situated in the same market. The above facts have been brought out in the cross-examination, nor she has given any plausible explanation as to why she did not prosecute her above Rent Application No.809 of 1971 in which the ground of personal requirement was also pleaded and which was dismissed for non-prosecution on 9-12-1974. Mr. Fakhruddin G. Ebrahim has referred to the judgment of this Court in the case of Mrs. Shahnoor Fazal v. Ghulam Akbar Mangi (.1987 SCMR 2051), in which this Court while declining leave to appeal against the judgment of a learned Single Judge of the High Court of Sindh, observed as follows as to the effect of not pleading as to why the vacant flat was not sufficient for the requirement of the landlord:--
"The learned counsel for the petitioner was unable to convince us as to how in the absence of a specific pleading as to the vacant premises not being sufficient for her needs she could seek ejectment of the respondent from the disputed premises. Accordingly, the order of the High Court is unexceptionable. " '
The above judgment was referred to in the subsequent judgment in the case of Ghulam Haider v. Abdul Ghaffar and another (1992 SCMR 1303).
10. We are inclined to hold that the learned Rent Controller had declined the respondent's above rent application on the ground of personal requirement for good reasons as is evident from the relevant portion of the judgment quoted hereinabove. The above reasons have not been met by the learned Judge in Chambers but he was impressed by the ' fact that the respondent had the prerogative to select the shop of her choice. As pointed out hereinabove, there cannot be any cavil with the above legal proposition but in the instant case, the omission to plead and to explain as to why the shop in which the respondent had obtained possession in December, 1980, before filing of the above rent case in March, 1981, was not suitable for the respondent's sons' requirement, was fatal.
11. The upshot of the above discussion is that we allow the above appeal, set aside the judgment under appeal of the learned Judge in Chambers and restore the judgment of the learned Rent Controller dismissing the respondent's above rent application. However, there will be no order as to costs.
A.A./L-87/S Appeal accepted.
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