1. ZAFFAR HUSSAIN MIRZA, J.--This is a petition for special leave to appeal from the judgment of a learned Single Judge of the High Court of Sind, Karachi, dated 24-8-1981, whereby the Second Appeal filed by the respondent was accepted and the case was remanded to the Controller for a fresh decision on the material issues arisin from the pleadings of the parties, after they have been given opportunity to lead further evidence.
2. The facts briefly are that respondent sought the ejectment of the petitioner from the demised premises in his occupation on four grounds, namely, default in the payment of rent, requirement for bona fide personal use of the premises by the daughter of the respondent, damage to the building and nuisance. The Controller, by his order, dated 12-5-1979, dismissed the ejectment application filed by the respondent. The admitted position is that, as pointed out in the impugned judgment of the High Court, the Rent Controller through some mistake gave decision with reference to issues contained in the draft issues submitted by the petitioner and not the issues actually framed by the Controller. The First Appeal filed by the respondent was also dismissed by the learned VI Additional District Judge, Karachi, on 10-8-1980, which was also confined to consideration of the issues erroneously taken up and decided by the Controller. The respondent then filed a Second Appeal before the High Court, in which although the error relating to the decision of wrong issues was duly noticed by the learned Single Judge, it was held that the issue regarding the default in the payment of rent was correctly decided by the Courts below. The decision on this issue, therefore, stood concluded. On the question of bona fide requirement of the premises by the respondent, the learned Single Judge disagreed with the interpretation of section 13(3)(a)(i) of the Urban Rent Restriction Ordinance, 1959, and held that requirement for the use of a married daughter by landlord was also included in the aforesaid provision. Since, therefore, the Courts below had proceeded on a misconception of law in not examining the question of requirement of the respondent for bona fide use of her daughter on merits, the learned Judge felt it appropriate to remand the case to the Controller for reconsideration of the issue. Also since the Controller had failed to decide the issues with regard to damage to the property and nuisance, all these issues were directed to be decided afresh. However, it was further observed:- The parties may be given opportunity to lead any further evidence which they may desire and the Rent Controller will make every effort to dispose of the case expeditiously."
3. Mr. Shabbir Ghaury appeared before us for the Caveator (respondent) and with the consent of the counsel for the parties, we have converted this petition into appeal and propose to dispose it of accordingly.
4. It was first contended on behalf of the appellant, on the basis of Fateh Ali v. Pir Muhammad 1975 SCMR 221, that the High Court was not competent to remand the case to the Controller and ought to have decided the issues since the evidence was led by the parties on the issues framed by the Court of the Controller. The cited case is not an authorise for the proposition canvassed by the learned counsel for the appellant, that under Order XLI, rule 24, C.P.C., the Court is under an obligation to decide issues left undetermined by the Court below. The matter whether an Appellate Court should itself decide the case in such a situation or remand it to the Court below, lies within the discretion of the Appellate Court to be exercised judicially, in terms of Order XLI, rule 24, C.P.C.
5. There is nothing in rule 24. Which binds the appellate Court to finally decide the case itself. The use of the word "may" clearly imports that the provision is not mandatory but is an enabling provision. It will be seen that no decision was given by the Courts below on the issues relating to damage to the property and nuisance, while the issue relating .To personal requirement ,was disposed of on a preliminary point. The Court was accordingly competent under Order XLI, rules 23 and 25, C.P.C., to remand the case for fresh decision'.
6. It was then contended by the learned counsel for the appellant that the view of the High Court that section 13(3)(a)(i) of the Urban Rent Restriction Ordinance extends to the requirement of a child who is no longer dependent on the landlord was erroneous and untenable. We see no force in this submission, and are unable to give such restricted meaning to the plain words of the clause in question which seems to extend the ground of personal requirement to the use of the landlord's children, no matter whether they are dependent on him o not. It was also argued on the basis of Muhammad Zahir Khan v. Ch. Shah Muhammad PLD 1980 Lah. 28 that the word "children" denote] sons and daughters of the landlord and not descendents beyond the first generation, like grand children. Counsel sought to refer to the evidence on record to show that the case of the respondent was that the premises were not only required for the use of respondent's daughter but also the children of the latter. Since we propose to uphold the order of the High Court remanding the case for fresh decision to the Controller, we would not like to pre-empt the decision by the Rent Controller on the merits of the case. It will be for the Rent Controller to determine this question whether the requirement of the premises for the use of respondent's daughter alongwith her children is bona fide or not. We would only refer here to a decision of this Court in Abdus Salam v.
7. Najam Parvez 1976 SCMR 52, in which this Court held that the personal need for the use of a brother of the landlord who was dependent on him, would be included in the words "own occupation" and these orders cannot be confined to the personal requirement -f the individual landlord alone. On a parity of reasoning if it is established by a landlord that the premises are required for the bona fide use of a child, then the use for the purpose of those dependent on such child would also be covered by the provision, if the premises are required for the use of such child alongwith his or her dependents.
8. Lastly, the learned counsel for the appellant made a grievance that there was no justification for the High Court to give a fresh opportunity to the respondent to lead additional evidence before the Rent Controller, since the parties had already closed their evidence after a proper opportunity was given to them. The learned counsel for the respondent does not oppose this submission and agrees that the order of the High Court may be modified to this extent that the Controller will be required to give a fresh decision as directed by the High Court, but no party will be entitled to lead any additional evidence. We order accordingly.
9. In the result with the modification as stated earlier, this appeal is dismissed with no order as to costs.