' This First Appeal is directed against the order of the second Rent Controller, Karachi dated 20th December,1979. The Rent Controller ordered the appellant to hand over the vacant and peaceful possession of the premises in question to the respondent within a period of 90 days from the date of the order. The appeal was pending in this Court since three years till it was argued today by the learned Advocates Mr. G. H. Malik, for the appellant and Mr.Abrar Hassan for the respondent.
2. The facts which have given rise to the instant appeal are briefly that Mst. Shakila Yaqoob filed Rent Application under section 13 of the West Pakistan Urban Rent Restriction Ordinance 1959 for ejectment of the appellant/tenant Syed Abdul Latif on the ground of default and personal requirement of the premises bearing Shop No,4 situated on Plot No,1569 Block 14 Federal 'B' Area, Karachi. The respondent is the owner and the landlady of the shop in question and the appellant was her tenant in the aforesaid shop paying rent at the rate of Rs,80 per month. In the Rent Application it was alleged that the appellant failed to pay the rent since September, 1976 and further that the respondent required the premises in case for her own use.
3. The appellant filed the written statement in which he denied the allegation of the respondent. He denied the fact that he committed any default towards payment of the rent and has further contended that the respondent does not require the premises in case for her own use in good faith.
On the pleading of the parties the following issues were framed:-
(1) Whether the opponent has committed default in payment of rent?
(2) Whether the applicant requires the premises for her own use for doing the business?
(3) What should the order be?
' The issue No,1 was answered in the negative while Issue No,2 was answered in the affirmative and hence the impugned order was passed.
4. The arguments of the two Advocates Mr. G. H. Malik, for the . Appellant and Mr. Abrar Hassan, for the respondent were heard at length. A short point is involved in this case. Precisely the point formulated would be whether the respondent/landlady required in good faith the premises for her own use would include the use of her husband also. In other words a liberal construction be given to sections 13(3)(a)(ii). Clause (3)(a) is quoted as under:- "(3) (a) A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession;
(i) in case of a residential building, if;
(a) he requires it in good faith for his own occupation or for the occupation of any of his children;
(ii) in the case of a non-residential building or a schedule 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;"
5. Muhammad Yaqub is the husband of the landlady Mrs.Shakila Yaqoob. He is the attorney of his wife. In his evidence he avers that Mrs. Shakila Yagoob is the owner and the landlady of the premises in case. The appellant Syed Abdul Latif is her tenant. The shop was rented out to the appellant about 4/5 years ago and at that time he was in Dadu operating a bus. In other words he was doing bus business. He came to Karachi in 1975 with family and wanted to do business at Karachi. He supports his family, therefore, a need arose to have a shop which would be required for use in the business. He resided on the upper portion of the shop in dispute. He has six daughters and a wife but no son. The appellant, however, denies the bona fides of the respondent and states that the landlady owns shops Nos.1 and 3 also in the same land. Shop No,5 is locked and, therefore, it is presumed to be in possession of the respondent. These contentions of the appellant were rejected by the Rent Controller. The landlady has the choice to get vacated premises which are suitable for her business through her husband to support the children.
6. It is contended by the learned counsel for the appellant that the word "use" in the section quoted above is not meant for the use of the husband of the landlady. She has no male child and has only six daughters. The broad fact in this case is that the landlady wants the premises for doing business through her husband who holds her power-of-attorney. It would be naturally construed that the landlady wants to do business to support her children through her husband. Nowhere in the evidence it is shown that the husband would do business independently apart from his wife whom he is supporting finacially or otherwise. The word "her use" means her use through her husband. The liberal construction is to be placed seeing to the set of circumstances in the present case. The learned counsel for the appellant has referred to NLR 1978 Civil 1167. The relevant portion from the judgment is reproduced as under:- "The legal question about distinction between "occupation" and "use" has been raised on the assumption that the property in dispute is required for the business of the husband and not for her own business. This assumption is not correct in view of the finding of fact that the requirement is for the personal business of the respondent. The finding of fact is unexceptionable in view of the evidence referred to above. From the very beginning the case of the respondent was that she would conduct her business through her husband and her son. Same is the evidence of P.W.1 and P.W.2. The Bank account has been proved only to substantiate that she had money to invest as capital in her own business. The mere fact that her husband and her son would carry on the business on her behalf does not mean that the business would be of the husband and the son."
7. I wonder as to how the authority quoted above supports the appellant. The case of the landlady Mrs. Shakila Yaqoob is that she needs the premises in question for doing the business and it is quite clear that the business would be run by her husband who left the business of bus transport at Dadu. The learned counsel states that in the Rent Application itself the averment made by the respondent/landlady is that the premises is required for her own use in contra distinction to the use of her husband. Now this proposition is to be constructed and a liberal meaning may be given to the word "use" uttered by the landlady in the Rent Application. She wanted to do business through her husband. But becasue she has not uttered so in the Rent Application, the learned counsel for the appellant is of the view that she does not need the premises for doing business herself in good faith. This appears to me to be too conservative a view and the set of circumstances which attend to the present case are that the business could be done through her husband. He has also referred, to Muhammad Younus v. Iqbal Begum PLD 1980 Lah.
577. It was held in this case that husband is not one of the persons for whose benefit a non- residential building can be got vacated because the use of the respondent/landlady could be extended beyond the scope of sub-clause (ii) of Clause (a) of Section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959. It was held in case this contention is accepted it would amount to changing law for which Courts do not have any power and a such findings of the Additional District Judge on the issue of personal requirement cannot be upheld.
8. The abovenoted ruling could be distinguished in the present case. It is not for the benefit of the husband alone that premises are required. It is not the absolute benefit of the husband or the husband would do the business independently apart from the landlady. If the husband does business independently apart from the wife/landlady then this ruling would apply.
9. On the other side the learned counsel for the respondent has relied upon PLD 1965 Kar. 408 and PLD 1967 Kar.
437. In the citation of PLD 1965 Kar. 408 Qadeeruddin,J. Has made broad observations giving guideline and I quote the relevant portion from the judgment as under:- "The above examination of the provisions of law on which counsel for the appellant has relied leads to the conclusion that the requirements of paragraph (b) have been properly taken into consideration by the learned District Judge and that the words "for his own occupation" which occur in paragraph (a) should be taken to include all genuine requirements of the landlord and not to be restricted to the requirement of a shelter for his own body and the bodies of his children. This is indicated the words "suitable for his needs" which occur in paragraph (b). The reeds of the landlord cannot be discriminated so as to separate the inner needs and outer needs of his body because both of them are projected on his environments. His hunger may be projected "in the form of a need for a kitchen and his need for physical comfort may be projected in the form of a need for servants; nor can "his needs" be restricted to physical needs in contradistinction to social, economic, intellectual, emotional and spiritual needs, which may be projected in the form of a need for a sitting room, for an office, for a wife, for children, for a room reserved for prayers or for a room reserved for maintaining a library. The needs would differ from landlord to landlord and some of those which may be genuine in one case may not be so in another case; nor is it open to the landlord to declare his needs as his own subjective decisions, firstly, because his needs reflect the ideas of the society and secondly because his rights are controlled by the society."
10. In the case reported in PLD 1967 Kar. 437 following observations are made by Noorul Arifin, J.:- "The expression "for his own occupation" in section 13 (3)(a)(i)(a) of the West Pakistan Urban Rent Restriction Ordinance, 1959 embraces not only the needs of the owner but also the needs of his family. The words "or for the occupation of any of his children" merely relate to situation where an owner desires to provide independent and separate residence for his married or grown up children.
Where, therefore, a landlady requried the tenement in question for her own occupation and this requirement "was stated by her to have been necessitated by illness of her husband for whom the tenement in question was considered as a more healthy place to live in, it was held that in view of the requirement being genuine and bona fide it was proper ground for eviction of the tenant under section 13(3) of the West Pakistan Urban Rent Restriction Ordinance, 1959."
11. The above two authorities in which broad principles are formulated and they are equally applicable to the present case although the present case deals with the requirement of the premises for business purpose. It is the requirement for the use in the business purpose. Even otherwise if the husband is not employed in doing business, she can do very well business starting a shop of General Stores and can run the shop personally. In view of this matter the appeal has hardly any force. The appeal is dismissed with no order as to costs. It is hereby ordered that the appellant should. Hand over vacant and peaceful .Possession of the premises in question to the respondent within a period of 60 days.