This second appeal is directed against the judgment dated 7-10-1976 passed by the learned IVth Additional District Judge, Hyderabad in Rent Appeal No. 81 of 1974.
The brief facts leading to the filing of the above appeal are that the appellants are the tenants in.
Respect of a shop situated at For Chowrangi, Hyderabad, at Rs.70 per month, wherein they have been running a hotel since about last 25 years. It seems that the respondent purchased the above property in 1969. After that the respondent filed a rent application, namely, Rent Case No. 200 of 1969 for ejectment on two grounds namely, personal requirement of the respondents husband and also on account of sub--letting. The above rent application was dismissed by the learned Rent Controller by an order dated 15-3-1974. The respondent being aggrieved by the aforesaid--order filed the aforesaid Rent Appeal No. 81/74, which has been allowed through the order under appeal dated 7-10-1976 on both the above grounds.
2. (a) In support of the above appeal Mr. Sbamdas, learned counsel for the appellant has made the following submissions :-
(i) That as the respondent had not examined herself in support of the allegation of personal requirement, the above failure was fatal to the above application.
(ii) That in any case no case was made out under section 13(3)(ii)(a) by the respondent for her own occupation.
(i.e) That the finding of the learned 1st Appellate Court on the question of subletting is based on surmises and conjectures and not on the basis of the evidence on the record.
(b) Whereas Mr. Jethanand, learned counsel for the respondent has urged that it was not necessary for the respondent to examine herself in support of the rent application as she needed the premises for the benefit of her husband, who was examined. It was further urged by him that the words `own use' employed in section 13 (3) (ii)(a) include the personal requirement of a husband of a landlady. As regards subletting, his submission was that the appellant had failed to rebut the evidence of the respondent inasmuch as nothing was stated in the examination-in-chief by the appellant Umer for refuting the allegation of subletting.
(c) With reference to the first contention of Mr. Shamdas, learned counsel to the appellant that as the respondent had not examined herself in support of the ground of the personal requirement, the application should have been dismissed, it may be observed that in support of his above sub-- mission, be has referred to the case of Muhammad Asghar and 5 others v. Mst. Jamila Khatoon (1979 CLC 367) and the case of Ghulam Mohiuddin v. Soba Khan (PLD 1977 Lah.1094). In the first case it was held that the failure on the part of the landlord to enter into witness-box, if not disabled to appear, would be a circumstance detracting his bona fide. Whereas in the latter case it was observed that the statements of a landlord as well as of the person for whose benefit the premises is sought to be vacated are most relevant to determine the point in issue.
(d) Reverting to the second contention that the respondent has failed to make out a case of personal requirement in good faith, it may be pertinent to refer to section 13(3) (ii) (a) to (c) of late West Pakistan Urban Rent Res--triction Ordinance, 1959, which reads as follows "13(3)
(i)
(ii) in the case of a non-residential building or a scheduled building or rented land, if-
(a) he requires it in good faith for his own use or for the use of any of his male children ;
(b) he or his said child is not occupying in the same urban area in which such building is situated for the purpose of his business any other such building or rented land, as the case may be, suitable for his needs at the time; and
(c) he has not vacated such a building or rented land without sufficient cause after the commencement of this Ordinance, in the said Urban area Provided that where the tenancy is for a specified period agreed upon between the landlord and the tenant, the landlord shall not be entitled to apply under this subsection before the expiry of such period: Provided further that where the landlord had obtained possession of a residential, scheduled or non-residential building or rented land under the provisions of sub-paragraph (i) or sub- paragraph (ii) he shall be entitled to apply again under the said sub-paragraphs for the possession of any other building of the same class of rented land unless such residential, scheduled or non-residential building or land is no longer suitable for his needs at the time."
It may be noticed that under the above-quoted provision of the Ordinance a landlord can apply for ejectment from a non-residential premises on the ground of his own use or for the use of his any male child. 1n other words, a landlord cannot seek ejectment of a tenant from a non-residential premises for the use of his female children, whereas under section 13(3) (a) (i) of the Ordinance a landlord can apply for ejectment of a tenant from a residential premises for his own use and for the use of his children, which include female children. So there is a marked distinction between a residential and a non--residential premises as to the scope of the ground of the personal requirement.
It has been urged by Mr. Shamdas that the words `own use' in a case of non-residential building i. e.
Commercial building does not include the personal requirement of a husband of a landlady. On the other hand it has been urged by Mr. Jethanand that the words `own use' used in section 13(3)
(ii)(a) are the same as employed in section 13(3)(i)(a) in respect of residential premises, and, therefore, the rulings of the Superior Courts on the Construction of above section 13(3) (i)(a), wherein it has been held that the words `own use' include the requirement of a husband can be pressed into service. Mr. Shamdas in support of his above contention has referred to the case of Muhammad Younus ,v. Iqbal Begum (PLD 1980 Lah. 577) whereas Mr. Jethanand has referred to the case of Ademah Hussain Ali v. Mst. Rubab Bai (PLD 1965 Kar. 408) the case of Adamali Hussainali v. Mst. Rubab Bai (PLD 1967 Kar. 437) the' case of Syed Rashid Hussain and 2 others v.
Hussain Haji Ahmed (PLD 1973 Note 138 p. 209) and the case of Muhammad Ilyas v. Masjid Committee, Rahimyar Khan (PLD 1968 Lah. 863)... '
(i) In the first case, namely, PLD 1980 Lah. 577, a Single Judge of the Lahore High Court while construing the provisions of section 13(3)(a)(ii)(a) has held that the husband is not - one of the categories of the persons for whose benefit a non-residential building can be got vacated in terms of the above provisions of the West Pakistan Urban Rent Restriction Ordinance In the above case though the ejectment order was passed by the 1st appellate Court, but in the second appeal the High Court set aside the same and dismissed the ejectment application by holding that the above provision of the Ordinance does not include the personal requirement of a husband in respect of non--residential premises.
(ii) Reverting to 1965 Kar. 408, it may be observed that in the above case a landlady had filed an ejectment application in respect of a residential premises on the ground that her ailing husband needed the above premises. It was held by a learned Single Judge of this Court, while dismissing the second appeal that the expression `for his own occupation' is to be construed liberally and must be interpreted as to include not only the need of the family and dependents, but also the other genuine requirements of the landlord and that the genuineness of the landlord would depend on the circumstances of each case.
(i.e) The above judgment was maintained by a Division Bench in a Letters Patent Appeal filed against it, namely, Adamali Hussainali v. Mst. Rubab Bai, referred to hereinabove. It was held by the Division Bench that the word `need' is not restricted to the individual and personal requirement of the landlord but includes those of his family as well.
(iv) Reverting to PLD 1973 Note 138 at p. 299, it may be observed that in the above case the question before a learned Single Judge was whether one of the co-owners of the property could maintain an applic--ation for ejectment on the ground of his personal requirement. While discussing the above question and construing the provision of section 13(3)(i)(a), (b) and & (c) of the Ordinance, it was held that the requirement of one of the co-owners could be a ground for ejectment.
(v) With reference to PLD 1968 Lah. 863, it may be stated that in the above case the residential premises were owned by a mosque. An ejectment application was filed by the mosque committee on the ground of the require--ment of its personal requirement. In that context it was held that the words `own occupation' with reference to a mosque will include the requirement of the Pesh Imam of the mosque.
3. (a) It may be observed that in the above two Karachi cases i.e. 1965 and 1967 Karachi, the subject-matter of the ejectment application was residential premises and, therefore, the facts of the above case are not directly applicable to the instant case. Since the husband and were reside together under the same roof, an application for ejectment filed by a landlady on the ground of the personal requirement of her husband in my view includes impliedly her personal. Requirement. If the husband will get more spacious accommodation, the were will also be benefited, whereas in PLD 1973 the point in issue was, as to whether one of the co-owners could file an ejectment application on the ground of his personal requirement and in that context it was held that singular would include plural and vice versa. The facts of the said case are also distinguishable from the present case. Whereas in the 1968 Lahore case, it was held that a mosque Committee could maintain an application for personal requirement on the ground of personal requirement of its Pesh Imam. It may be observed that a mosque is not a human being and its Pesh Imam being the person, who is directly connected with the running of the mosque and the performance of Namaz and other religious ceremonies, his personal requirement can be identified with the requirement of the mosque.
(b) The Lahore case relied upon by Mr. Shamdas in fact supports his contention that in respect of non-residential building, the personal requirement of a husband of a landlady cannot be a ground.
However, I am not inclined to subscribe to a broad proposition of law that in every case the requirement of a husband of a landlady will not be covered by section 13(3) (a)(ii). If a landlady can show that by the occupation of the non-residential building commercial building by her husband, she will be benefited, in my view the application would be competent as the words `own occupation' are of were import as to include, the personal requirement of her husband. However, in the instant case it is an admitted position that the respondent herself is a lady doctor and runs a clinic under the name of 'Mehran Clinic'. According to the learned counsel for the appellant the above clinic has 30 rooms, whereas according to the learned counsel for the respondent 9 rooms of the clinic are being used for running the clinic by the respondent, whereas the other rooms on the top floor are being used for residential purpose by the respondent and her husband. It is not the case of the respondent that if her husband will occupy the shop in question she will in any way be benefited. From the evidence on the record it seems that economically she is independent. Her personal requirement cannot be equated identified with the personal requirement of her husband.
As a matter of fact she did not examine herself in support of the rent application and had examined her husband. The husband has .Not stated anything on the above aspect. In view of the peculiar facts of the instant case, I am inclined to hold that the respondent has failed to make out a case of the personal requirement within the ambit of sec--tion 13(3) (a)(ii)(a) for non-residential premises, and, therefore, the finding of the learned first appellate Court on the above ground cannot be sustained.
4. (a) Reverting to the last contention of Mr. Shamdas, namely, that the finding on the question of subletting is based en surmises and conjectures, it may be observed that whereas Mr. Jethanand, learned counsel for the respondent has pointed out that the appellant Umer has not uttered a single word in their examination-in-chief to refute the averment of the respondent's husband on oath to the effect the appellants had in fact sublet the premises to the three persons mentioned in the rent application. It may be pertinent to observe that in para. 6 of the rent application the respondent had averred that the appellant had sublet certain portion of the premises to the three persons named therein, namely, Bundu for pan-biri cabin, Messrs Shafi and Akhtar the steps of the shop for selling flower. The above averment was replied to in para. 5 of the written statement, wherein it was averred that para. 6 of the application _ is vehemently denied. That applicant is put to proof for the same'. It is true that appellant Umer has not uttered a single word in his examination-in-chief to deny the averment of the respondent's husband on oath and also the statement of Muhammad Shafi, one of the alleged sub-tenants. However, Mr. Shamdas, learned counsel for the appellant has submitted that the burden of proof of the above allegation of subletting was on the respondent, which she has failed to discharge inasmuch as Muhammad Shafi in his statement in the cross-examination has admitted that he sits on the ground adjoining to the shop -in dispute towards the road side.
(b) It may be observed that Muhammad Shafi in his examination-in-chief has deposed that he was the tenant of the appellant Umer since 1965 and was paying rent to him at Rs.80 per month. It may be observed that the res--pondent had purchased the property in question in 1969. If the statement of Muhammad Shafi is to be accepted, it means that he had been an alleged sub- tenant since 1965. There is nothing on 'the record to indicate that the previous landlord had ever served any notice -on the appellant or objected to Muhammad Shafi and Akhtar's sitting in front of the shop. In para. 6 of the rent application there was no particular as to the date of the alleged subletting. It is an admitted position that Muhammad Shafi and Akhtar the alleged sub-tenants are not occupying any portion of the shop itself but sit in front of the shop. According to the respondent the above two persons have been using the footsteps of the shop and whereas Muhammad Shafi in his cross-examination has admitted that he was sitting on the ground towards the road side.
As regards third alleged sub-tenant, namely, Bundu, it is an admitted position that his cabin was removed by the Municipal Committee, Hyderabad sometime either before or after the filing of the ejectment application. It may be observed that there is nothing on record to indicate as to when the above cabin was removed, but is an admitted position that before the passing of the order by the learned Rent Controller, the above cabin had already been removed. It has been urged by Mr. Jethanand that as the respondent in her application had averred that the above Bundu was running pan cabin it implies that in fact he was in possession of the cabin at the time of the filing of the rent application. It will suffice to observe that the learned First Appellate Court has not granted ejectment on the ground that any portion of the shop was sublet to said Bundu. In my views the state of the evidence on the record of the instant case was such that on the question of subletting the learned Rent Controller could come to the conclusion that the above ground was not proved by the respondent. In this view of the matter. The learned First Appellate Court was not justified in reversing the above finding of the trial Court.
5. In view of 0e above discussion. I allow the appeal and set aside the order under appeal. The respondent's ejectment petition shall stand dismissed. In the circumstances of the case there well be no order as to costs.