1. This second appeal is directed against the judgments dated 31-1-1976 and dated 8-5-1979 passed by the learned Vth Senior Civil Judge and Rent Controller at Karachi and the IVth Additional District Judge at Karachi respectively in Rent Case No. 621/74 and Rent Appeal No. 121/76 respectively.
2. The brief facts leading to the filing of the above appeal are that the respondent filed an ejectment application on two grounds, namely, reconstruc--tion and the personal requirement. The above application was resisted by the present appellants. However, the learned Rent Controller after recording of the evidence and of hearing of the parties allowed the application on the above two grounds by his aforesaid judgment dated 31-1-1976. The appellants being aggrieved by the above judgment filed Rent Appeal No. 121/76, which has been dismissed by the learned Additional District Judge by his aforesaid judgment dated 8-5-1979. The appellants being aggrieved by the above two judgments has filed the present second appeal.
3. 2.-(a) In support of the above appeal Mr. Muzaffar Ali Khan, learned counsel for the appellants has made the following submissions.
(i) That the respondent had failed to prove that in fact he bona-fidely required the premises in question for reconstruction.
(ii) That the respondent also failed to prove that he bona-fidely required the new proposed building for his personal occupation.
4. Whereas it has been urged by Mr. Ahmad Said Qureshi, learned counsel for the respondent that the conclusions arrived by the two Courts below on the above two grounds are in accord with the evidence on the record and are also in consonance with the law.
(b) Reverting to the first contention of Mr. Muzaffar Ali Khan, learned counsel for the appellants that the respondent had failed to prove that he required the premises bona-fidely for reconstruction, it may be observed that it has been vehemently urged by him that the application was prompted for the reason that the area in question has become a commercial area and that the adjacent buildings to the building in question in fact have been used for commercial purposes, and, therefore, the respondent wishes to put up the above building for letting out for commercial purposes. His further submission was that in the rent application it was averred that the building was in dilapidated condition but this allegation was not proved. From the evidence on the record, it seems that the respondent got the plan approved for reconstruction on 5-12-1972 (Exh. A-6), whereas the present ejectment application was filed on 9-3-1974, i.e. After the lapse of about 15 months, which fact indicates that the respondent had not obtained approval only with the object to eject the appellants and, therefore, did not file ejectment application immediately upon the receipt of the requisite approval to the proposed construction. It is an admitted position that the building is a very old one inasmuch as according to D. W. 1, who appeared for the appellants has deposed that even his grand father was putting up in the building in question. In this view of the matter it cannot be urged that the application filed by the respondent for reconstruction was not bona fide or reasonable.
5. Reverting to the contention that the allegations of the respondent were that the building was in dilapidated condition and was made of stone and mud, which allegations were not proved, it may be observed that the building in question seems to be sufficiently old. There is no legal requirement that the building, which is sought to be reconstructed should be in dilapidated condition. Nor it makes any difference as to whether the building is made of stone and mud or of stone and chuna/cement. Furthermore, since there; is concurrent finding of the two Courts below on the question of reconstruc--tion. I cannot disturb the same unless I come to the conclusion that the same is perverse or contrary to the record, which is not the case.
(c) With reference to the second contention that the respondent has not been able to prove the personal bona fide requirement, it may be pertinent to observe that Mr. Muzaffar Ali Khan has invited my attention to Exhs. A-3 to 5, which are the alleged rent receipts in respect of the flat, which is at present is in occupation of the respondent. According to him the above r rent receipts have been manipulated inasmuch as the same are in the name of the respondent's deceased father Muhammad Siddik Ibrahim and not in the name of the respondent and that admittedly the flat belongs to the respondent's uncle as admitted by the P. W. 2 Abdul Karim Exh. 9 in his cross- examination, who also admitted that the respondent is his cousin being the son of his real uncle. In my view the main question for considera--tion is, as to whether the respondent is putting up in a flat which does not belong to him. It is not the case of the appellant that the respondent is putting up in a flat owned by him. The mere fact that the flat in which the respondent has been residing belongs to one of his uncles would not disentitle him from making an application for ejectment on the ground of personal requirement. In this view of the matter, even if it is to be conceded for the sake of argument that the aforesaid rent receipts Exhs. A-3 to 5, have been manipulated in my view it will not make any difference. Further--more, there is nothing on the record, from which it can be inferred that the above rent receipts are not genuine or have been procured. It is not uncommon that people live in rented premises belonging to their close relations.
(d) It was also urged by Mr. Muzaffar Ali Khan that the respondent has no issue and, therefore, his family comprises of two members, namely, himself and his wife and because of that the respondent cannot justify his occupation over the proposed new building, which will have four floors. On the other hand, it was urged by Mr. Ahmed Said Qureshi, learned counsel for the respondent that the respondent's statement that he was putting up with his wife, mother, one unmarried sister and one unmarried brother has not been challenged, and, therefore, the requirement of the respondent is to be viewed with reference to the number of the family members at present putting up in the flat with him.
6. It may be pertinent to observe that the above rent application was filed on the two grounds as observed hereinabove, namely, for reconstruction and for personal bona fide requirement. If the respondent would have applied only on the ground of reconstruction, . He would have been obliged under section 13(5-B) of the late West Pakistan Urban Rent Restriction Ordinance to provide to the appellants in the proposed newly-constructed building an area not exceeding the area of the old building which is in their occupation. However, the appellants' above right has been negatived by the plea of personal requirement. The question, which arises is, as to whether the learned Rent Controller and the first appellate Court were under obligation to go into the question, as to whether there would be any excess area available in the proposed new building. It was urged by Mr. Ahmad Said Qureshi that there was no such obligation on the pact of the two Courts below to hold an inquiry on the above point. Whereas it was contended by Muzaffar Ali Khan that section 13(5-B) confers a valuable right on a tenant to obtain an equal space in a newly reconstructed building, from the site of which he was ejected on the ground of reconstruction and, therefore, it was mandatory on the part of the two Courts below to go into the above question. In my view, the above contention of Mr. Muzaffar Ali Khan seems to be correct, which also stands to reason. If in the instant case the respondent would have proposed to construct a mult-storeyed building comprising of 25 flats, in that event, it could not have been urged by the respondent that his family, which comprises of altogether 5 members, would require all the 25 flats. In my view if a landlord applies for ejectment on the ground of reconstruction as well as on the ground of personal require- -ment, the Rent Controller as well as the first Appellate Court are obliged, to go into the question, as to whether in the proposed building there would' be any excess area after meeting the need of the landlord which can be made available to the tenant in pursuance of section 13(5-B) of the Ordinance.
(e) It is an admitted position that the two Courts below have not adverted to this aspect and, therefore, the further question, which arises for consideration, is as to whether the case is to be remanded to the Rent Controller or whether this Court should examine the above question in case sufficient material is available on the record. It was urged by Mr. Ahmed Said Qureshi that in view of the fact that the West Pakistan Urban Rent Restriction Ordinance has been repealed by the Sind Rented Premises Ordinance, 1979, and as there is no corresponding provision to subsection (5-B) of section 13 of the repealed Ordinance in the new Ordinance, the learned Rent Controller or the first Appellate Court will have no jurisdiction to go into the above question. In support of his above submission, he has invited my attention to section 27 of the New Ordinance which is the repealing and saving section. It may be observed that under subsection (2) of section 27, it has been provided that all the appeals and such cases before the Controller which are fixed for arguments or judgments shall notwith--standing the repeal thereof be disposed of in accordance with the said old Ordinance. However, a new subsection (3) was added by Sind Rented Premises (Amendment) Ordinance, II of 1980, gazetted on 21-1-1980, providing as follows :- "(3) All other cases instituted under the Ordinance mentioned in sub--section (1) and which immediately before the commencement of this Ordinance were pending before a Controller shall, notwithstanding any orders made otherwise by the Controller, be continued and disposed in accordance with the provisions of this Ordinance and any proceedings taken or orders made in any such cases as aforesaid shall for all purposes have effect as proceedings taken or orders made under this Ordinance."
7. It may be noticed that under the above-quoted subsection (3) the cases which were not covered by subsection (2) of section 27 were deemed to be pending under the new Ordinance and were to be decided as such. In thin view of the matter, if I were to remand and the above case to the learned Rent Controller or to the first appellate Court, they would be obliged to decide the case in accordance with the provisions of the Sind Rented Premises Ordinance, 1979, which 'does not contain any parallel provision to sub--section (5-B) to section 13 of the repealed Ordinance. From it, it must follow that neither the Rent Controller nor the First Appellate Court would be entitled to go into the above question. However, since the above second appeal was filedunder the repealed Ordinance, it is to be decided on the basis of the said repealed Ordinance, and, therefore, I can go into the above question being a legal question. It has been urged by Mr. Muzaffar Ali Khan that this Court may record additional evidence on the above aspect under Order XLI, rule 27, C. P. C. Moreso, as the rent proceedings or the appeals arising therefrom are not subject to strict application of the F provisions of C. P. C. Or of the Evidence Act. Whereas, it has been urged by Mr. Ahmad Said Qureshi that there is sufficient material on the record to examine the above aspect, namely, approved plan and the evidence of the respondent and his witnesses on the question of the number of the respondent's family. In my view, there is no need of recording of any additional evidence as there is sufficient material on the record to consider this aspect of the matter. It may be pertinent to mention that the total area of the plot on which the building in question at present exists is 87 sq. Yards, out of which, 30 sq. Yards have to be excluded to cater for the widening of road. In the balance area of 57 sq. Yards, 7 --ft. On one side has to be left as compulsory open space. According to the approved plan there would be a four storeyed building having three rooms measuring 16 --ft. x 7 ft. 1 --i.e. One room on each of the upper floors and the kitchen, bath-room and store on the ground floor. 1t may be observed that whereas in the plan store, kitchen and bath- room (total area measuring 270-7 Sq. Ft.) is provided for in the ground floor. However, the respondent in his deposition at page 5S of the paper book has deposed contrary to the plan by stating that the store, kitchen and bath are to be provided on the top floor. In my view, the above statement is based on some misunder--standing, but the fact remains that in the approved plan the store, kitchen, and bath room are provided on the ground floor.
(f) It was next urged by Mr. Muzaffar Ali Khan that section 13(3) (a)(i)(a) of the repealed Ordinance includes the requirement of the respondent or of his children or those close relations, who are dependents of the respondent. According to him there is nothing on the record to prove that the mother, brother and the sister were dependents of the respondentand in this view of the matter in the instant case the alleged personal requirement is confined to the requirement of the respondent and his wife, and hence in the proposed new building there will be excess accommodation, which can be made available to the appellants under section 13(5-B) of the old Ordinance. Whereas it has been urged by Mr. Ahmad Said Qureshi that the factum that the respondent is putting up in the same flat with his wife, mother, brother and sister has not been denied, and, therefore, the family in fact comprises of 5 members as a composite unit and, that section 13(3) (i)(a) does not prohibit a landlord from keeping his close relations with himself in the budding from which he seeks ejectment on the ground of the personal requirement. His further submission that a landlord cannot apply for the independent personal requirement of a close relation other than specified in section 13(3) (a)(i)(a) unless he proves that he is a dependent but there is no such requirement in respect of the close relations, who may be living as the members of the landlord's family. In support of his above contention Mr. Ahmad Said Qureshi has referred to two English cases namely, Baker v.
8. Lewis (1947)LRKBD186and the case of Smith v. Penny (1947 L R K B D 230). He has also referred to the case of Mumtaz Humayun v. Mai. Habibur Rehman (PLD 1969 Lah. 886
(i) With reference to the case of Baker v. Lewis, it may be observed that the Court of appeal, while construing the provisions of the Rent and Mortgage Interest Restriction (Amendment) Act, 1933, providing that the landlords may require a property as residence for themselves, held would include the requirement of the two ladies and their nephew living with them though the nephew had no interest in the property. In this connection, it may be pertinent to quote hereinbelow an extract from p. 190 of the judgment, which reads as follows :- "That being so, these two persons, who are the "landlord" within para. (h), require this property as a residence for themselves. Mr. Manningham Buller relied on the fact that the plaintiffs proposed to bring with them to occupy this house other persons who did not come within the precise words of para. (h) and he suggested that these persons could not be taken into consideration when the learned Judge was arriving at his conclusion. It is true that the plaintiffs could not, for example, come within para. (h) if they "required" the dwelling-house for occupation as a residence for, for instance, a nephew or niece, but I think that, if they require the house as a residence for themselves, in deciding the other points which arise in the case the learned Judge ought to take into consideration the fact (if it be a fact) that there are other persons residing with them in their present premises whom they do not wish to turn into the street."
(ii) As regards the case of Smith v. Penny, it may be stated that in the above case the Court of appeal was considering the provisions of the above Act, namely, the Rent and Mortgage Interest Restriction (Amendment) Act, 1933, and particularly the expression "for occupation as residence for himself" while construing the above phrase, it was observed by Scott LJ, "that the family is the unit of our civilization, and to keep family together is of high public importance" In the above case it was held that the requirement of the landlord would include the accommodation needed to accommodate a lady employed for looking after the house and the children as there was separation between the husband and wife.
(iii) Reverting to 1969 Lahore, it will suffice to observe that in the above case it was held by a learned Single Judge that the term "own occupation" will include the requirement of relatives like widowed mother living with the landlord. A distinction was pointed out between the factum of self occupation and the use by other persons as licensee of the landlord along with him.
(g) In my view there is a mark distinction between the requirement of a landlord along with his close relations like widowed mother, unmarried brother and sisters living with him as one unit and the requirement of some of his close dependent relations for independent occupation. If a landlord applies on the ground of his personal requirement and if be has been putting up in addition to his wife with his widowed mother, brothers and sisters as a joint family, he is entitled to press into service the fact that the premises in his occupation is not sufficient to accommodate the family as a whole. But in order to apply for the independent personal requirement of a close relation of the categories referred to hereinabove, he will have to satisfy the Rent Controller that the circumstances are such that the independent persona requirement of the above dependents relations is covered by the expression "for his awn occupation" used in section 13(3) (a)(i)(a) of the repealed Ordinance.
9. In the instant case it is an admitted/proved position that the respondent has been putting up with his wife, widowed mother and one unmarried brother and one unmarried sister. The family comprises of 5 member and, therefore, the respondent's personal requirement is to be reviewed wit reference to the above number of the family members. Since there are on!, three rooms in the proposed building measuring 16-1/2" ft. x 7'f in my view the above accommodation will meet the requirement of the respondent' family as it stands, and, there will be no excess accommodation available for making available under section 13(5-B). Furthermore, it is also a debatable point as to whether an application under section 1.3(5-B) of the repealed Ordinance can be made after the enforcement of the new Ordinance, which has no corresponding provision.
3. In view of the above discussion I do not find any merit in the above appeal and hence the same is dismissed with no order as to costs. However, I grant 4 months' time from today to the appellants to hand over the vacant possession to the respondent.