1. ' This appeal is directed against the order dated 30-8-1980, passed by the learned VIth Rent Controller at Karachi in Rent case No, 5850/78.
2. ' The brief facts leading to the filing of the above appeal are that the respondent is a landlady of the flat in possession of the appellant as its tenant at Rs, 55 p.m. The respondent filed Rent case No, 5850/78 for ejectment on the two grounds, namely, (i) default in payment of rent for the period commencing from May, 1978 to July, 1978 (ii) personal bona fide requirement. The learned Rent Controller through the aforesaid order dated 30-8-1980 under appeal granted the above application on the above both grounds. The appellant being aggrieved by the above order has filed the present appeal.
2. (a) In support of the above appeal Mr. Samiuddin Sami, the learned counsel for the appellant has made the following submissions :
(i) That the application was not prosecuted by a recognized agent of the respondent within the meaning of Order III, rule 2, C. P. C. And, therefore, the application should have been dismissed.
(ii) That the power of attorney in favour of the Sultan Ahmed produced by him does not authorise him to prosecute the rent application in respect of the tenement in question.
(iii) That no notice under section 13-A of the W. P. U. R. R. Ordinance was served upon the appellant after the above property was purchased or in the alternative after the death of Samiullah, the husband of the respondent.
(iv) That there was no default in payment of rent for the alleged period.
(v) In the alternative even if it is to be held that there was any alleged default, it was a fit case in which the learned Rent Controller should have exercised discretion in favour of the app.:iiant.
(vi) That as the respondent has not examined her son for whose benefit the flat was required, the said failure was fatal to the application.
(vii) That the person who was examined, namely, Sultan Ahmed had admitted that he had two fiats in his possession, and, therefore, the allegation of the banafide personal requirement was not proved.
(viii) That the case does not fall within the purview of section 13(3) (a) (i) of the Act inasmuch as the word 'children' include unmarried children, who are below 21 years and are not economically independent.
(b) On the other hand it has been urged by Mr. Hafeez Lakho that the application was properly conducted and that the production of the power of attorney was not necessary, and the finding of the learned Rent Controller under section 13 (a) (i) is in accordance with law and that the default and personal requirement have been proved.
(c) With reference to the first contention of Mr. Samiuddin Sami that the application has not been properly prosecuted by the respondent, it may be observed that he has referred to Order III, rule 2, C. P. C. Which defines a recognized agent, which includes a person in whose favour a power of attorney is executed. In the instant case it is an admitted position that the application for ejectment was signed by the respondent herself. She had also signed a vakalatnama in favour of her advocate, and, therefore, she could have been represented by an Advocate before the Court.
3. The only question which requires consideration, is as to whether in support of her application, she was obliged to examine herself or to be represented by a person holding a power of attorney or whether her one of the sons could appear as a witness in support of the application. In the instant case from the contents of the written statement filed by the appellant, it is evident that Sultan Ahmed one of the respondent's sons was the person dealing with the appellant inasmuch as it was alleged that he used to collect rent and used to pass on receipts to the appellant. It was also alleged that the three photostat copies of the alleged rent receipts were given by said Sultan- Ahmed. In view of >the pleas raised by the appellant in her written statement, said Sultan Ahmed was a proper witness to appear in support of the application. Since the respondent was represented by an advocate, the application was competently prosecuted.
(d) Reverting to the second contention of Mr. Sami that the General Power of Attorney produced by the respondent before the learned Rent Controller does not authorise Sultan Ahmed to appear on behalf of the respondent to plead the aforesaid rent case, it will suffice to observe that it is not the case of the learned counsel for the respondent that under the power of attorney Sultan Ahmed was authorised to appear on behalf of respondent. On the other hand he has submitted that he was unable to understand the reason as to why -the power of attorney was produced before the lower Court. According to him, it was not necessary to produce the above power of attorney. I am inclined to hold that for the reasons A stated herein-above aforesaid Sultan Ahmed, one of the respondent's sons could appear as a witness in support of the rent application without Producing a power of attorney in his favour.
(e) Referring to the third contention of the learned counsel for the appellant that no notice under section 13-A of the late West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as the Ordinance) was served after the purchase of the property or in the alternative after the death of Samiullah, the husband of the respondent, it may be pertinent to observe that in the written statement the plea raised by the appellant was that no notice was served under section 13- A of the Ordinance after the respondent purchased the property in question from the previous owner Mohomed Rafi. It is an admitted position that the property in question was purchased by the respondent some time in 1960, whereas section 13-A was enacted in 1965 by Ordinance No, XXI of 1965. In this view of the matter, it was not necessary for the respondent to serve any notice upon- the appellant after purchasing the above property. Furthermore, it is also an admitted position that the appellant had attorned the respondent as her landlady inasmuch as she started paying monthly rent to her after she purchased the aforesaid property.
4. ' As regards the alternate submissions -of Samiuddin namely, that upon the death of Samiullah the respondent has not served any notice under section 13-A of the Ordinance, it may be observed that no such plea has been taken in the written statement-On -the other hand, it has been admitted in the written statement that the respondent was the landlady of the property. Furthermore, from the rent receipts produced by the parties, it is clear that the name of the respondent has been mentioned on the top of the rent receipts as the landlady. Be that as it may, it has been urged by Mr. Samiuddin Sami that the fact that the- property was owned by the deceased Smiullah, the husband of the respondent and was inherited jointly by all his legal heirs can be inferred from the power of Attorney produced by the respondent through Sultan Ahmed. According to him this- information, the appellant received upon the production of the power of attorney before the learned Rent Controller and, therefore, the appellant is entitled to raise the above plea. In my view the above contention is devoid of any force inasmueh as in the general power of attorney (which is on record as annexure A to the rent application) there is no reference to the fact that the property in question was owned, by late Samiullah and that it was inherited by the widow and her children.
5. The only reference in the above power of attorney is to a compensation book bearing No, 147880 (KYC/C/1134/XVI) which was in the name of Samiullah and which was inherited by all the legal heirs of the said deceased. The above argument advanced by the learned counsel for the appellant is based on assumption which is unfounded. Even otherwise, it is not open to the appellant to agitate the above point once having admitted the factum in her written statement that the respondent is her landlady and that she was recovering rent from the appellant.
(f) Reverting to Mr. Sami's contention that no default has been proved by the respondent, it may be pertinent to point out again that the default, relates to a period of 3 months namely, for the months of May, June, July, 1978. In reply to the averment of default contained in the rent application, the appellant in para. 4 of her written statement has made the following averments : "4. That the application is false, baseless hence strongly denied and the applicant is put to strict proof thereof. The opponent's son namely Sultan had been receiving the rent and issuing the receipts but he failed to issue the receipts for the months of May, June and July, 1978 on the pretext that the same were under printing. The opponent made some requests and demands but all in vain. The applicant's son Sultan said that he will not issue the receipts until and unless rent is increased or the house is vacated. A legal notice was also sent for issuance of receipts and the matter was also reported to the police but the applicant's son flatly refused to issue the receipts although rent had already been received by him. However, later on when the opponent's son Sultan was asked by the police authorities to give receipts to the opponent, he handed over photostat copies of the three receipts and promised to give the originals afterwards stating that at the moment the originals were missing. Photostat copies are attached as Annexure A to C."
6. ' It may be noticed that in the above quoted para of the written statement the plea raised by the appellant is that the rent for the months of May, June and July, 1978 was paid by her to Sultan Ahmed one of the sons of the respondent and that he did not issue rent receipts. On the pretext that the same were under printing. It was also alleged that a legal notice was served calling upon said Sultan Ahmed to give the receipts, but upon lodging of the police report, he handed over photostat copies of the three rent receipts namely, annexures A to C to the written statement.
7. Sultan Ahmed has appeared on behalf of the respondent and has denied the factum of having received the rent for the above 3 months. The burden of proof that in fact the appellant had paid the rent for the above 3 months was on her. It may also be noticed that in the above para. 4 of the written statement the plea raised by the appellant was that these photostat copies were handed over by Sultan Ahmed upon lodging of the police report at the direction of the police authorities.
8. However, in the cross-examination the appellant's husband has stated that the Photostat copies of the alleged rent receipts were not given by Sultan Ahmed. Neither any copy of the legal notice was produced by the appellant to show that she had called upon the respondent or Sultan Ahmed to pass on receipts for the above months of May, June and July, 1978, nor any copy of the complaint made to the police was produced before the learned Rent Controller to prove the averments contained in the above quoted para of the written statement. The appellant's plea that the aforesaid photostat copies of rent receipts for the above three months were given by Sultan Ahmed stands disproved.. On account of the appellant's husband admission in his cross- examination that the aforesaid photostat copies of rent receipts were not given by Sultan Ahmed, coupled with the statement of said Sultan Ahmed on oath that he had not given the aforesaid photostat copies of the rent receipts. In this view of the matter no exception can be taken to the finding of the learned Rent Controller that the appellant has failed to prove payment of rent for the above three months.The appellant also failed to prove that the photostat copies of the rent receipts, were of genuine rent receipts issued by the respondent's son. It may be observed that the learned counsel for the respondent on the basis of comparison of the photostat copies of the rent receipts in question with the original rent receipts on the record, has urged that the photostat copies of rent receipts are forged. In my view it is not necessary to give any finding on the above contention as for maintaining the order under appeal it is sufficient to conclude that the appellant has failed to prove the payment of the rent of the three months in question and also failed to prose that the alleged photostat copies of rent receipts were given by the respondent or her son or that they represent the three months in question.
(g) Reverting to the contention of Mr. Samiuddin that in any case the learned Rent Controller should have exercised discretion in favour of the appellant for the following reasons :
(1) That it is an rdmitted position that the appellant had been making payments regularly except the alleged default for the three months.
(ii) That the fact that the alleged default is only for three months itself creates doubts about the factum of default.
(iii) That Sultan Ahmed in his cross-examination admitted the fact that he used to collect accumulated rent but used to issue monthly rent receipts.
9. In my view the appellant having pleaded that she has made the payments for the above 3 months and having failed to prove the above averment, could not have expected that the learned Rent Controller would exercise the discretion in her favour. Furthermore, the mere fact that the appellant had been making payments of monthly rent regularly in the past would not cast any doubt about the factum that she had committed default for the period in question. As regards the admission on the part of Sultan Ahmed that he had collected accumulated rents from the appellant, it will suffice to observe that it is not the case of the appellant that on account of the above alleged practice she did not pay the rent for the three months in question. Her averment in the written statement was to the effect that she had made payment for the period in question The latter plea is quite inconsistent and self-destructive to the plea that there was only alleged practice of making payments of accumulated rent.
10. ' Mr. Samiuddin has further submitted that even if the alleged default is to be accepted as proved, the default was for a period of 2 months and not for 3 months, as according to him the period of 60 days is to be computed on the expiry of the particular month for which the rent is due. To put it precisely his contention is that the default for the month of May is to be computed on the expiry of 60 days from 1-6-1978 and not from 1-5-1978. In support of his above submission he has referred to the case of Syed Shin Gui v. Haji Abdul majid (1), wherein it was held that 60 days is to be computed from the date when the amount is due and payable, for the month/months for which default is alleged. In my view, the above point is not involved in the instant case for the simple reason that the rent application was filed on 26-12-1978, and therefore, 60 days period had 'already expired at the time of filing of the rent application even if we compute 60 days, from 1-9-1978.
(h) Reverting to Mr. 'Samiuddin's contention that the failure on the part of the respondent not to examine her son for whose benefit she required the flat in question was fatal to the application, it may be observed that in support of his above contention he has referred to the case of Sufi Mohomed Husain v. Dr. Major Abdul Haq Khan (2), the case of Muhammad Ismail Khan v. Ghulam Muhammad, (3) and the case of Mohd. Youns v. Dr. Mozamil Ali (4) and the case of Mohomed Asghar and 5 others v. Mst. Jamila Khatoon (5).
(i) With reference to 1976 Karachi, case, it may he observed that in the above case the landlord a doctor by profession filed an ejectment case on the ground of personal requirement of his two daughters, who were also doctors by profession. It was pleaded by the tenant that two daughters had their separate clinics and that they did not wish to share the clinic with their father. On the basis of the above averment, in the written statement, it was observed by a learned Single Judge that the failure on the part of the landlord to examine his daughters was fatal to the application.
(ii) With reference to NLR 1980, it may be stated that in the above case a landlord applied for ejectment of a tenant from the shop on the ground of the personal requirement of his two sons.
11. The above two sons were not examined. On the other hand, the tenant produced evidence to prove that previously also the landlord got one shop vacated on the same ground but did not put it to the said use and in fact amalgamated the same into his house. In context of the above facts, it was held that the bare statement of the landlord was not sufficient.
(iii) In 1979 CLC 367, the facts were that a landlord had applied for ejectment on the ground of his personal requirement, but he failed to appear as a witness without any sufficient reason. It was held that the failure would be a circumstances detracting the landlord's bona fide.
(1) PLD 1968 Quetta 45 (2) PLD 1976 Kar. 1231
(3) NLR 1980 Civil Lah. 194 (4) 1981 CLC 327
(5) 1979 CLC 367
(iv) Reverting to 1981 CLC 327, it may be stated that I after having discussed the cases cited before me in the above cited case inter alia observed that if a landlord without any plausible reason fails to appear as a witness before the Rent Ccntroller in support of his application for ejectment on the ground of personal requirement in good faith, this would be fatal to his application.
(v) From the above-cited and discussed cases, it is clear that the question as to whether non- examination of a landlord himself or his child or children for whose benefit he requires the premises is fatal or not will depend on the facts of each case. A landlord is supposed to support his application of personal requirement by putting himself into the witness box and to subject himself to cross-examination. However, if he can show some sufficient reason for non appearing in person, the failure on the part of the landlord in such case will not be fatal. In the present case the respondent being a widow could not have been expected to appear in person and, therefore, her failure not to appear cannot be fatal to the application. However, the question which requires consideration is whether by examining Sultan Ahmed the respondent has been able to prove her personal requirement within the ambit of section 13 (3) (a) (i) of the West Pakistan Urban Rent Restriction Ordinance. In this connection Mr. Samiuddin has referred to the paras. 4 and 5 of the rent application, in which in para 4 it has been averred that the respondent's two sons recently got married and that she required the premises in question for "her son" "whereas in para. 5 also the words used are "her son". Furthermore, in para. 6 it has been averred that the applicant requires the premises in question for her bona fide personal use. It has been vehemently urged by Mr. Samiuddin that Sultan Ahmed, who had appeared in support of the application had admitted the factum that he was in possession of two flats and that having admitted so he was not a competent witness to support the averment that the respondent needed the flat for the requirement of her son who was not examined. In my view once the Court records the evidence of both the parties then the question of burden of proof loses its significance. If from the evidence on the record the Court comes to the conclusion that bona fide personal requirement has been proved, then in my view the application can be granted notwithstanding that a particular person has not been examined. The material consideration is the satisfaction of the Court. In the instant case there is some force in the contention of Mr. Samiuddin that paras 4 and 5 of the application 'are not very explicit. However, the reading of the application as a whole indicates that sufficient facts for making out a case under section 13 (3) (a)(i) of the Ordinance have been disclosed.
12. Furthermore, from the evidence of Sultan Ahmed coupled with the admission on the part of the appellant's husband in his cross examination a case of personal requirement is proved. From the evidence of Sultan Ahmed the following facts have emerged/proved
(i) That the respondent is putting up with his two married sons, who have also children.
(ii) That the respondent is also putting up with her three unmarried sons and two unmarried daughters.
(iii) That the respondent has only two flats in her possession (having 3 rooms each), as per statement of the appellant's husband in his cross-examination. The appellant's husband has admitted the following facts in his cross examination
(i) That in fact the respondent's two sons got married and have children.
(ii) That one of the respondent's sons is practising lawyer who does not have even a study.
(lit) That the respondent has three un-married sons two un-married daughters, and .3 married daughters.
(vi) That the flat in possession of the appellant is adjacent to a flat in possession of the respondent having a common door between the two flats.
13. In my view the fact that the other married son of the respondent was not examined in support of the application was not fatal to the said application nor the admission on the part of Sultan Ahmed that he has two flats (which he means the respondent's family) belies the respondent's case for personal requirement. The respondent is putting up with her married sons, unmarried sons and daughters. Her personal requirement is to be judged on the basis of the size of the family. She has also :3 married daughters.
(g) It was vehemently urged by Mr. Samiuddin that the use of the word, "children" in section 13 (3)
14. (a)(i) of the Ordinance indicates that the requirement of married sons who are economically independent is not covered. In support of the above submission he has referred to section 13 (1) (g) of the Bombay Rent Restriction Act, 1947, where the words `his own use' have been used. He has also referred to the provisions of various enactments, namely, Child Marriage Restraint Act, 1929..
15. Merchant, Shipping Act, etc. And also the definition of `child' given in Stroud's Judicial Dictionary, 2nd Edition, p.
302. According to Mr. Samiuddin the age of a child given in the various enactments is different ranging from 12 to 18 years and whereas in the Stroud's' Judicial Dictionary, the age of child is up to
21. His further submission was that the word, "children" in section 13 (3) (a) (1) is to to be construed in the meaning in which the above word is ordinarily understood and has been used in the various enactments which will not include a married son who is economically independent. However, it has been conceded by. Mr. Samuddin that in some of the cases the superior Courts have held that the requirement of a married son is covered by the above provision but his submission is that the above argument which he has canvassed before me was not advanced and considered in those cases, and, therefore, the same are not applicable to the instant case. In this connection, it may be pertinent to refer to the case of Tahir Khairullah v. M,st. Zarifun Nisa (1) in which inter alia it was held that the word "child" used in sub section (3) of section 13 of of the Ordinance is not restricted either to infants or minors, but is intended to convey relationship of parents with their off springs. Reliance was placed on the case of Adam Ali Hussain Ali v. Mst. Rubab Bai (2) in which it was urged before a Division Bench that
(1) PLD 1968 Kar. 132 (2). PLD 1967 Kar. 437 ' the word 'his own occupation' were restricted to the personal and individual requirement of the owner to the exclusion of the needs of the owner's family. The above contention was repelled and it was held by a Division Bench that the word "or for the occupation of any of his children' merely relates to a situation where an owner desires to provide independent and separate residence for married or grown children.
16. In my view no restriction of the nature canvassed before me by Mr. Samiuddin can be placed on the construction of section 13 (3) (a) (i) of the Ordinance for the reason that even the married sons, who are economically independent still remain children of the landlord concerned. It is not uncommon that in our society the parent to desire that even their married sons should live with them, This Court can take judicial notice of the custom prevelent in our society, namely, that most of the parents desire that their married sons should live with them in spite of the fact that they are economically independent. In this view of the matter the above contention also fails.
(3) In view of the above discussion the appeal does not merit, and, therefore, it is dismissed with no order as to costs. However, I grant four months time to the appellant from today for vacating the flat in question on the condition that the appellant shall deposit rent in the Misc. Application No, 5309/78 for the month of July, 1981, as according to the appellant she has already deposited rent up to June, 1981.
17. Before parting with the above discussion, I may observe that the appellant has filed an application (CMA No, 415/81) for appointment of a Commissioner for inspection of the flats of the building in questions (Zohra House) for making investigations thereon to elucidate the position as to how much accommodation is actually occupied by the respondent, the learned counsel for the respondent has submitted that he has no objection to the said application in, case this Court consider it proper. I am not inclined to grant the above application at the appellate stage, the appellant should have moved such an application before the learned Rent Controller. Furthermore, there is sufficient evidence on the record to decide the above issue. I, therefore, dismiss the above application.