1. ' These second appeals arise from the judgment of learned IInd Additional District Judge, Karachi, dated 19-11-1981 whereby he allowed the appeals filed by Mst. Arsh Bibi, respondent/applicant against the orders passed by Rent Controller, Karachi, dated 1-12-1974 by which he dismissed the ejectment application filed by the respondent. As both these appeals are against the common judgment of the learned Additional District Judge they are being disposed of by a composite judgment.
2. ' The facts which give rise to these appeals are that the respondent had purchased the plot of land bearing No.RC. 5/5 with katcha construction situated in Revra Jalal Street, Ranchore Line, Karachi vide conveyance deed, dated 20-9-1968 executed by previous owner Hameer son of Mullah. It is not in dispute that the land in question is 'rented land' within the meaning of section 2(f) of the West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter called the repealed Ordinance) inasmuch as the land was taken by the appellants for the purpose of blacksmith workship since last 40 to 50 years. The respondent filed ejectment application Nos. 1773 of 1970 and 1774 of 1970 against the abovenamed appellants being her tenants of different portions of the said rented land.
3. One of the grounds in support of her claim for ejectment was that the respondent is an educated lady and she has no place of residence of her own and has been residing in a small room with her parents alongwith her husband and three children. She had purchased this property for her and her children's bona fide use and occupation as she was not occupying any other residential building suitable for her need and she needed the land for erection of a residential building. It is this ground with which I am mainly concerned in these present appeals. The case of the appellants on the other hand was that even if the respondent required the land for construction of a residential house, she could not be given an order of ejectment under section 13(a)(ii) of the repealed Ordinance.
4. ' The Rent Controller held that it was clear that the respondent did not need the land for running any business and only needed it for constructing a residential house for herself and tier children. He took the view that rented land could only be got vacated under section 13(3)(a)(ii) of the repealed Ordinance if the landlady needed it for a business purpose. On the other points raised in the ejectment application the Rent Controller found against the respondent. Therefore he dismissed the application.
5. ' The respondent being aggrieved by orders, dated 21-12-1974 of the Rent Controller, filed Appeals No. 53/1975 and 54/1975 in the Court of District Judge, Karachi, which was ultimately transferred to the Court of Ilnd Additional District Judge, Karachi. The Ilnd Additional District Judge, Karachi, by his common judgment, dated 19-11-1981, allowed the said appeals and set aside the order, dated 21- 12-1974 of the Rent Controller. He was of the view that it was open to the landlady to get a tenant ejected from rented land under section 13(3)(a) (ii) of the repealed Ordinance whatever may be the purpose for which the landlady required the land for her own use.
6. ' The appellants abovenamed, being aggrieved by the common judgment, dated 19-11-1981 of the IInd Additional District Judge, Karachi, have preferred these second appeals on the grounds mentioned in the memo. of appeals.
7. ' In support of the above appeals Mr. Wajihuddin Ahmed, the learned counsel for the appellants, has made the following submissions:-
(i) The respondent could not claim for self-occupation a non-residen tial building.
(ii) At the time of transfer, by way of deed of sale the 99 years lease stood expired and the seller had no title to transfer.
(iii) The sanction itself had lapsed and its renewal was not obtained.
8. ' On the other hand Mr. M.M.Baig, the learned counsel for the respondent, has submitted that the requirement for personal use and the requirement for reconstruction of a residential building on non residential building, are not destructive of each other. The land in dispute was mutated in the name of the respondent in the year 1968. The renewal of sanction is just a formality.
9. ' The West Pakistan Urban Rent Restriction Ordinance, 1959 was promulgated and the purpose of the Ordinance was to restrict the increase of rent of certain premises within the limits of urban areas and eviction of tenants. This Ordinance is a piece of ameliorative legislation in the interest of tenants of premises in urban areas so that they may be protected against large increase in rents and from harassm ent by eviction.
10. ' Section 13 of the said Ordinance provides for protection to tenants from eviction. Subsection (1) thereof inter alia lays down that a tenant in possession of a building or rented land shall not be evicted therefrom except in accordance with the provisions of that section. Subsection (2) then provides grounds on which a landlord may get a tenant evicted and applies both to building or rented land. Subsection (3) provides for special cases of eviction which reads as under:- "(3)(a) A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession.
(ii) in the case of non-residential building or a scheduled building 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;
(b) he or his said child is not occupying in the same urban area in which such building is situated for the purpose of his business any other such building or rented land, as the case may be, suitable for his needs at the time; and
(c) he has not vacated such a building or rented land without sufficient cause after the commencement of this Ordinance, in the said urban area.
11. ' The learned counsel for the respondent has submitted that the expression 'for his own use' in clause (a) is unqualified, the landlady can ask for eviction if she requires the rented land for her own use, whatever may be the use to which she may put the rented land after eviction. Thus it is urged even if a landlady requires the rented land in order to construct a residential building for herself. As in this case the respondent has stated definitely that she required the land for constructing a residential building for herself.
12. ' On the other hand the learned counsel for the appellant has contended that sub-clause (a) has to be read in this provision alongwith sub-clauses (b) and (c).
13. ' I am of the opinion that the contention raised on behalf of the appellant is correct. It is true that in sub-clause (a) the words "for his use" are not qualified, and first sight it may appear that a landlord can ask for eviction from the rented land if he requires it for his own use, whatever may be the use to which he may put it after eviction. Now if sub-clauses (b) & (c) are not there this would be the correct interpretation of sub-clause (a). I am of the opinion that sub-clause (a) has to be read in this provision alongwith sub-clauses (b) and (c) and it has to be seen whether the presence of sub-clauses (b) and (c) makes any difference to the meaning of the words "for her own use" in sub-clause (a) which is otherwise unqualified. Now if sub-clauses (b) and (c) are not there, a landlady can ask for an order directing the tenant to put her in possession in the case of rented land if she required it for her own use. In such circumstances it would have been immaterial what was the use to which the landlady cannot get possession of rented land merely by saying that she requires it for "her own use" (whatever may be the use) to which she may put it after getting possession of it. She has also to show before she can get possession, firstly, that she is not occupying in the urban area concerned for the purpose of her business any other such rented land. If (for example) she is in possession of any other rented land in the urban area concerned for the purpose of her business she cannot ask for eviction of her tenant for the purpose of her business. This clearly shows that though the words "for her own use" in sub-clause (a) are not qualified, the intention of Legislature must have been that if the landlady is in possession of other rented land for her business she cannot evict a tenant from her own rented land. It clearly follows from this that the intention when the words "for her own use" are used in sub-clause (a) is that she requires the rented land from which she is asking for eviction of the tenant for her business or trade. Otherwise I cannot understand why, if it is the intention of the Legislature that the landlady can ask for eviction of her tenant of rented land for any purpose whatever, she should not get it back if she is in possession of other rented land for her business. This, to my mind, clearly implies that sub-clause (a) has to be read in the light of sub-clause (b), and if that is so, the words "for her own use" must receive a meaning restricted by the implication arising from sub-clause (b).
14. ' Turning now to sub-clause (c) I find that the landlady has not only to prove before she can get the tenant evicted on the ground that she requires rented land for her own use that she is not in possession of any other rented land for the purpose of her business in that urban area but also to prove that she had not vacated any rented land without sufficient cause after the commencement of the Ordinance. Thus she has not only to prove that she is not in possession of any other rented land for her business but also to prove that she had not vacated any other rented land which she used principally for business without sufficient cause. This again shows that if the landlady had been in possession of land for business principally and vacated it, without sufficient cause she cannot ask for the eviction of a tenant from her own rented land on the ground that she requires it for her own use.
15. It should therefore be clear that "for her own use" in sub-clause (a) means use for the purpose of business principally for otherwise I cannot understand why, if the landlady had given up some rented land which she had taken for busines. principally she should not be entitled to recover her own rented land if she required it for constructing a residential building for herself. The very fact that sub-clauses (b) and (c) require that the landlady should not be in possession of any rented land for her own business and should not have given up possession of any other rented land, that is, land which she was principally using for business, show that she can only take advantage of clause (a) if she is able to show that she requires the rented land for business otherwise the restrictions contained in sub-clauses (b) and (c) would become meaningless, if it were held that sub-clause (a) would be satisfied if the landlady requires the rented land for any purpose as constructing a residential house for herself. I am therefore of the opinion that sub-clauses (a), (b) and (c) in this provision must be read together, and reading them together there can be no doubt that when sub-clause (a) provides that the landlady requires rented land for her own use, the meaning is that there is restriction to use principally for business or trade. I have already said that the Act is an ameliorative piece of Legislation meant for the protection of tenants, and I have no hesitation in coming to the conclusion that the words "for her own use" in sub-clause (a) in the circumstances must be limited in the manner indicated above, as that will give full protection to tenants of rented land and save them from eviction unless the landlady requires such land for the same purpose for which it had been let, that is, principally for trade or business.
16. Whatever little doubt there could be in the view that has commended itself, to me on this point, has been removed by reference to subsection (4) of section 13, the relevant subsection (4) reads as under: -
(4) "Where a landlord who has obtained possession of a building or rented land in pursuance of an order made under sub-paragraph (i) or sub-paragraph (ii) of paragraph (a) of section (3), does not himself or where the building, has been got vacated for the occupation of any of his children, such child does not occupy it 'without one month of the date of obtaining possession, or have been so occupied is re-let within two months of the said date to any person other than the original tenant, the tenant who has been evicted may apply to the Controller for an order directing that he shall be restored to possession of such building or rented land and the Controller shall make an order accordingly."
17. ' The above provisions contains a sanction for depriving a successful landlord/landlady of the fruits of an order of eviction obtained by him/her is case he/she does not occupy "the rented land" himself/ herself for his/her business after obtaining its. possession from the tenant who is evicted under the relevant provision. The use of the word 'it' in section 13(4) is significant in this behalf. If section 13(3)(a) (ii) could be construed to entitle a landlord/landlady to obtain possession of rented land for the purpose of putting up a commercial building thereon, it would be impossible for a tenant to avail of the statutory right conferred on him by subsection (4) in case the landlord/landlady were to let out the whole commercial building constructed by him/her on the rented land obtained from the tenant under an order of the Rent Controller or were to actually make a residential building thereon in place of commercial building or were not to occupy the same but sell it out. Such a construction canvassed on behalf of respondent would, in my opinion, completely defeat and nullify the statutory provision contained in subsection (4) of section 13. The right conferred on the tenant by section 13(a) is consistent with the above construction placed by me on section 13(3)(a)(ii). It is well-settled rule of interpretation of statutes that the Court must endeavour to harmonise different provisions in the same statute and prefer an interpretation which would tead to a harmonious construction rather than to lead to inconsistency.
18. ' This question has been considered by Mr. Muhammad Afzal Zullah, J. in his unreported judgment dated 7-5-1970 in Second Appeal No. 525 of 1970 Tonny D'Souza versus Tayyab All and 7 others in which he has come to the conclusion after giving cogent reasons, which are fully supported by the various authorities discussed by him in that judgment that "It is abundantly clear that when the Legislature selected the two words, that is, "occupation" and "use" for two clauses, it necessarily intended to convey different sense for each of them. The result, therefore, is that when in clause (3)
19. (a)(i)(a) it is provided that the residential building should be required by the landlord for his own "occupation or for the occupation of any of his children", the Legislature G intended that it should be a requirement of 'occupation for residential purposes' as compared to requirement of 'use for business purposes' and if the landlord requires a residential building to use it as business premises, clause 3(a)(i)(a) will not apply. I am respectful agreement with this judgment of Mr. Muhammad Afzal Zullah, J. (as he then was) for the reasons given by him in his judgment.
20. ' The learned counsel for the respondent has contended that the pleas of reconstruction of a building and its subsequent requirement for the personal need of the landlord are not mutually destructive, and in this connection, he took me through several cases, that is, Abdul Bari v. Khadim Hussain PLD 1978 SC 78, Ghulam Nabi v. Mushtaq Ahmed PLD 1980 SC 206 and Abdul Hadi alias Abdul Hadi Hassan and 2 others v. Syed All Haider and others PLD 1983 SC 342. There is no doubt the Hon'ble Supreme Court held that clause (vi) of subsection (2) of section 13 of the repealed Ordinance does not impose any restric tion, or limitation as to that type of a new building may be built on the site of the old building, after reconstruction. It is further held in those cases that if clause (vi) of subsection (2) of section 13 of the Ordinance does not, by itself, impose any restriction or limitation as to the nature and purpose of the new building which is to be constructed in place of the old building. If this clause is to be read as being subject to the provisions of subsection (5-B) of the same section in the sense that the nature and character of the building cannot be changed by reconstruction, then the result would be to prevent future development of property even though its environment and the requirments of the community at large may have changed. Such an interpretation would be altogether unreasonable and against the public interest, and should be avoided unless the words of the statute are so clear and unambiguous as to make it inevitable.
21. ' In the case of Ghulam Nabi v. Mushtaque Ahmed PLD 1980 SC 206 the Hon'ble Supreme Court interpreted subsection (5-B) of section 13 and observed as follows:- "This subsection only confers a right on a tenant to a lease of the demised premises after their construction, and as the Controller is empowered to lease to the tenant in the new building a smaller area than the premises originally demised to him, this express provision is inconsistent with the proposition that a landlord can reconstruct his property only in accordance with the needs of his tenant. Secondly, the option conferred on the tenant by this subsection continues until the completion of the new building and its occupation by another person. In view of the laws delays, this can only be many years after the landlord's reconstruction plan has been approved by the local Municipality, therefore, the plea that the landlord's rebuilding plan must conform to his tenant's requirements would lead to absurdity. Thirdly, whilst a landlord cannot evict his tenant except on the grounds prescribed in the said Ordinance, a tenant is free to vacate the demised premises after giving the contractual or statutory notice. As a tenant can terminate his lease unilaterally, it would be extremely unjust and unreasonable if the landlord's right to rebuild and develop his property was subject to the tenant's veto, and injustice is not to be lightly attributed to the Legislature."
22. 'The subsection does not automatically come into operation when the landlord constructs a new building, the tenant has to apply to the Controller for being put in possession in the new building.
23. ' Subsection (2) of section 13 provides grounds on which landlord/ landlady may get a tenant evicted applies to both to buildings and rented land. The learned counsel for the respondent has sought interpretation of clause (vi) of subsection (2) of the Ordinance and has also placed reliance on the decisions of the Hon'ble Supreme Court referred to hereinabove. I am not concerned with this subsection (2) in these appeals. In this view of the matter the above decisions are not applicable in the present appeals.
24. ' I observe that subsections (a), (b) and (c) of subsection (3)(a)(ii) of section 13, subsection (4) and subsection (5-B) impose restrictions or limitations on the landlord to construct a non-residential building only.
25. ' Mr. Wajihuddin, the learned counsel for the appellant, has contended that the respondent's title is extinguished and the appellant is not estopped from questioning her title to the disputed property.
26. In this connection, he took me through several cases, that is, (1) AIR 1937 Mad 865, (2) AIR 1945 Bombay 399, (3) AIR 1923 Nag. 91, (4) AIR 1934 All. 670, (5) PLD 1972 Quetta 47, (6) PLD 1974 Note l9 at p.55 and (7) PLD 1983 Pesh.
27. 234.
28. ' On the other hand Mr. M.M. Baig, the learned counsel for the respondent, has submitted that the appellant is estopped from questioning the title of the respondent/landlady under the provision of section 116 of the Evicence Act. Section 116 of the Evidence Act reads as follows: - "116. Estoppel of tenant; and of licence of person in possession.--No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property by the licence of the person in possession thereof shall be permitted to deny that such person had a title to such possession at the time when such licence was given."
29. It is not disputed in these Second Appeals that the tenancies were created about 40 or 50 years ago when the appellants were inducted. The respondent proved that she purchased the land in dispute by registered conveyance deed on 20-9-1968. It is also not disputed that the original grant expired by efflux of time and the grantor has suspended renewal for the time being. In the background of these facts it is contended that the doctrine of estoppel envisaged in section 116 of Evidence Act would no longer operate.
30. ' The law is well settled that a tenant, who has been let into possession cannot deny his landlady's or landlord's title at the commence ment of tenancy, however defective it may be so long as he has not openly restored possession by surrender to his landlord or landlady. Section 116 of the Evidence Act embodies this doctrine of estoppel but it is not exhaustive of all cases of estoppel between landlady and tenant. There are however exceptions to this rule of estoppel. Some of them have been noticed by the Privy Council in the case of Kumar Krishna Prosad Lal Singha Deo v. Baraboni Coal Concern Ltd. and others AIR 1937 P C 251. The relevant passage dealing with the scope of section 116 of the Evidence Act and exceptions thereto may now be extracted: "The section does not deal or profess to deal with all kinds of estoppel or occasions of estoppel which may arise between landlord and tenant. It deals with one cardinal and simple estoppel and states it first as applicable between landlord and tenant and then as between licensor and licansee, a distinction which corresponds to that between the parties to an action for use and occupation. Whether during the currency of a term the tenant by attornment to A who claims to have the reversion, or the landlord by acceptance of rent from B who claims to be entitled to the terms is estopped from disputing the claim which he has once admitted are important questions, but they are instances of cases which are outside S. 116 altogether; and it may well be that as in English law the estoppel in such cases proceeds upon somewhat different grounds and is not wholly identical in character and in completeness with the case covered by the section. The section postulates that there is a tenancy still continuing, that it had its beginning at a given date from a given landlord. It provides that neither a tenant nor anyone claiming through a tenant shall be heard to deny that particular landlord had at that date a title to the property. In the ordinary case of a lease intended as a present demise---which is the case before the Board on this appeal---the section applies against the lessee, any assignee of the term and any sub-lessee or licensee. What all such persons are precluded from denying is that the lessor had a title at the date of the lease and there is no exception even for the case where the lease itself discloses the defect of title. The principle does not apply to disentitle a tenant to dispute the derivative title of one who claims to have since become entitled to the reversion, though in such cases there may be other grounds of estoppel, e.g., by attornment, acceptance of rent, etc. In this sense it is true enough that the principle only applies to the title of the landlord who "let the tenant in" as distinct from any other person claiming to be reversioner. Nor does the principle apply to prevent a tenant from pleading that the title of the original lessor has since come to an end."
31. ' I may with advantage quote here a passage from Spencer Bower and Turner on the law relating to Estoppel by Representation (3rd Edition 1977). The learned author has observed at page 198 para 196: "The validity of a lease is dependent on the landlord having a title sufficient to justify its grant; and to deny the existence of such a title is to attack the validity of the transaction into which the parties have entered, by removing its foundation. This is the classic basis of estoppels by convention and estoppels by deed; and as against the landlord from whom he has taken possession every tenant is consequently estopped from disputing the subsistence and validity of an estate in him, as at the date of the demise, sufficient to warrant the demise. But this is the limit of his disability: he is not further or otherwise estopped, because it is only a denial so limited which necessarily results in that contradiction or inconsistency between the original and the new position which, as has consistency between the original and the new position which, has as already been explained, is a condition of any valid estoppel by representation. Thus a tenant may dispute any estate, title or interest alleged by the landlord to be vested in him if, in so doing, he does not expressly. or impliedly deny that the landlord had, the date of granting the lease, and estate, title or interest of a kind adequate to justify the grant of that lease."
32. ' I may also with advantage, quote here a passage from Halsbury's Laws of England Volume 16 (4th Ed). The learned author has observed at page 1098 para 1628: "Where the person claiming as landlord is not the person by whom the tenant was let into possession, evidence may be received to show that the relation of landlord and tenant does not in fact exist. Thus although an assignee of the lessor is to all intents and purposes in the same situation as the lessor, and takes the benefit of and is bound by a lease by estoppel, the lessee is not estopped from showing that the lessor had not such title as he could pass to the assignee, or that the person claiming to be the assignee is not in fact the true assignee."
33. ' Thus it is clear from the aforesaid authorities and observations of the learned authors that a tenant may resist eviction sought to be enforced by their landlady in an application filed for the purpose by raising a plea that their landlady's title has come to end or been extinguished subsequent to the commencement of their tenancies notwith standing section 116 of Evidence Act.
34. The extinction of the landlady's title may come about either by voluntary or involuntary transfer or extinguishment.
35. ' In this view of the matter it is unnecessary to consider other contentions which were raised by the learned counsel for the appellant.
36. ' In the result appeals are allowed and the impugned judgment of the learned Additional District Judge is set aside with the result that the applications for eviction are dismissed. In the circumstances of the case the parties will bear their own costs