' Shop bearing No, 3-S-65 situated in Urdu Bazar, Sargodha, is occupied by Muhammad Ilyas petitioner as tenant at a monthly rent of Rs, 300.
2. On 21-1-1979 Ghulam Muhammad, the owner of the shop filed ejectment application under the provisions of the Urban Rent Restriction Ordinance, 1959, against the petitioner seeking his eviction on the grounds of default in payment of rent, bona fide personal need and the tenant having caused damage to the tenanted premises.
3. The application was of course resisted by the petitioner and the learned Rent Controller framed the necessary issues arising out of the parties pleadings. During the course of penuency of the ejectment application before the learned Rent Controller, Ghulam Muhammad, the owner, died and was replaced by his legal representative viz. Respondents Nos. 1 to 5. The learned Rent Controller vide his judgment dated 2-3-1982 dismissed the ejectment application. He found that the default in payment of rent and alleged damage by the tenant to the tenanted premises were not proved. On the question of personal need, he concluded that Ghulam Muhammad, the original owner, who had brought the ejectment application required the shop for the own personal need and not for that of his male children. The personal need of Ghulam Muhammad died with his death and on that score his legal representatives could not seek eviction of the tenant.
4. The respondent preferred an appeal and the learned Additional District Judge i,e, the Appellate Authority, under the Rent Restriction Ordinance, 1959, observed that personal need of the landlord included that of his sons and, therefore, with the death of Ghulam Muhammad, the personal need of his sons did not vanish. He thus set aside the findings of the learned Rent Controller on the question of personal need, accepted the appeal and ordered the eviction of the petitioner, the tenant, on the ground of personal need. He did touch the findings of the learned Rent Controller on the questions alleged default in payment of rent and causing of damage to the tenanted premises by the tenant. As a matter of fact, on the said questions, the findings of the learned Rent Controller were not expressly challenged through the memo of appeal filed by the respondents.
5. The petitioner has now assailed the aforesaid order dated 4-4-1983 passed by the learned Additional District Judge by invoking the constitutional jurisdiction of this Court.
6. Section 13(3)(a)(ii)(a) provides that a landlord may apply to the Controller for an order directing the tenant to put the landlord in possession, in the case of a non-residential !Adding or a scheduled or rented land, if he requires it in good faith for his own use or for the use of any of his male children.
7. In the circumstances of the instant case, Ghulam Muhammad, the predeccessor-in-interest of the present respondents in paragraph 4(b) of his ejectment application pertaining to personal need contended that he needed the tenanted property for his personal business as he had no other shop within limits of Sargodha Municipality while the tenant was owner of a shop situated in Block No,
19. He did not plead that the shop was required by him for the use of his sons or any one of them.
8. In Muhammad Aihraf v. Mst. Azizan and 4 others (1), it was observed :- "A careful examination of the provisions of sub-paragraphs (i)(a) and (ii)(a) of paragraph (a) of subsection (3) of section 13 of the Ordinance would reveal that the expression 'for his own occupation' used in subparagraph (1)(a) has a different connotation from the expression 'for his own use' occurring in sub-paragraph (ii)(a) inasmuch as in the case of a residential building the landlord may occupy it alongwith his family as the expression 'for his own occupation' has been rightly interpreted to impress not only the needs of the landlord but also the needs of his family.
' In the case of non-residential building, however, the landlord's need may not be the need of his family because law permits him to get the nonresidential building vacated only either for himself or for the use of any of his male children. In other words, a landlord is not entitled to get a non- residential building vacated for the family members of his family. An order of ejectment passed against a tenant of a non-residential building, on the ground that the rented premises were required in good faith by the landlord for his own use would not enure to the benefit of the legal representatives of the landlord after his death." {{FOOT NOTE}}
(1) PLD 1981 Lab. 201 {{FOOT NOTE}} ' It was thus held :- "In view of the above facts and consideration, the order of ejectment passed against the appellant in respect of shop in his possession does not enure to the benefit of respondents Nos. 1 to 4 because the appellant was required to vacate the rented shop only for the use of his landlord Muhammad All since deceased. Learned District Judge's view that the rented shop can be used by Muhammad Tufail, respondent No, 4, son of Muhammad All deceased, as he is jobless, cannot be upheld."
9. Similarly, in Sheikh Muhammad Bashir v. Atta Ullah (I), it was held that after the death of the original landlord, the cause for the personal use and occupation of a shop should not be pursued.
It any of the sous of the original landlord was capable of doing the business and was 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.
10. The learned counsel for the respondents has placed reliance on Abdur Rehman v. Fazal Karim through L. Rs, (2). In this case, eviction application was filed by landlord on the ground of requirement of shop for his personal use. He had not specifically mentioned that he also required the tenanted premises for use of his son. Plea was raised that after death of the landlord, eviction could not be ordered on the ground of requirement of sons of the deceased landlord. This plea was not sustained. While rejecting the plea that after the death of the landlord eviction could not be ordered on the ground of requirement of the sons of the deceased landlord, the Sind High Court was persuaded by an unreported judgment dated 28-1-1900 passed by the honourable Supreme Court of Pakistan in appeal, arising out of Second Appeal No, 385/71. The said judgment was, however, based on the statement of the parties made before the honourable Supreme Court whereby the case was remanded back by the Supreme Court for recording fresh additional evidence on the question of bona fide personal need of the male children of the deceased tenant in order to save multiplicity of the proceedings and to go down unnecessary fresh litigation between the parties.
11. In the under consideration case, the course of action adopted by the honourable Supreme Court of Pakistan in its order, dated 28-1-1980 has not been followed by the learned Rent Controller or the learned District Judge. Moreover, the Supreme Court's order was in fact based upon the statement of the parties while no such statement has been made in the present case.
12. In the light of the above discussion, the Correct legal position would appear to be that requirement of the landlord in case of non-residential building as envisaged in section 13(3)(a)(ii)
(a) of the Urban Rent Restriction Ordinance, 1959, does not enure for the benefit of his legal representative after his death, particularly when he had not based his ejectment application on the ground that he required the tenanted premises for the use of any of his male children.
13. In this view of the matter, the view adopted by the learned Additional District Judge in his impugned judgment that the personal need of the landlord or that of his sons means one and same thing is held to be fallacious and not in accordance with the aforementioned provisions of the Rent Restriction Ordinance. This Writ Petition is accordingly allowed and {{FOOT NOTE}} (1)1982 CLC 1577 (2) 1982 CLC 2641 {{FOOT NOTE}} ' the impugned judgment dated 4-4-1983 passed by the learned Additional District Judge, Sargodha, is declared to be without lawful authority and of no legal effect. Consequently, the order passed by the learned Rent Controller, Sargodha on 2-3-1982 stands restored whereby the ejectment application filed by the respondents, predecessor-ii-interest, against the petitioner, stands dismissed. No order, however, is made as to costs.