This appeal raises an important question of law as to what would be the effect of the landlord's dying during the pendency of the appeal when the application for eviction had been filed in respect of a shop for personal need. The circumstances in which this question arise may be briefly stated on October 1972 a petition for eviction was filed by Ch. Atta Ullah deceased, the original respondent, for the eviction of the appellant from the shop bearing No. $. XII. 17-S-84/13, situate in Ganj Mandi, Gujranwala solely on the ground of personal need. This applica--tion was resisted by the present appellant on the ground that this was an evacuee property and he was entitled protection under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act. The bona fide personal need of the original respondent was denied and it was stated that he wanted to cause the eviction of the appellant in order that he may get a good price. On the pleadings of the parties the following issues were framed (1) Whether the Rent Controller, Gujranwala has no jurisdiction to try the application ? O P R
(2) Whether the application is false, frivolous, vexatious and the respondent is entitled to any special costs ? If so, to what extent ? OPR
(3) Whether the applicant has no cause of action to institute the present petition ? O P R
(4) Whether the respondent was to possession of the suit property at the time of its transfer to late Mian Mahmud Hussain ? O P R
(5) On proof of issue No. 4, whether the petitioner served the requisite notice under S. 30 of the Displaced Persons (Corn & Reh.) Act, 1958 upon the respondent ? If not with what effect ? O P A.
(6) Whether the petitioner requires the suit property for his personal need in good faith ? O P
(7) Relief.
2. Issue No. 1 was not pressed. Under issue No. 6 it was held that the original respondent had failed to establish that he required the shop in good faith for his personal use. 1t was farther observed that the respondent had not produced any other evidence except his own state--ment. On the contrary the evidence led by the appellant was to the effect that the original respondent intended to sell the shop in question for which he had asked the customers. Issue No. 3 was decided against the appellant while issue No. 4 was decided in favour of the appellant--llant. Under issue No. 5 it was held that the petition for eviction was premature and the period of notice had not run out. On appeal by the respondent the findings of the learned Rent Controller, Gujranwala were reversed by the learned District Judge, Gujranwala vide his order dated 23rd February, 1976. The learned District Judge observed that the original respondent had retired from Government service and since he was not occupying any shop suitable for his needs, the bare statement of the original respondent was sufficient to establish his bona fide needs.
3. The findings on issues Nos. 4 and 5 were also reversed. It was found that the appellant had come into possession of the disputed shop on 17th July, 1967 and as such the provisions of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act were not attracted to the facts of the present case. Reliance was placed on rent deed (Exh. A/1). The original respondent died on 31st May, 1976. The question in these circumstances which arose for consideration is whether the cause still presists and whether the heir- of the original respondent can take possession of the shop out personal need of the original respondent. The various judgments on this point may be examined. In Abdul Haye v. Mst. Riaz Begum (1979 SCMR 372) the facts of the case was that a portion of the godown was admittedly used as a shop and had been transferred to one Muhammad Rafiq deceased who filed a petition for eviction on 26th May, 1976 on account of default and bona fide requirement of the shop for use by his son. During the pendency of the proceedings his legal heirs were brought on record. One of the point; raised before the Hon'ble Supreme Court was that the petition for eviction. Fled by Muhammad Rafiq deceased after his death lust efficacy. The observations of their Lordships as contain in paragraph 4 of this judgment may be reproduced below We are afraid, there is no force in either of these contentions. The concurrent finding of the Courts below, including the High Court is that the shop in dispute, was required bona fide reasonably and in good faith for the use of Muhammad Waheed, who, admittedly, was nut working in the shop of his late father. In these circumstances the said finding, which is based on evidence, cannot be questioned in this Court as the same is necessarily a finding of fact."
As regards the other contention urged by the learned counsel, the learned Judge in the High Court took the view that "This plea of the learned counsel is obviously without any merit. The word `landlord' in the context used in the said section will be inclusive of one of them. The plea otherwise also is not available in that the other joint landlords concur in the prayer that the shop in dispute was needed by one of them and as such this being their personal arrangement, the tenant has no locus standi to raise an objection in this regard. The interpretation which the learned counsel wants me to put on section 13
(3) (ii) would lead to anomal--ous situations, to which I would not like to be a party. With the view of the learned Judge we find ourselves in agreement. The admitted position is which even finds support from the title of the. Petition itself that late Muhammad Rafiq had a large family consisting of his widow, 3 grown-up sons, 2 grown-up daughters and 4 minor children. Out of the 3 grown-up sons two were working with him in his shop whereas his son Muhammad Waheed was unemployed and it was for his benefit that he had sought the ejectment of the petitioner from the shop in dispute. In these circumstances, it cannot be said that the view taken by the High Court is illegal or improper."
This judgment will be of no guidance as the shop was admittedly got vacated for the use of the son by the original landlord.
4. In Mst. Jamila Latif v. Mr. Ghulam Yazdani Khan (1981 SCMR 673) the land-- lady had filed- an application for the eviction of tenant on the ground of personal use, and, she having died during the pendency of the proceed--ings it was held that the death of the landlady did not make any difference so far -as children's requirement was concerned. This was a case of personal requirement of the landlady in respect of a house.
5. In Hassan Khan v. Mrs. Munawar Begum also the requirement was of the landlord in respect of a house who died during-the pendency of the appeal and it was observed that the were and son of such landlord could persue cause of action for requirement of premises on their own behalf. In this case application- for eviction had been dismissed. By the Rent Controller. The landlord had then filed an appeal to the Additional District Judge, Karach. The Appellate Authority also agreed with the findings of the Rent Controller. The appeal was admitted for regular hearing and the landlord had died during the pendency of the appeal and the relevancy of the ground of his medical illness became meaningless. In this connection it was observed as under "The landlord having died pending the appeal, the relevancy of the ground of his medical illness becomes meaningless. But the question that now remains is whether the were and the son can claim the benefit of the cause of action which clearly had survived. In Adamali Hasanali v. Mst. Rubab Bai (PLD 1965 Karachi 408) it was held that the requirement of own occupation includes also the requirement of the were and .The family of the landlord. This judg--ment was affirmed on appeal by a Division Bench of this High Court and is reported in PLD 1967 Kar. 437. I am, therefore, of the opinion that the were and the son could pursue the cause of action for requirement of the premises on their own behalf, they being members of the deceased's family and the only legal heirs."
6. From the above observations it would be clear that it is only where the occupation is to be made by the family members in respect of a residential budding and the requirement is of the son in case of non-resid--ential premises that the cause could be pursued. The present case being one relating to the non residential building therefore, the consideration for pursuing the personal need would be in case it was required for use by any of the sons and in that case the death of the original landlord would not make any difference.
7. In view of the above discussion it is held that after the death of the original landlord the cause for the personal use and occupation ofshop could not be pursued. If any of the sons of the original landlord is capable of doing the business and is not in occupation of any shop of his own it would be a case of fresh cause of action and any of the respondents would be at liberty to file a fresh petition.
8. In view of the above discussion this appeal- is accepted and the order of the learned District Judge, Gujranwala dated 23th February, 1976 is set aside. The parties are left to bear their own costs.