The appellant filed an application under section 13 of the Sind Urban Rent Restriction Ordinance, 1959 (hereinafter called the (`1959 Ordinance') for eviction of respondent from the premises situated at Plot No. 81/C, situated in Central Commercial Area, P. E. C. H. Society, Off Tariq Road, Karachi, inter alia on the ground that she required the premises for her own use and for the use and occupation of her eldest married son having children.
2. The respondent defended the application by pleading that the appel--lant was residing in an independent bungalow of her own which was quite sufficient for her family and she did not require the premises and unneces--sarily harassing him with intention to compel him to pay enhanced rent.
3. In support of her case the appellant examined herself and also her son. The respondent examined himself only.
4. The learned Controller by the order dated 15-1-1980, dismissed the application by deciding issue of bona fide requirement against the appellant. The appellant filed an appeal under section 15 of the 1959 Ordinance in the D1strict Court, Karachi but the learned D1strict Judge rejected the same holding that the appeal was not maintainable and would lie in this Court. There--after, the appellant filed the present appeal under section 15 of the 1959 Ordinance read with section 21 of the Sind Rented Premises Ordinance, 1979,
5. 1 heard Mr. Baqar Hussain learned counsel for the appellant and Mr. Nooruddin Sarki learned counsel for the respondent.
6. It was submitted by the learned Counsel for the appellant that the appellant duly proved her requirement of the premises and the learned Con--troller unduly rejected the application. On the other hand it was contended by the learned counsel for respondent that the appellant had failed to prove her bona fide. Requirement of the premises. He further contended that the application was not maintainable as the building was a schedule building within the meaning of section 2 (h) of 1959 Ordinance and under section 13, subsection (3), clause (a)(ii) of the 1959 Ordinance the premises could not have been required for residential purposes.
7. In order to consider the respective contention it is necessary that I should briefly state the facts relevant to consideration of the aforesaid conten--tions.
8. The premises let out to the respondent under an agreement of tenancy dated 22-9-1966 cons1sts of 2 bedrooms, 2 bath room one drawing and din--ning rooms and one kitchen and one shop on the ground floor. The rent of the premises is Rs.500 per month, although the respondent has claimed that initially the rent of the premises was Rs.450 per month but it was subsequently increased to Rs.500 per month but nothing turns on this plea.
9. The appellant is residing in her own house, and her family cons1sts of 5 sons and two daughters.
Out of seven children two daughters and one son are married. The two daughters and married son are residing separately but the remaining 4 sons reside with the appellant. The ages of the sons then were between 27 and 17 years.
10. The appellant in her deposition stated that the premises in which she is residing has only one bedroom. But the respondent in his deposition stated that there were four rooms and in support of his claim he produced a copy of the extract from the Property Reg1strar, Excise & Taxation Depart-- ment, which shows that there are four rooms in the premises. However, on the date of hearing I directed the learned counsel for the appellant to pro--duce the site plan of the house, if she bad one, which she produced the same which was placed on record by consent of the respondent.
According to this plan the house cons1sts of one bedroom having measurement on 14' x 15', one drawing room measuring 20' x 15', one dining room having measurement of 14' x 15' and one other room of 14' x 16'. Even, if we treat the room which will normally be a sitting room as bed room then the house cons1sts only 2 bedrooms. Now, a house having 2 bed rooms and drawing and dinning rooms, in my opinion cannot be considered for a family of 5 members which cons1sts of 4 sons all of whom are now major, the eldest being 29 years of age and the youngest of 2i years of age, as sufficient. Therefore, the house .Cannot accommodate one more married son with two children.
Further, it is in evidence that one son was engaged and his marriage could not be solemnized for want of proper accommodation. In my view each eldest one would need at least one room.
Here I may refer to Khuda Bux v. Syed Muhammad Habib Hashmi (1978 SCMR 89) wherein the landlord had required the premises cons1sting of four rooms for his eight children, six of them being adult and need was held by the learned Judges of the Supreme Court as bona fide. It may be useful to reproduce one paragraph which appears at pages 90 and 91 of the report and which reads as follows :- "Learned counsel then submitted that the respondent had not proved his requirement because he owned another house in which he was living with his family. But according to the judgment before us that house cons1sted of four rooms whilst the petitioner had eight children and even when evidence was given eight years ago, six of those children were adults. Therefore, it is likely that all the children of the respon--dent are now adults in any case, the respondent had proved eight years that six of his children were adults, and that one was going to be married. In these circumstances, it cannot be reasonably contended that the respondent has not proved his requirement for the house in dispute."
11. In regard to accommodation it is observed by the Controller that the appellant had not come out with the truth as she deposed that there was only one bedroom in a bungalow built on 600 sq.
Yards, and therefore, he con--cluded that there is no bona fade requirement but just to create the ground. This observation does not appear to be correct for the appellant has not deposed that there is only one room but what she has deposed is that there is only one bedroom. Even the respondent in his written statement has not stated that there are four bedrooms, what he has stated is that there are four rooms. 1n my opinion therefore, the requirement for the premises by the appellant is bona fide.
12. It was however, argued by the learned counsel for the respondent that the respondent has also a large family and is carrying on practice in the shop near the staircase in the premises. Therefore, he needed the premises more. But in my view the need of the respondent however great, is irrelevant, for what is to be considered in relation to an application under section 13 of 1959 or section 15 of Sind Rented Premises Ordinance, 1979 is the need of the landlord and not of the tenant.
13. It was next submitted by the learned counsel for the respondent that the law envisaged the need of the landlord and his dependent minor son and daughter and not the need of independent married son. In my opinion the contention is misconceived for the term "children" has been used in the Ordinance in a broader sense and no such qualification as mentioned can be read therein. A reference to the Concise Oxford Dic--tionary, New Edition (Sixth Edition) would show that the word 'Child' means : son or daughter (at any age)'. According to the Oxford English Dictionary, Vol. II also it means, "offspring, male or female, or human parents ; a son or daughter".
14. According to Ballentine's Law Dictionary, Third Edition, the word "child" is not a technical legal term having a fixed and definite meaning, but one which is flexible and subject to construction to give effect to the inten--tion of the maker of the instrument in which it appears. Reliance is placed by the author on Copper v. Gardner (23 III. 258=83 ,N E 640): According to the Stroud's Judicial Dictionary, Vol. I, Fourth Edition, page '. 454, the word "child", or "children", primarily means, issue in the first generation only-sons and daughters-to the exclusion of grandchildren or x other remoter descendants". Reference is made to the opinion of Lord Blackburn, in Bowen v. Lewis (45 L J Q B 68).
The use of term "children" in section 13 cannot therefore be given restricted meaning. Further, the question stands settled by several decisions of this Court. Here I may refer to Haji Lal Bux v. M1stry Allahdad (1980 CLC 984) wherein my learned brother Sajad Ali Shah, J, held, that law does not say that the children must be dependent upon the landlord'. Reference may be had to Messrs Honest Trading Co. Karachi v. Mst. Muhammad Nisa (PLD 1977 Kar. 80) wherein Fakhruddin G. Ebrahim, J.
In paragraph 5 of the report observed as follows "The last contention of the learned counsel was that the landlady had to prove that her three sons were economically dependent upon her before she could obtain possession on the ground that the premises were required for the use of her three male children. The learned counsel relied on Almas Begum and others v. Haji Pir Bakhsh and others (PLD 1964 Pesh. 278). But- in so far as this decision is con--cerned there is no discussion and the learned Judge has relied upon an earlier Division Bench decision reported in Muhammad Amin and others v. Chief Judge, Small Causes Court, Karachi and others PLD 1963 Kar. 695. First of all this was a case under the Karachi Rent ; Restriction Act in which the different language was 'for his own use or for the use of any person for whose benefit the premises are held' while in the present Rent Ordinance the language.. Is for his own use or for the use of his any of the male children'. Furthermore in the Karachi case there was no occasion to hold that it was the requirement of the Karachi Act that the landlord must prove that his sons were economically dependent upon him. The Court was considering the meaning of the words 'for his own use' and in this connection reference was made to certain Indian cases in which these words were understood as including persons who were living with the landlord and economically dependent upon him. Be that as it may, in the present Rent Ordinance, as was pointed out by Mr. Saeeduzzaman Siddiqui, the words are clear and precise and there are 'for the use of his male children.' If the argument advanced by the learned add to the section the words "his dependent male children."
15. As regards the second contention that building was a schedule building and could be required only for the same purpose for which it was occupied by the respondent as tenant it would suffice to say no such plea was taken in the written statement, and therefore no issue was raised thereon, and therefore it cannot be entertained at this stage.
16. As regards the plea that the appellant wants to enhance the rent and, therefore, filed the application to harass the respondent, the respondent did not say a word in support of the plea of enhancement of rent in his deposition and therefore, the learned Controller, has rightly not considered the same or given any finding thereon.
For the reason given above I hold that the appellant has proved her bona fide requirements of the premises and consequently I set aside the order of the Controller and allow the appeal and direct the respondent to but the appel--lant in possession of the premises within two months from the date hereof.