1. This first appeal is directed against the order dated 13-10-1980 passed by the learned Rent Controller VII, Karachi in Rent Case No. 906/75.
2. The brief facts leading to the filing of the above appeal are that Mirza Abdullab, father of the present respondent filed an Application on 21-2-1976, namely, Rent Case No. 909/76 for ejectment on two grounds, namely, default and his personal requirement, the requirement of his daughter Mst. Saeeda Khanum and his brother who had come from East Pakistan and was living with him.
3. The above application was resisted by the appellant and it was averred by him that he had paid the rent for the months of September, October 1975 in respect of which no rent receipt was issued by Mirza Abdullah. It was also denied that the respondent required the premises bona fidely for his personal requirement. The learned Rent Controller, on the basis of the pleadings framed two issues in respect of default and personal requirement. It seems that during the pendency of the above rent case Mirza Abdullah expired and the respondent being the sole legal heir was brought on record. In support of the application the respondent examined herself and two witnesses i.e. her son Suleman Khan and one Abdul Samad, whereas the appellant examined himself and one Muhammad Tahir his nephew. The learned Rent Controller by his order allowed the above application on both the grounds. The appellant being aggrieved by the above order has filed the present first appeal.
4. 2.-{a) In support of the above appeal Mr. Shaikh Muhammad Usman, learned counsel for the appellant has made the following submissions "(1) That the finding of the learned Rent Controller that there was default in payment of rent for the months of September and October, 1975 is not sustainable.
(ii) That the application could not have been granted on the ground of personal requirement as the requirement of late Mirza Abdullah grandsons and his brother were not covered by section 13(3) of late West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as the Ordinance)."
(b) On the other hand, Mr: R. H. Farooqui, learned counsel for the respondent has urged that the finding on the question of default is in accord with the evidence on record and that the application was rightly granted on the ground of personal requirement as the requirement of the respondent being the daughter was covered by section 13(3).
(c) Reverting to the first contention of Mr. Usman that the finding of the learned Rent Controller on the question of default cannot be sustained, it maybe pertinent to observe that he has referred to Exh. nil which is a counterfoil of a money order which was sent by the appellant on 9-12-1975 to late Mirza Abdullah with the remark that the rent for the months of September and October was paid but no receipt was issued and that he was remitting rent for the month of November through the above money order with the request that the receipt may be issued for the above three months.
5. On the other band Mr. R. H. Farooqui has invited my attention to Exh. 7 which is the rent receipt book containing counter-foils in respect of the receipts issued which indicate that the last rent receipt issued in favour of the appellant was for the month of August, 1975 which contained the signature of the appellant. In my view, the finding of the learned Rent Controller that the appellant has failed to prove the payment for the months of September and October, 1975 is in consonance with law inasmuch as the burden of proof that the rent for the above two months was paid was on the appellant which he failed to discharge. It may be pertinent to observe that prior to sending of the money order on 9-12-1975 the appellant did not send any letter or notice calling upon late Mirza Abdullah to issue receipt for the above two months in respect of which the appellant had allegedly paid.
6. It may be pertinent to observe that the learned Rent Controller on the basis of the tenancy agreement Exh. 6 has held that the appellant had failed to pay rent within 15 days from the due date under the above tenancy agreement. The above view found favour with the learned Rent Controller seems to be directly in conflict with the view taken by the Hon'ble Supreme Court in the case of Muhammad Yousuf v. Abdullah PLD 1980 SC 298in which inter alia it was held that upon the expiry of the period mentioned in the tenancy agreement, the tenant becomes a statutory tenant and the terms and conditions contained in the tenancy agreement, no longer remain enforceable. However, this would not make any difference on the question of default as the present rent application was fixed on 21-2-1976 by which time 60 days period had already expired from the due date for the payment of rent for the months of September and October. In other words the appellant was a defaulter within the meaning of section 13(2). In this view of the matter the finding on the question of default cannot be disturbed.
(d) With reference to the second contention of Mr. Usman that the original application filed by late Mirza Abdullah not only covered his own personal requirement but also the personal requirement of grandchildren aid the personal requirement of his brother, who had allegedly come from East Pakistan, it may be pertinent to refer to paragraph 4 of the application which reads as follows :- "That the applicant is an old man of about 90 years and is living with her daughter Mst. Saeeda Khanum in the adjoining house. His daughter has three grown-up, children and her two sons have been married recently. Moreover applicants brother has come from East Pakistan and it is also residing in the same house with his family and is sleeping in the open roof with his children.. The applicant therefore requires the premises in occupation of the opponent for personal occupation and for his children."
7. It may be noticed that in the above paragraph late Mirza Abdullah had stated that he needed the house for his own personal requirement and also for his daughter, namely, Mrs. Saeeda Khanum, the present respondent and three grandsons, two of whom were married recently.
8. It has been urged by Mr. R. H. Farooqi that the death of late Mirza Abdullah during the pendency of the rent application has not in any way affected the ground of personal requirement as admittedly under section 13(3)(a)(i)(a) the requirement of the landlord's children is included. He has referred to the case of Abdul Hai v. Mrs. Riaz Begum and 9 others (1979 SCMR 372the case of Mst. Jamila Latif v. Ghulam Yazdani Khan and others (1981 SCMR 637and the case of Tahirall v. Masooda Begum and 4 others (1980 CLC 1332 On the other hand, Shaikh Usman has referred to the case of Muhammad Zahir v. Ch. Shah Muhammad (PLD 1980 Lah. 125)
(1) With reference to 1979 SCMR, it may be observed that the Supreme Court while dismissing the petitioner for leave rejected the contention of the opponent that after the death of the landlord, ejectment application lost efficacy inasmuch as the son for whose use he wanted the shop to be vacated would be deemed to have come into possession of the shop of his late father. It was held that the deceased landlord had large family, out of them three were grown-up sons, two of whom were working with the deceased, whereas the third son was unemployed for whose benefit the application for ejectment was filed. In the background of the above facts, it was held that the Courts below including the High Court rightly granted the application of the deceased landlord on the ground of personal requirement.
(ii) Reverting to 1981 SCMR 637, it will suffice to observe that in the above case also the Supreme Court while dismissing the petition for leave observed that the application for ejectment filed by the landlady for her own requirement and also for the requirement for her children would not be affected by the death of the landlady during the pendency of the application.
(iii) As regards 1980 CLC 1332, it may be observed that Zaffar Hussain Mirza (as he then was) while constructing the provisions of section 13(3)(i)(a) of the Ordinance observed that the above provision has received a liberal interpretation as to include not only the need of the family of the landlord, the dependents and persons essential for such occupation, but including better and healthy accommodation for the landlord. Reliance was placed on the case of Adamali Hassanali v.
9. Mst. Rubab Bai and Adamall Hassanall v. Rubab Bal PLD 1967 Kar. 437 respectively.
(iv) Reverting to the case reported in PLD 1980 Lab. 125, it will suffice to observe that the learned Single Judge of Lahore High Court while construing the provisions of section 13(3Ka)(i)(a) of the Ordinance held that the word `children' does not include grandchildren."
(e) There cannot be any cavil to the above proposition. However, in the instant case, as pointed out hereinabove, the personal requirement of late Mirza Abdullah included the requirement of his daughter, namely, the present respondent. The respondent being the daughter is covered by the word `children' employed in section 13(a)(i)(a). In this view of the matter the learned Rent Controller would examine the personal requirement of the present respondent who was brought on record as the sole legal heir of late Mirza Abdullah. According to the evidence produced by the respondent she had three sons, two daughter-in-laws, four grandsons and two grand--daughters.
10. Since the requirement of the respondent includes the requirement of her sons in terms of the above provision the learned Rent Controller could arrive at a finding that the respondent was able to prove her personal bona fide requirement. In my view if married sons are putting up with the landlord, the Rent Controller is entitled to take -into consideration the requirements of the married sons or daughters and while doing so, he is bound to take into consideration as to the number of children of the married sons or the married daughters if any. A landlord may not be entitled to apply for the requirement of his grand children if he has no surviving child, as the word used in the section is 'children'. But while considering the requirement of a landlord's children, as pointed on hereinabove the learned Rent Controller will have to take into consideration the requirement of the children's children, who may be putting up with their parents. The finding of the learned Rent Controller on the question of personal requirement seems to be in accord with law and does not call for interference. The appellant was unable to shake the respondent's evidence.
3. For the foregoing reasons the above appeal does not merit and, therefore, it is dismissed but there will be no order as to costs. However, I grant 4 months to the appellant on the condition that in case he fails to vacate the premises on the expiry of the above period the Rent Controller shall issue writ of ejectment without any notice to the appe3ant. Further--more, the appellant shall continue to deposit rent in terms of the Rent Controller's order till the expiry of the above period of 4 months.