ZAPPAR .HUSSAIN MIRZA, J.-This is a landlord's appeal by special leave arising out of a judgment passed by a learned Single Judge of the High Court of Sind & Baluchistan dated 16.2-1976 by which the Second Appeal of the respondents was allowed and the impugned order of their ejectment was set aside. Leave was granted by this Court in order to examine the correct= of the finding that the bona fide personal requirement of the landlord and his male child was not established on record, inasmuch as the learned Single Judge in the High Court had ignored material evidence consisting of the correspondence exchanged between the landlord and Habib Bank Limited and a letter from a firm of Importers of Medical Equipment.
2. The respondents are a firm and are in occupation of a shop on the ground floor of the building on Plot No, 3, Group No, 1, Commercial Area, Liaquatabad, Karachi where they are running business of Sweet Mart. At the relevant time when the ejectment proceedings were commenced by an application dated 26.3-1968 the premises were owned by Dr. Abdul Ahad Khan who was a medical practitioner by profession and was running a medical clinic known as 'Khan Clinic' in the rest of the building except one more shop on the ground floor. There is a first floor over the ground floor which is in the occupation of the landlord. The landlord brought the application on the ground that he required the accommodation in the occupation of the respondents in good faith for his own use as well as the use of his children, namely, a son and two daughters who were also in the medical' profession. There is now no dispute that the landlord could not obtain the premises for the use of his daughters and, therefore, the controversy was confined only as regards the requirement of Dr. Abdul Ahad Khan and his son Dr. Aftab Ahmed Khan who qualified as a medical doctor in 1967.
3. It will be useful to reproduce the pleadings of the landlord in regard to the case set up by him for personal requirement of the premises which was contained in paragraphs Nos, 6 and 7 of the ejectment application, which reads as follows :- "6. That the applicant has established a Maternity Home in his portion on the said plot and is further extending' his dispensary for setting up a laboratory for X-Ray and Pathological Examination.
7. That the applicant has a son and a daughter whom be caused the completion of their medical education and ultimately to join him in his medical practice. The applicant, therefore, requires in good faith the said premises in occupation of the opponent for his personal use and for the use of his children."
' The respondents repudiated the plea of the landlord and contended that the premises in their occupation were not required in good faith by the' landlord for the use of himself and his son. The learned Rent Controller disbelieved the evidence of the landlord that he wanted to expand his clinic and develop it into a full-fledged hospital or that his children will join him in the hospital. The reasons advanced in support of this finding by the learned Rent Controller were that admittedly none of his children was working with the landlord at the time of the proceedings and his son we studying in the United States where he was expected to remain for several years to complete his studies. Additionally it was found that the volume of practice at the relevant time being handled by the landlord did not show that he was experiencing shortage of accommodation and, therefore, the Rent Controller concluded that his needs were not "pressing" enough and constituted a mere desire to obtain the premises in dispute. On this finding the learned Rent Controller dismissed the ejectment application by his order, dated 1841-1969.
4. Being aggrieved by the order of the Rent Controller the landlord filed an appeal which was allowed by the learned Additional District J udge, Karachi as per his judgment, dated 3-11-1970 and the eviction order passed against the respondents. The respondents then filed a Second Appeal in the erstwhile High Court of Sind & Baluchistan at Karachi which was accepted by the impugned judgment and the order of eviction passed by the learned Additional District Judge was set aside.
5. Before the learned Rent Controller in support of his case Dr. Abdul Ahad Khan examined himself and produced documentary evidence including the letter dated 23-1-1969 received by 'him in response to his inquiry from RiZSONS, Importers of Medical Machinery and .Equipment, a letter dated 27-2-1968 wtitten by him to the Habib Bank Limited for grant of loan and a memo. From the Habib Bank Limited dated 2-3-1968 evidencing the deposit of title deeds by him to create an equitable mortgage for the purpose of securing the loan of Rs, 20,000. On the other hand the respondents examined their partner Soofi Muhammad Yasin and his son Sohail Iqbal as their witnesses. Li his deposition Dr. Abdul Ahad Khan supported his pleadings by stating that be wanted to expand his clinic by having an X-Ray section as well as Pathology and Maternity sections. He further stated that in this connection he was in correspondence with many firms who manufactured medical equipment. In order to further fortify the bona fides of his plea he asserted that he had applied for a loan to the Habib Bank Limited and produced the copy of his loan application and disclosed that a loan of Rs, 20,000 was sanctioned. As regards the need of his children he stated that he had two daughters and one son who were all doctors. He produced university degrees of his children and further stated that he had got them educated so that they may assist him in the profession. About the plot of land on which the building stands he stated that he had purchased the same to develop it into a full-fledged hospital but he was greatly handicapped due to the paucity of accommodation. As regards his son he asserted that he was returning from United States after completing his studies in July, 1969. In the cross-examination these assertions of the landlord were largely unshaken. To a suggestion in the cross-examination he denied that his children were not willing to join him in the profession. On the other hand Muhammad Yasin witness of the respondent stated that the landlord had in all 8 to 10 rooms in his possession and that his practice is not flourishing with the result that most of the rooms were lying vacant. He further asserted that the intention of the landlord in seeking the ejectment of the respondents was to let out the shop for huge goodwill to someone else. He also stated that the landlord had no connection -.With his" children. The witness admitted that he had strained relations with the landlord and had never visited his house nor taken medical treatment from him.
The other witness of the respondent Sohail Iqbal has given evidence on the same lines. He has also admitted that he is not on visiting terms with the landlord and did not know how many children be bad.
6. On re-assessing the evidence the learned Additional District Judge took the view that the oral statement of the landlord coupled with the documentary evidence was sufficient to discharge the onus that lay upon the landlord to prove the bona fides Of his requirement for himself and his children who are all doctors. He also held that the correspondence between the landlord and the agents of the manufacturers of medical equipment, the catalogue of X-Ray plants indicated that the landlord was "genuinely and seriously making efforts to get the X-Ray installed". In addition there was documentary evidence to show that he had obtained a loan of Rs, 20,000 from the Habib Bank Limited. He was further of the view that the son of the landlord was returning from United States of America after completing his higher medical studies to join him and disagreed with the learned Rent Controller that merely because the landlord's children were not working with him at the time of the proceedings it could be held that they would not join him. He further found that there was nothing on the record to show that the landlord's practice was not flourishing nor was there any warrant for the view taken by the Rent Controller that the landlord was required to establish "pressing need" for the premises. The conclusion arrived at by the learned Additional District Judge was as under :- "In view of the positive evidence led by the appellant orally as well as based on documents. There is a hardly any reason to challenge his bona fides. He has supplied the proof in his support from the documents referred to above and on the other side there is nothing to controvert these allegations.
I shall therefore come to the conclusion that he has established the bona fide requirements for his personal use and also for his male children. My finding on this issue would be' in the affirmative."
7. The learned Single Judge reversed the findings of the learned Additional District Judge in his appellate judgment on the following grounds ; ,
(i) That the landlord had stated in his application that he had already established a Maternity Home in the portion of the building in his occupation whereas in his deposition, in addition to establishing X-Ray and Pathology sections, he also stated that he required the premises in order to establish a Maternity section.
(ii) That the' landlord has also stated in his evidence that he had already set up four rooms as Maternity Home for his children meaning thereby his daughters.
(iii) That the above admission on the part of the landlord shows that he does not require any extra room for the purpose of a Maternity section.
(iv) That no evidence was led as to what would be actual requirement for establishing X-Ray and Pathology sections or the nature or the area of existing accommodation except a bare statement that the landlord was greatly handicapped due to shortage of accommodation.
(v) That the requirement of the children also included the two daughters of the landlord ' for whose benefit the landlord could not under the law obtain possession in view of the fact that the premises were nonresidential in nature.
(vi) That the son of the landlord has 'not admittedly returned to Pakistan although over six years period has elapsed since July, '1969. The affidavit subsequently filed stating on the basis of two letters received from the son that he has not returned due to lack of accommodation for him to join his father's clinic cannot be taken as evidence as the deponent has not made himself available for cross-examination.
' On these grounds the learned Judge in the High Court recorded his conclusions as under : "I. Am, therefore, of the view that the learned Appellate Court has not properly appreciated and at time ignored the material evidence on record nor has he given valid reasons for coming to the conclusion that the premises in occupation of the tenants were required by the landlord bona fide for his personal use or use of his male child."
8. At the hearing of this appeal we were informed that pending this appeal Dr. Abdul Ahad Khan has died and, therefore, the only question that remains to be considered in this appeal is whether the premises are required in good faith for the use of the deceased landlord's son of Dr. Aftab Ahad Khan who has admittedly returned to Pakistan now. It was submitted by Mr. A. A. Fazeel, learned counsel for the appellants that in the case of requirement of the premises for the use of a child of a landlord under section 13(3) of the Urban Rent Restriction Ordinance the death of the landlord does not necessarily result in the abatement of the ejectment proceedings vis-a-vis that ground. We agree with this proposition of law as on a plain reading of the relevant provisions of law it is apparent that the law recognizes the right of a landlord to obtain possession of the demised premises from the tenant independently on the ground that it is required for the use of his children.
Whether the death of the landlord in a given case materially alters the position would depend upon the facts and circumstances of each particular case. In the present case the deceased landlord did not seek the possession of the premises in dispute for the exclusive use of his son but his claim was that further accommodation was required by him for the purpose of extension of his clinic which would be run jointly by himself and B his son. It is, therefore, clear that the case set up was that the son would join in the business not only in the premises in dispute but in the entire building including the disputed portion when it is annexed to form part of the whole establishment. In the circumstances if the case for requirement of the premises had been solely for the purpose of the son of the landlord it could have been argued that on the death of the landlord the accommodation available with the deceased landlord could have been utilised by his son for his practice and in such a case the demand for requirement would have ceased to be valid. But in the case of personal requirement for the joint use of the landlord and his children his death does not necessarily affect the children's requirement. It was so held in the cases of Mst. Jamila Latif v.
Ghulam Yazdani Khan and Abdul Hayee v. Mst. Rica Begum .
9. The case for requirement set up by the landlord when analysed, therefore, shows that it was based on two grounds, namely, that the further accommodation was necessary in order to extend the clinic of the landlord and for the joint personal use of himself and his son. Although the landlord had included the need of his daughters but in view of the clear provisions of section 13(3) (ii) of the Urban Rent Restriction Ordinance, 1959 which permit the ejectment of the tenant in respect of non- residential building on the ground of personal use only in respect of the landlord himself or his "male children", Mr. Fazeel did not press the case for the daughters of the deceased landlord. But since the passing of the ejectment order the landlord having died, his rights in the property in which the present premises are located have devolved upon his heirs including his two daughters and a son who have stepped into his shoes as the landlords of the building and whose names have been substituted in his place in these proceedings. It was contended by Mr. Akhtar Mehmood, learned counsel for the respondents, that since at the stage of the institution of proceedings the disputed premises could not he obtained for the use of female children of the then landlord, they cannot now press their case on that basis. That may be so but at the same time it cannot be said that the accommodation for the clinic already in the occupation of the landlord is now wholly available for his son Dr. Aftab Ahad Khan. There is a finding on the record by the Additional District Judge that the daughters of the deceased intended to join him in running the clinic. It was sought1 2 to be established by the respondents that since his daughters were not working with him at the time of the proceedings the claim of the landlord was unjustified. But the learned Additional District Judge did not . Uphold the objection of the respondents and came to the following conclusion :- "In the present case the requirement of the landlord. Appears to be not only for better purpose, namely, for extending the clinic to cover X-Ray and Pathological and Maternity purposes and also for providing work to his son and daughters.....................
Reference has been made to these conclusions from the evidence on record is order to show that on the death of Dr. Abdul Ahad Khan the accommodation already available with the landlord cannot be held to have obliterated the need of his son Dr. Aftab Ahad Khan. The death of the original landlord( - has, therefore, no material bearing on this case.
10. The other reason given for the requirement of additional accommodation relates to the claim of the landlord for the purpose of extending the clinic which he was running. In support of this part of his case the landlord had besides his own oral evidence produced documentary evidence as already mentioned. In this behalf it is important to refer to the letter from Rizsons dated 23-1-1969 addressed to the landlord in response to his inquiry. This letter contains the estimate of cost of equipment and alterations in clinic for the purpose of X-Ray equipment and Pathological Laboratories. It further states as under :- "Our representative has visited your clinic and has taken measurement of the space. In order to save time, we request you to arrange for the vacation of the rooms on the ground floor to' enable us to start work on alterations and laying foundations etc. For the equipment to be installed."
' The next document of importance is the letter by the landlord to the Vice-President of Habib Bank Limited for the grant of the loan of Rs, 35,000. The landlord has stated in this letter that his clinic needs improvement as a result of the public demand to provide X-Ray machinery, Pathological Laboratories and Surgical sections which he wanted to install. Then there is document containing the memorandum of deposit of title deed in connection with the equitable mortgage by the Habib Bank Limited dated 2-3.1968. It is rightly contended by the learned counsel for the appellants that the learned Judge in the High Court did not advert to these documents while disposing of the issue regarding the requirement of the landlord for the purpose of extension of the hospital. This being material evidence coming from disinterested sources in the shape of documents could not be ignored while upsetting the finding of the learned Additional District Judge who bad relied upon this evidence to a great extent. Mr. Akhtar Mehmood objected to the consideration of these documents on the ground that they were not proved according to law and consequently their contents cannot be looked into. However, this objection being an objection as to the mode of proof of document cannot be allowed to be raised at this stage, when no such objection was taken at the time of the admission of these documents into the evidence. (See Malik D Din v. Muhammad Asians ----These documents _taken into consideration lend credence and corroboration to the landlord insertion that he required the disputed premises for the purpose of installation of X-Ray and Pathological Laboratories.
11. The contention of the learned counsel for the appellants was that the finding arrived at by the learned Additional District Judge was fully borne out by the evidence on record and the High Court was not justified in reversing the same on the grounds mentioned in the impugned judgment. After going through the evidence on record and hearing the arguments of the learned counsel for the parties I agree with this submission. In my opinion, the contradiction 'between the case set up in the application by the landlord and in his deposition as regards his requirement for the purpose of Maternity section is not so serious as to reflect upon the bona fides of his entire claim. Besides if there was a material contradiction he should have been confronted with the pleadings so that he could have had an opportunity to explain the so-called contradiction. In any case the landlord has by abundant evidence justified his requirement for establishing X-Ray and Pathology sections. The3 first three grounds mentioned in para. 7 above from the impugned judgment are, therefore, not very material for altering the finding recorded by the Court below. As regards the fourth ground there is no doubt that the landlord gave no exact particulars as to his requirement . Separately for X-Ray and Pathological sections. But the case .Of the respondents was also not that these facilities were already available in the clinic of the landlord. The question had to be decided on the preponderance of evidence on either side and considering the documentary evidence discussed above it seems to me that the evidence produced by the landlord was substantial that his requirement was genuine. The fifth ground regarding the requirement of daughters was not material as the learned Additional District Judge finally granted ejectment for the personal use of the landlord and his son only. As regards the sixth ground the grievance of Mr. Fazeel was that the affidavit filed on behalf of the landlord was rejected by the learned Judge in the High Court on the ground that the deponent had not made himself available for cross-examination but at the same time on the same question the learned Judge took into consideration the facts disclosed in the respondent's affidavit filed at the appellate stage in which also the deponent was not cross- examined. The additional fact that Dr. Aftab ' had not returned to Pakistan was brought! On record through an affidavit and not in the evidence. The learned Judge, therefore, could have considered the affidavit on behalf of the landlord disclosing the circumstances in which Dr. Aftab had not returned to Pakistan due to lack of accommodation in his father's clinic. At any rate he has eventually returned and there was no dispute before us between the parties that he had permanently come back to Pakistan.
12. On an overall consideration' of the evidence it appears to me that the landlord had sufficiently established the requirement of the premises for' personal use. Nothing has been pointed out to us from the record to indicate that the landlord or his children had any ulterior motive in asking for the eviction of the respondents except a vague allegation orally made by the witness of the respondents that the possession was being obtained for letting out the premises on Pugree. One aspect of the matter that seems to have escaped the notice of the learned Single Judge was that the desire of the owner of a clinic for the time being to convert it into a full-fledged hospital by providing X-Ray and Pathological sections is a business requirement connected with the efficiency and operation of the hospital establishment. The death of the landlord does not by itself, therefore, obliterate the basis of such requirement unless the plans for such improvement are abandoned by the successors of the deceased for which there is nothing on the record. On the contrary the heirs of the deceased, as already noted, are pressing for the eviction of the respondents on the same grounds after the death of the original landlord. In view of all these circumstances I am of the firm view that there was no misreading of the evidence or exclusion of material evidence from consideration on the part of the first appellate Court so as to call for interference with the finding of fact recorded by .Him, specially when there was no question of law raised in the Second Appeal.
13. In the result I allow this appeal and set aside the judgment of the learned Single Judge of the High Court dated 16-2-1976 and restore the order of eviction passed by the learned Additional District Judge dated 3-11-1970. In view of the fact that the respondents are using the premises for a running business I would grant four months period to them to hand over vacant possession to the appellants subject to the condition that they continue to pay the rent regularly until they vacate the premises. The respondents shall pay the costs to the appellants for this appeal. 1981 SC MR 637 1979 SCM R 372 PLD 1969 SC 1361 2 3