1. ' The respondent predecessor-in-interest of Muhammad Bashir purchased the disputed property under a conveyance deed dated 23-1-1975 and sent a notice to the appellant under section 13-A of West Pakistan Urban Rent Restriction Ordinance, 1959 dated 30-9-1975 intimating him about the purchase of the property. As this notice was not served another notice dated 31-10-1975 was served on the appellant which was replied by his Advocate's letter dated 13-11-1975 requesting Bashir to send a copy of the sale-deed. It was also stated that the appellant had a tenancy agreement with one Umar on a monthly rent of Rs,
125. Another legal notice dated 9-12-1975 Exh. A/7 was served on the appellant calling upon him to hand over the vacant possession to the respondent as the premises was required for his bona fide use and occupation for running his saw machine. As the appellant did not vacate the premises the said Muhammad Bashir flied ejectment application on 2-1-1976 on ground that the premises is not used for the purposes for which it was rented out, that the premises is required for his bona fide use and for his major children for running a saw machine which he has purchased and is lying idle for want of accommodation. The appellant filed written statement in which he averred that Muhammad Bashir had purchased the plot and not the construction thereon. He also stated that he has installed there the saw machine at his own cost.
2. He denied that he has committed default or that the respondent requires the premises for his bona fide use and occupation. The learned Controller by the impugned order dated 30-5-1982 granted the application holding that the premises is required bona fide by the respondent and for his children other issue was not pressed. The appellant challenged this order in appeal, but during its pendency Muhammad Bashir died and his legal heirs have been joined as respondents.
3. ' Mr. Hafiz Abdul Baqi the learned counsel for the appellant has contended that the application for ejectment was not maintainable for the simple reason that the premises of which the appellant is a tenant does not fall within the definition on non-residential building'. From the record it seems that in the pleading no such objection was raised, nor any issue was framed. Mr. Hafiz Abdul Baqi states that at the time of argument this objection was raised before the Controller. As this objection does not require any further evidence nor the appellants wish to lead any additional evidence and it is entirely a question of law relating to the jurisdiction of the Controller, I have allowed him to raise it. From the evidence on record, it is clear that before the purchase of plot by Muhammad Bashir the appellant had been a tenant of this land of which Umar was the owner. From the sale-deed produced by the respondent it is established that he had purchased the land and not the structure standing on the plot. The appellant has also in clear terms stated that after taking the land on rent he installed the sew machine, therefore, the land was rented out to him where he installed his saw machine for business purposes. On these established facts the disputed land does not fall within the definition of non-residential building. In section 2(f) Urban Rent Restriction Ordinance, the word 'rented land' has also been defined as follows: "rented land, means any land Let separately for the purposes of being used principally for business or trade."
4. This definition squarely applies to the land of which the appellant is a tenant. He is, therefore, tenant of the rented land in respect of which the Controller is empowered under section 13(3)(a)(ii) to eject a tenant. The ejectment application, in my opinion is maintainable. The learned counsel for the appellant has referred to Mashir v. Mst. Zubeda 1983 CLC 390. In this case the facts were completely different, because the disputed premises was not a rented land, but consisted of land construction and saw machine installed therein. As the entire property including the machine was rented out it was held that the provisions of the Ordinance were not applicable. The next contention of the learned counsel for the appellant is that the respondent's predecessor has failed to establish that the premises is bona fide required by him and for his children. Suffice to say that the appellant has admitted that Muhammad Bashir was carrying on business of making wooden boxes with his son. Muhammad Bashir has stated that it was carried in a rented shop. He has twelve children out of which on the date when the application for bringing the legal heirs on record was filed only two were minors; He has six sons out of which five are majors, one is minor. Two of his sons, are admittedly in Saudi Arabia and rest of the sons at the time when the statement of Muhammad Bashir was recorded in May, 1979 were receiving education. The statement that Bashir has closed his business of making wooden boxes has not been established and it seems that he had been carrying on that business. He had purchased a saw machine for installing it but as he did not have proper place to store, it was damaged due to flood. It may also be noted that from the date of notice Exh. 7 till the date when Bashir was cross-examined he had been consistently demanding that he required the premises for installing a saw machine. Mr.. Hafiz Abdul Baqi the learned counsel for the appellant contended that as the respondent is carrying on business at one place which was owned by him, he was not entitled to seek ejectment of the appellant. There is no evidence that the place where Muhammad Bashir was carrying on, business was owned by him, therefore, mere carrying on business at a place not owned by the landlord or at a rented premises will not debar him from making a claim on the basis of his personal requirement.
5. ' Mr. Hafiz Abdul Baqi the learned counsel contended that in his statement the respondent has not stated that he requires the premises for the use of his children. It is correct that he did not make such a specific statement. He had only stated that he required for his own use. In any event Bashir had established that he required the premises for his business and P.W.2 (Exh. A/8) in cross- examination stated that Bashir's sons work with him. He has 12 children two of whom were employed in Saudi Arabia and the rest were under education. Bashir was carrying on business and the possibility of keeping his children with him cannot be ruled out particularly when P.W.2 has also confirmed it. The learned counsel for the appellant relying on 1982 CLC 1696 and PLD 1976 Kar. 1231 contended that as none of the sons of Bashir have been examined, the bona fide is not established.
6. In the first precedent case it was specifically pleaded that the premises was required by the landlord for his own son who was major. In these circumstances it was felt necessary that he should have been examined. In the second case the premises were required for the son and two daughters who were doctors and wanted to start their medical practice in the disputed premises. It was held that as two daughters and son were doctors and were holding independent employment, they should have been examined. In the present case the premises was not specifically required for the son, nor it was the case of Bashir that he wanted to establish his children separately and independently. He wanted to establish his business and install his own saw machine in which his children would have joined. In fact the main requirement was of Bashir and that of his son was secondary. In such circumstances, it was not necessary to examine any one of his children.
7. ' The question whether the son for whom the premises is required should be examined or not has to be considered on the facts and circumstances of each case. Where the requirement pleaded by the father is of a general nature concerning the family member it is not necessary to examine the son provided such requirement is established by the evidence of the parents or by independent evidence. However, if the requirements is of special nature which can be explained by the son or the son is economically independent or is engaged in some business, service or profession and requires the premises for his own use, then such son should be examined and his non-production may adversely affect the claim.
8. ' The learned counsel for the appellant then contended that after the death of Bashir the requirement has also vanished and the legal heirs, brought on record cannot take benefit of his requirement. Firstly the deceased had applied for the use of his children also and same was accepted by the Controller, and those very children have been joined in the proceeding which shows that they are interested in pursuing the matter to the hilt. Secondly the death of Muhammad Bashir has occurred after the order of ejectment had been passed. The order of ejectment has created a right in the legal heirs who can reap its benefits and execute that order in the same manner as their father would have done. The appeal is, therefore, dismissed. Mr. Baqi requests for six months time to vacate the premises. As the premises is commercial one the appellant is allowed to vacate and hand over the disputed premises to the respondents on or before 15-4-1985.
9. Appeal is dismissed.