' SADIQ HUSSAIN BHATTI, J.--- The appellant is aggrieved by the Order dated 17-1-2009 passed by Additional Controller of Rents, Clifton Cantonment, Karachi in Ejectment Application No,115 of 2007, whereby the rent application was allowed and the appellant/tenant was directed to vacate the demised premises hand over its vacant and possession to the landlady/applicant within 30 days.
2. Brief facts of the case are that vide agreement dated 18-6-2006, appellant Aamir Waheed was inducted as tenant by the respondent/ landlady Mrs. Haleema Akhtar in respect of Shop No,2, Plot No,17-C, Khayaban-e-Ittehad, Phase II Extension, DHA, Karachi (hereinafter "the demised premises") at a monthly rent of Rs,24,750/-. As per clause 7 of the said agreement, the landlady sent a notice to the tenant/appellant to vacate the demised premises but the tenant/appellant failed to do so.
Therefore, the respondent filed Ejectment Application No,114 of 2007 against the appellant for his ejectment from the demised premises on the ground of personal bona fide requirement of the demised premises and impairment of value of the demised premises due to illegal additions and alteration in the structure. Notices were issued to the appellant/tenant, who filed his written statement denying the averments made in the ejectment application. On the basis of the pleadings of the parties, the Additional Controller of Rents framed the following issues:
(1) Whether the applicant requires the demised shop for her personal bona fide need?
(2) Whether the respondent is defaulter in payment of rent?
(3) What should the order be?
3. After hearing the learned counsel for the parties, the Additional Controller of Rents, Clifton Karachi, vide his impugned Order dated 17-1-2009, allowed the ejectment application and ordered the tenant to vacate the demised premises as stated above. Hence this First Rent Appeal.
4. Before proceeding any further, it may be noted that in the ejectment application ground of default in payment of rent was not taken, however, the Additional Controller of Rents framed Issue No,2 with regard to default in payment of rent. However, neither any arguments were advanced on this point nor on the point of impairment of value of the demised premises due to additions and alteration in the structure. The only point which was urged before the Controller was with regard to personal bona fide need of the landlady. Since this slip will not affect the outcome of this FRA, therefore, the same is ignored in the interest of justice. But it is expected that the Controller will be careful in future.
5. Learned counsel for the appellant mainly contended that the demised premises is a commercial premises and as per section 17(4)(b)(i) of the Cantonments Rent Restriction Act, 1963, the landlord/landlady can seek ejectment of a tenant only when the commercial premises is required for his/her own need and not for the need of, spouse or son/daughter. He also raised doubts about personal need of the landlady due to the fact that her son was employed abroad on lucrative salary and, according to him, it was only a hoax that he would establish a car show room at a place where only five to six cars can be parked. He also contended that the respondent is attorney of the owner and was not entitled to file ejectment application for her personal need of the demised premises. He further contended that the respondent and her witness made contradictory statements regarding personal need of the landlady. In support of his contentions the learned counsel relied on the case of (i) Muhammad Yousuf v. Noor Jahan Bi through Attorney (2000 CLC 1252) and (ii) Ch. Akbar Hussein v. Zehra Bai (2002 SCM R 789).
6. On the other hand, learned counsel for the respondent contended that the respondent is admittedly landlady and wife of the owner and, therefore, she is competent to file the ejectment application on her behalf as well as on behalf of her husband. He further stated that the purpose of the ejectment application was not to establish the son of the landlady/ respondent but the main purpose was to enable the son of the respondent to run business for them in the demised premises and to look after her and her ailing husband. He stated that the son of the landlady/respondent is sufficiently experienced to assist and help his parents. He also contended that it was the prerogative of the landlady to utilize her property in a manner best suited to her own benefit.
7. I have heard the learned counsel for the parties, perused the record and gone through the case- law cited before me.
8. The main question for decision is whether under section 17(4)(b) of the Act a landlord/landlady can get a commercial premises vacated for her use through her son.
9. Section 17(4)(b) of the Act reads as under:---
17. .......................................................................................................
(1)
(2)
(3)
(4) A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession,
(a) in the case of a residential building, if
(i) he requires it, in good faith for his own occupation or for the occupation of any member of his family, and (ii)
(iii)
(b) in the case of a commercial building, if
(i) he requires it in good faith for his own use; and
(ii) Not relevant ...............................
(iii) Not relevant ...............................
10. If section 17(4)(a)(i) and 17(4)(b)(i) of the Act are read in juxtaposition, it would transpire that while a landlord can apply to the Controller for an order directing the tenant to put the landlord in possession of a residential premises if the landlord requires the same for his own occupation or for the occupation of any member of his family but this liberty of requirement of the premises for occupation and use of any member of landlord's family is not available in case of commercial premises. However, the word "his own use" appearing in section 17(4)(b)(i) of the Act has been interpreted by this Court as well as by the apex Court in a number of judgments.
11. In the case of Muhammad Yousuf v. Mrs. Noor Jehan Bi through Attorney (2000 CLC 1252), a learned single Judge of this Court held as under:- "7. With profound respects the above pronouncement of the Honourable Supreme Court appear to be clearly distinguishable and do not support the respondent's case. In Ghulam Mohiuddin's case their Lordships declined to grant leave to appeal, where the petitioner was unable to show any error in the finding of fact recorded by the Courts below to the effect that the bona fide requirement of the respondent's husband stood established. The legal question whether a landlady could seek ejectment of tenant on the ground that of the personal need of her husband was neither raised nor considered. In Muhammad Zaman's case the provisions of section 17(4)(b) of the Cantonment Rent Restriction Act were found applicable because of a finding of fact to the effect that the husband and wife (landlady) intended to start joint business. It goes without saying that if a landlord/landlady intends to start business in the demised premises after ejecting a tenant jointly with a family member or even an outsider, her bona fides cannot be doubted." (Emphasis is supplied).
12. In the case of Ch. Akber Hussain v. Mrs. Zehra Bai (2002 SCM R 789), the landlady admitted in her cross-examination as under:--- "It is correct that I am Pardah-observing lady and I never did any job or business during entire life; and "I have not filed the case for my personal use."
' In such view of the matter, the Hon'ble apex Court held as under:--- "8. In view of the above provisions of section 17(4) and the admission of the landlady it would be advantageous to dilate upon the case-law cited by the learned counsel for the parties. The case of Nek Muhammad (supra) pertains to Sindh Rented Premises Ordinance (XVII of 1979) wherein the ejectment was sought on the ground of personal requirement, and the learned Judge observed as under:--- "It will be significant to note that the Legislature had inserted word 'own' between word 'his' and 'occupation' or 'use' with a purposeful meaning. Every word in a statute is to be given its meaning and no word is to be taken as being redundant. 'Own' when used as an adjective means belonging to oneself, exclusive, individual, particular, peculiar, private and proper according to Corpus Juris Secundum. The words "for his own occupation or use" used in subsection (2)(vii) of section 15 of the Ordinance would simply mean far the exclusive or individual occupation or use of the landlord."
"In the case of Muhammad Yousuf (supra) the learned Single Judge of High Court held that:- "The landlord under Cantonments Rent Restriction Act, 1963, could seek ejectment of tenant from residential building if same was required in good faith by landlord/landlady for his/her own occupation or for occupation of any member of his/her family, but position with commercial premises, would be different. - - Need of spouse, children of landlord/landlady or any other person in respect of commercial premises was irrelevant and it had to be shown that the premises was required by landlord/landlady for his/her own use."
' The case of Col. (Retd.) Dr. Wahaj A. Mirza (supra) is under Cantonments Rent Restriction Act (XI of 1963). In this matter the petitioner approached the High Court through Constitutional petition, which was dismissed, holding that in Constitutional petition the factual controversies with regard to evidence and documents cannot be discussed or dilated upon. However, the learned Judge observed that:--- "The second contention of the learned Advocate for petitioner, that under provisions of section 17(4)(b), respondent No,3 could only seek ejectment of the petitioner on ground of his own personal and bona fide need and not on account of the need of his wife, in my opinion, has great force. It is clear from the wordings of section 17(4)(b) read with section 17 (4)(a)(1) of the said Act, that Legislature deliberately restricted the scope of section 17(4)(b) for purposes of ejectment from commercial premises. In view of this the conclusion of the learned Rent Controller that need of wife, would include respondent's own need, on the basis of case reported in 1976 SCMR 53 is misconceived, as the said case relates to the interpretation of the provisions of West Pakistan Urban Rent Restriction Ordinance, 1959, which are different from Cantonments Rent Act. However, I find that learned Appellate Court also fail in this error of law, but I find from impugned judgment, that the learned Appellate Court also considered the statement of the respondent No,3 on record and arrived at conclusion of fact, that respondent No,3 required the premises for his own use as well as not for exclusive use of his wife. This is finding of fact and if this finding can be sustained on the basis of the evidence adduced by respondent No,3, then, of course it cannot be assailed, by this petition in my opinion."
"So far the provisions of section 17(4) pertain to the commercial premises, Legislature had put definite restriction that landlord or landlady could seek ejectment of the tenant for his or her personal bona fide need. In our opinion, the parties approached the Sindh High Court by way of Constitutional petition, and keeping in view the limited scope of the writ jurisdiction, the same was dismissed with the observations referred to hereinabove.
"The case of Mst. Firdous Sabir (supra) is under Cantonments Rent Restriction Act (XI of 1963), wherein the Court observed that the landlady in her application for ejectment had categorically stated that shop already in her occupation was not sufficient for her requirement and she needed two shops in question for extension of her business. The husband of the landlady after his retirement was looking after the business, which clearly shows that the landlady was already in business and she wanted the expansion of her business, for which she also intended that her husband after retirement would join the business.
9. In the case in hand it is not mentioned that the landlady/respondent herself would do the business, whereas on the contrary she in unequivocal terms stated that she never did any job or business and she did not file the case for her personal use. The provisions of Cantonments Rent Restriction Act, referred to above and the case-law discussed in the above part of the judgment support the contentions of the learned counsel for the petitioner and the Cantonments Rent Restriction Act has completely put restriction that ejectment from the commercial premises could only be made when personal bona fide requirement of landlord or landlady for his or her occupation is proved. The admission of the landlady has clearly shattered her own case and she was not able to prove her bona fide requirements of the demised premises.
13. Thus, the case of Ch. Akber Hussain (supra) is distinguishable on the facts as in that case the landlady in unequivocal terms stated that she had not filed the ejectment application for her personal use. Conversely speaking, she admits that the rent case was filed for ejectment of the tenant for the use of her sons only, who were jobless.
14. In the present case, the scenario is entirely different. The son of the landlady was not a jobless person. Rather, as per the admission of the learned counsel for the appellant, he was employed on a lucrative salary abroad but, as per the landlady, she was calling him back to start business for her in the demised shops so that her son can support them and also look after them. It would be cruel to deny the landlady the assistance of her son in running a business for her in the demised premises and to make her son available for looking after her as well her ailing husband.
15. In the case of Mst. Firdous Sabir v. Haji Mushtaq Ahmed Pervaiz (1994 SCM R 355), the facts were somewhat similar to the case in hand as the landlady required the commercial premises for her use through her husband and niece. A Division Bench of the Hon'ble appeal Court held as under:- "The learned counsel for the respondents next submitted that under section 17(4)(b) a landlord can only seek eviction of a tenant if he requires it in good faith for his own use. He submitted that as the appellant is a teacher in Federal Government Public High School, she cannot do the business herself. She has stated that she had been permitted by the authority to do the business.
Additionally, she has stated that she is doing business through her husband and nieces. P.W.2 Muhammad Sabir, the husband of the appellant, stated that he is looking after the business. He further stated that the present shop in their occupation is not sufficient for their requirement. They intend to install three or four machines. The witnesses were cross-examined by the respondent but they have established their bona fides."
16. Thus, in the above case, the Hon'ble apex Court held that the landlady could get the commercial premises vacated for running her business through her husband and niece. In the case in hand, the landlady in para 4 of her ejectment application in clear terms stated that "the applicant requires the said premises for her own personal bona fide need as she has decided to establish her own business in the premises in question as show-room of motor-cars with the assistance of her son namely Ejaz Yousuf .." She repeated the same stance in her affidavit-in-evidence in para 6. She was subjected to lengthy and elaborate cross-examination but her consistent stance could not be shaken. During cross-examination she admitted the cordial relations with the tenant/appellant but stated that "I filed this case of ejectment for my personal need... I need the demised premises for personal need and my son will conduct his business." When it was put to her that the demised premises is required for the use of her son only, it was refuted by her and she stated that "It is incorrect to say that I need the demised premises for the use of my son only." Thus, there is no doubt that the stance of the landlady regarding need of the demised premises for her own use was consistent and was not shaken in any way.
17. What transpires from above discussion is that though a landlord/landlady cannot evict a tenant from a commercial premises under the Act only for the need of his/her family members but if the landlord/landlady wants to do some business jointly with a family member, or even an outsider, then his/her bona fides could not be doubted.
18. Son of the respondent, who appeared as her witness, also supported the case of the respondent by saying in the cross-examination that "It is incorrect to say that the demised shop is being getting vacated for my use only, rather it is required for the family." It is evident that "family" includes the mother and father as well. It has also come in the evidence that husband of the landlady is paralyzed and is not in a position to do any work or business.
19. In the case of Jehangir Rustam Kakalia through LRs v. Messrs Hashwani Sales and Service (Pvt.)
Ltd. (2002 SCM R 241), a Division Bench of the Hon'ble Supreme Court held as under:- "8. Adverting to the submissions advanced by Mr. R.F. Virjee, Advocate Supreme Court we are of the view, that the respondents being owner and landlord of the demised premises could, not be deprived of their right and interest to use their property in a manner more suited to their requirements. No unreasonable restriction can be placed on the exercise of their right which would offend the fundamental rights guaranteed under Article 23 of the Constitution."
20. Thus, placing of any unreasonable restriction on the respondent/ landlady would tantamount to offending the fundamental rights of the landlady guaranteed under Article 23 of the Constitution. If provisions of section 17(4)(b)(i) of the Act are interpreted in a way that the landlord cannot file ejectment application for eviction of the tenant for using the premises jointly with his family member or any other person, this would amount to negation of the property rights as a pardanashin lady or a critically sick person would be deprived the benefits of section 17(4)(b)(i) of the Act. The authorities quoted above clearly distinguish that where the landlord comes to the Court for eviction of his tenant occupying a commercial premises solely for the use and occupation of any of his/her family members, then he/she would not be entitled to eviction order, however, if the landlord/landlady wishes to get the premises vacated for running his/her own business either by himself/herself or in collaboration/partnership with a family member or any other person, then, if he has proved his personal bona fide need before the Controller, he would be entitled to an eviction order.
21. It was also contended by the learned counsel for the appellant that there is contradiction between statements of the landlady and her son but the learned counsel was unable to show any such contradiction. On the contrary, perusal of the evidence of the landlady and her son clearly show that they are not at variance. Rather they fully support each other on each and every point.
22. So far objection raised by the learned counsel for the petitioner regarding ownership of the demised premises is concerned, suffice it to say that section 2(g) of the Act defines "landlord" to be a person entitled to receive rent. Admittedly, the respondent was "landlord" under above definition and has rightly filed the eviction proceedings against the appellant. It has not been denied that the respondent was receiving the rent from the appellant in respect of the demised premises.
Therefore, this objection is misconceived and is not tenable.
23. It is also stated that the son of the respondent is employed at a lucrative salary abroad and the tenant is being evicted only for letting the demised premises to someone else on increased rent.
Firstly, this suggestion was clearly rejected by the respondent in her cross-examination and even in the ejectment application it has been stated that she does not want increased rent but want the demised property for running her own business through her son. Even otherwise, the remedy in such a situation is available to the appellant/tenant and it has also been admitted that if the same property is being rented out to anyone else, the appellant would have the first preference.
24. In view of the above discussion, I find no merit in the appeal and the impugned Order does not call for any interference by this Court. Therefore, this appeal is dismissed and the appellant is allowed 30 days' time to vacate the demised premises and hand over its vacant peaceful possession to the landlady, subject to payment of rent.