SADIQ HUSSAIN BHATTI, J.---This FRA is directed against the judgment dated 06.2.2014, passed by Additional Controller of Rents, Clifton Cantonment, Karachi in Rent Case No.74 of 2011, whereby the Rent application was allowed and the Appellant was directed to vacate the demised premises.
2. Brief facts of the case are that the Respondent Mst. Hameeda Nizamuddin filed ejectment application under section 17 of the Cantonments Rent Restriction Act, 1963 ("Act") against the Appellant for his eviction from Shop No.2, Plot No.36-C, A, Cantonment Market, Phase-I, DHA, Karachi ("the Demised Premises") on the ground of personal bona fide need of the demised premises. This ejectment application was granted vide the impugned order and the Appellant/tenant was directed to vacate the demised premises and handover its physical possession to the Respondent/landlady. The Appellant feeling aggrieved, has impugned the ejectment order through present first rent appeal.
3. Learned counsel for the Appellant referred to the cross-examination of the Respondent (available at Page 71) and argued that the rent case was liable to be dismissed as the same was filed malafidely as the demised premises is not required by the landlady/Respondent for her personal use. Learned counsel also drew my attention to Paragraph-4 of the ejectment application and argued that the Respondent pleaded her case for personal requirement of the demised premises in a halfhearted manner. Learned counsel further argued that the impugned order is based on misreading and non-reading of the evidence on record as material portions of the cross-examination of the Respondent has been totally ignored by the trial Court. Learned counsel also submitted that in view of the law laid down by the Honourable Supreme Court in the case of Noor Jehan Bi v. Muhammad Yousaf (2002 SCM R 1933) and Akbar Husain v. Zehra Bai (2002 SCM R 789), the learned trial Court was not justified in allowing the rent case by relying on the case law reported as Muhammad Yousuf v. Noor Jehan Bi (2000 CLC 1952). Learned counsel referred section 17 of the Act and argued that a commercial property can only be got vacated by a landlord/ landlady if the same is required by him/her for his/her own bona fide requirement and not for any of his/her family member.
4. On the other hand, learned counsel for the Respondent fully supported the impugned order and submitted that the Respondent in her averments as well as cross-examination has spoken truth and has not made any false statement. Learned counsel submitted that the Respondent in her cross-examination has clearly stated that her children will do the business, this will be a partnership affair, which is not barred. Learned counsel relied on the case of Aamir Waheed v.
Haleem Akhtar (2013 CLC 622) in support of his contentions.
5. I have heard learned counsel for the parties and have perused the record and the case law relied upon by the counsel for the parties.
6. Before proceeding any further, it will be advantageous to reproduce provisions of section 17(4)
(b) of the Act, which 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. Not relevant ... ... Not relevant ... ... Not relevant ...
7. While provisions of section 17(4) (a)(i) of the Act relate to eviction of tenant from a commercial premises. There is a clear difference between the wording of two provisions as under section 17(4)
(a)(i) of the Act 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 when it comes to eviction of a tenant from a commercial premises under section 17(4)(b)(i) of the Act, this liberty of requirement of the premises for occupation and use of any member of landlord's family is not available and a rent case can be filed only if the landlord/landlady requires the premises A in good faith for his/her own use. In the case of Noor Jehan Bi (supra), the Honourable Supreme Court while dilating upon the expression "own use" has held as under:--
9. It is important to note that under sub-clause (i), clause (b), subsection (4) of section 17 of the Act, 1963 a landlord/landlady competently can apply to the Controller for an order directing the tenant to put him/her in possession of the premises subject-matter of proceedings if he/she requires it in good faith for his/her own use in the case of commercial building. At this very stage, it is important to note that conversely givers in respect of a residential building under section 17 (4)(a)(i) of the Act, 1963 have used expression that he/she (landlord/landlady) requires it in good faith for his/her own occupation or for the occupation of any member of his/her family, he/she can apply to Controller for the ejectment of tenant. Therefore, visible distinction in both the provisions is that for commercial building landlord or landlady can only ask for the ejectment of tenant from the building if he/she requires it for her/his own use. Whereas in respect of residential building such requirement can also be put forwarded in respect other member of his/her family including the husband and son, etc. In Black's Law Dictionary (7th Edition) at page 1130 the word 'own' has been defined as 'to have or possess as property; to have legal title to'
Froth the dictionary meaning of the word 'own no other inference can be drawn except that landlord/landlady can ask for ejectment of the commercial building for his/her own personal use without asking ejectment of the tenant for the use of any other family member in respect of commercial building under section 17(4)(b)(i) of the Act, 1963. Though such strict interpretation of the expression for 'own use' can cause difficulty in some exceptional cases, but Court is bound to interpret the law as it has been legislated and if there is any omission, that cannot be supplied without any cogent reason.
8. In the case of Akbar Hussain (supra), the Honourable Supreme Court has held as under:--
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 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.
9. In the case in hand, the Respondent landlady in her cross-examination stated as under:-- "It is correct that after vacation of the demised premises by the tenant I will transfer it to my children. It is correct that I have not required the demised premises for my own business.
Voluntarily says that I am old age and my children will do the business".
10. In view of the law laid down by the Honourable Supreme Court in the cases of Noor Jehan Bi and Akbar Hussain, the above admission of the Respondent/ landlady completely shatters her case and she was not able to prove that the demised premises was required for her personal use. It has come on record that the Respondent/ landlady is more than 84 years of age and during her long life she has never conducted any business activity. The case would have been on a different pedestal if the landlady had stated that she wanted to start her own business with the help of her sons. So far as the intention to transfer the demised premises to her children is concerned, there is no bar that if the same is occupied by a tenant it cannot be transferred. If the Respondent wishes to transfer the same to her children she can do so.
11. In view of the above discussion, I am of the view that the Respondent No.1 was not able to prove that she requires the demised premises for her own personal use and, therefore, her ejectment application was liable to be dismissed, as the same sought eviction of the tenement on the ground that the demised premises was required by the Respondent for transfer to/ occupation of the children, which is not permissible under the law in respect of a commercial premises.
12. The upshot of the above discussion is that this appeal is allowed. The impugned order is set aside and the rent case filed by the Respondent/landlady is dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.