1. ' ZULFIQAR AHMAD KHAN, J.---The instant constitutional petition finds its roots in the orders of the Rent Controller dated 31-10-2007 where the application for the landlord (respondent No,1) was dismissed for ejectment of the tenant from a shop located on the ground floor of Zainub Market in Saddar Karachi where on all the grounds (default, sub-letting, alteration and bona fide personal use by the landlord), the trial court gave negative findings. This order was challenged in F.R.A.
2. 219/2007 where by Judgment dated 29-4-2009, appeal was allowed after giving cogent reasoning to all the issues and the following point of determinations:
(a) Whether there is misreading of available evidence in respect of default and personal bona fide need?
(b) Whether the Order passed by the learned Rent Controller requires any interference by this forum in its appellate jurisdiction?
3. A look at the impugned judgment using the litmus test of the Supreme Court's judgment prescribed in the case reported as 2001 SCM R 328, where the apex Court very eloquently laid down the dictum as to the circumstances in which petitions arising from rent (FRA) judgments can only be entertained in High Court's writ jurisdiction if in the impugned order has been patently witnessed
(1) non-reading/ misreading of evidence (2) an erroneous assumption, (3) misapplication of law,
(4) excess or abuse of jurisdiction, and (5) arbitrary exercise of power. In the case at hand I do not see any of the these windows open to this court for interference in the impugned judgment, rather to me, the only question urged in this writ application that merit answering is the one that was verbally made by the learned counsel of the petitioner where he stated that the landlord having died during the pendency of these proceedings, the right to sue did not survive to the legal representatives, and in particular when the legal heirs of the landlord are only females, thus there is no question that these females would need this commercial space for their use instead of the personal bona fide claim of the deceased father (husband).
4. This argument made on behalf of the petitioner (tenant) is based on the Roman maxim "actio personalis moritur cum persona" which means that a personal right of action dies with the person.
5. It is contended that the requirement of the premises, being personal to the deceased who made the application for eviction, the cause of action for continuing such a personal action does not survive for his legal representatives.
6. Of specific reference is section 2(g) of the Sindh Rented Premises Ordinance, 1979, which defines personal use to mean the use of the premises by the owner thereof or his wife (or husband) son or daughter. Also relevant is the language of clause-vii of subsection (2) of section 15 of SRPO, which provides that the Rent Controller shall make an order directing the tenant to put the landlord in possession of the premises within such period as may be specified in his order, if he is satisfied that the landlord requires the premises in good faith for his own occupation or use or for the occupation or use of his spouse or any of his children. A combined reading of section 2(g) and section 15(2)(vii) makes it very clear that SRPO treats the landlord and his spouse or his son or daughter as 'one unit', and to be satisfied to handover the possession to the landlord on the ground of personal bona fide use, there is no requirement to breakdown the solidarity and integrity of this family unit and to consider the individual needs of the landlord's wife, sons or daughters.
7. ' As evident from the foregoing, the law permits eviction of the tenant for the requirement of the landlord for the bona fide use of himself and other members of his family then the requirement is alive for both of the landlord and the members of his family, thus on his death, the right to sue did survive to the members of the family of the deceased landlord. I therefore, do not concede to the views of the learned counsel for the petitioner that the requirement of the use of the members of the family of the deceased ceased to be the requirement of the members of his family on his death. The law is very clear, after the death of the landlord, member of his family will take his/her place and they are fully competent to continue the suit for eviction initiated by the landlord for his occupation and for the occupation of the surviving members of his family as SPRO clearly provides that the landlord to apply to the Controller for an order directing the tenant to put him in possession of the tenanted property, if he requires the property in good faith for the occupation or use of himself or any member of his family being his wife (or husband), sons or daughters. It is evident that the law has Gender neutrality as it does not discriminate a female family members form the male family members (or vice versa), irrespective of the fact that the tenanted property is either residential or commercial.
8. ' At this juncture, I would also like to address the statement of the counsel for the petitioner that since the surviving family member are only females, therefore, there is no need to them for the commercial property belonging to deceased landlord. It seems that the learned counsel has no regard to Article 25(1) of the Constitution which provide that all citizens are equal before law and are entitled to equal protection of law, and to Clause (2) of the said Article which requires that there shall be no discrimination amongst the citizens of Pakistan on the basis of sex. It is also sad to note that while the counsel seem to have no regard to the principle of equality between male and female enshrined by the Constitution, the counsel failed to remember that our first Ummahat ul Momineen, Syeda Khadijatul-Kubra (RATU) was a businesswomen and she was very the first person who accepted Islam. Thus our religion places emphasis on ladies who take commerce as their source of earning. Therefore these assertions of the counsel merely reflect his personal thought and have no connectivity with law or our traditions.
9. ' Having vented the aforesaid contention, now I wish to revisit to the question of death of the landlord in the instant proceedings. Studies dictate that it is always a question of fact whether the right to sue in a given case survives to the heirs or not. This, as we know, depends on the consideration as to whether the relief sought can be availed by the legal representatives or not.
10. Depending on the facts and circumstances of the case, it may be a different matter that in any particular case the sole ground on which the eviction was sought may be glued entirely personal to the landlord, or alternately there may be circumstances of such a nature as personal bona fide need would survive his (her) death. Of relevance at this juncture is section 306 of the Succession Act, 1925 under which all demands whatsoever and all rights to prosecute or defend any action or special proceeding existing in favour of or against a person at the time of his decease, survive to and against his executors or administrators except causes of action for defamation and assault, or other personal injuries not causing the death of the party and except also cases "where, after the death of the party, the relief sought could not be enjoyed" or granting it would be nugatory. As it could be seen, the above provision of Succession Act does not restrict that right of enjoyment of tenanted property on the ground of bona fide use would die with the death of the claimant.
11. ' Reference also be made to Sub-clause (ii) of Rule 4 of Order XXII, C.P.C. Which provides that when a sole defendant or sole surviving defendant dies, the right to sue survives his legal representatives who are brought on record and who may make any defence appropriate to his character as legal representatives of the deceased defendant. In other words, the heirs and the legal representatives could urge all contentions which the deceased could have urged except only those which were personal to the deceased, thus to me the bona fide needs contention of the deceased would be survived by his legal heirs in the instant case.
12. ' Be that as it may, while question of facts cannot be entertained in the instant writ jurisdiction, however to rest the assertions of the learned counsel for the petitioner, guidance in such matters can be taken from the following citations:
(a) M. Siddique Butt v. ADJ, Lahore (2010 CLC 1095)
13. ' In this case father who demanded the tenanted property for personal bona fide use died during the proceedings and his son claimed the property in question for his commercial use. The Controller ordered ejectment of tenant on ground that the personal bona fide need subsisted landlord's death and Appellate Court affirmed order of the Rent Controller. The High Court refused to interfere as findings of fact by the two courts below were held neither infirm on account of misreading and non-reading nor for misapplication nor non-application of the proper law.
(b) Ahmed Saeed Rizvi v. Janant Bibi (2006 CLC 1848)
14. ' In this case the respondent landlady (who after filing ejectment application had died) had sought ejectment of tenant on ground that she needed the property for her bona fide use and after death of the landlady, her application was not affected irrespective of the dismissal of amendment application as ejectment was sought by landlady on the ground of personal use. High Court held that findings of the court were proper.
(c) Husna Begum v. Deen Mohammad (1999 CLC 1399)
15. ' In this case too, the original owner and landlord having died and legal heirs of deceased served notice of change of ownership of premises on tenant. Court held that scope of inquiry in case under S.14 of Sindh Rented Premises Ordinance, 1979 would include need of legal heirs of deceased.
16. Widow and one of sons of deceased landlord having proved their personal bona fide need in respect of premises, they were entitled to get premises vacant.
(d) Rajagopala v. P.Revanna 1974(1) KU 425. K.
17. ' In the case, the landlord died before the evidence commenced in the proceedings. His son stated that the shop is required by him to continue his father's business. Learned Munsiff even after the death of the landlord father held that the landlord has proved that the shop is reasonably and bona fide required by him for his personal occupation and if the possession is not given, it would cause him greater hardship. Those findings were affirmed by the District Judge in the appeal preferred by the tenant.
18. To sum up, while it is needless to state that the relief under Article 199 of the Constitution is discretionary and unless the impugned judgment has resulted in manifest injustice or irreparable loss or injury there is no justification for interference, I for the reason detailed in the foregoing, see no merit in this writ petition and it is accordingly along with all pending applications dismissed with cost of Rs,20,000, with caution to the learned counsel for the petitioners not to reiterate discriminatory remarks in violation of Article 25(2) of the Constitution.