1. This is First Rent Appeal against the order of learned XIIth Seniorr Civil Judge and Rent Controller, Karachi, dated 8-2-1983, whereby he dismissed the Rent Application No,6353/1980, filed by the appellant for the eviction of the respondent on the ground, that he had made default in payment of rent and, that he created nuisance and caused the damage to the premises and that the respondents required the premises for use of her son.
2. The learned counsel for the appellant Mr. Diwan Bashir Ahmed Khan, does not press the ground of default in payment of rent but presses this appeal on the other grounds. Admittedly, the only evident in support of the allegations, that the respondent created nuisance and has damaged the shop -premises is that of appellant. In her affidavit, she stated, that opponent (respondent) had created nuisance but has given no instances or details of the alleged nuisance. She has further deposed, that the opponent (respondent) had damaged the shop i.e. Two wooden doors, one under ground gutter racks etc. Again he evidence' lacks details as to the extent and mode of damage. It is not clear, whether the respondent is alleged to have taken away these items or has broken them etc. The demised premises are a shop and the appellant has admitted in her cross- examination, that she visited the shop only once at the time of compromise. The compromise applications have been produced by the respondent as Exh.D-1 and D-2 date 30-3-1985. The damage if any would have been witnessed by the appellant only on that day. If she had visited the shop before' entering into th compromise with respondent, she would not have entered into compromise. If she witnessed the damage immediately after entering into compromise, she would not have waited for seven months to file the rent application for eviction on 28-10-1980. The allegations are denied by the respondent in his affidavit. The burden of proof was upon the appellant, which appellant has failed to discharge.
3. It leaves us with only ground of personal bona fide requirement.The appellant has stated in her rent application as well as in her affidavit in evidence, that she required the shop for her son, Muhammad Hanif, who has discontinued his studies and wants to start business. The shop admittedly is owned by another son of the appellant, namely, Abdul Hamid. The appellant, no doubt, is a landlady as defined in section 2(f) of the Sind Rented Premises Ordinance, 1979, as she has entered into the tenancy agreement with the respondent and has been collecting, rent.
However, clause 'personal use' has been defined in clause (g) of section 2 of the said Ordinance "to mean the use of premises by the owner or his wife (or husband) son or daughter. It will be seen, that the definition of word 'landlord' is vide enough not only to include the owner but also a person, who for the time being is authorised or entitled to recover the rent. Thus, the categories of persons that can be considered as landlord are (i) owner and (ii) the authorised rent collector. But the definition of 'personal use' limits the right only to the owner and his wife,, son or daughter. This right of personal use is not extended in this definition to a landlord, who is not a owner or brother of the owner. If both categories of the persons contained in the definition of landlord viz. Owner and landlord are considered as landlord for the purpose of seeking eviction of the tenant for their personal use, such construction will come in conflict with the definition of words 'personal. Use'. It will also create anamolous situation as owners can conveniently give power of attorney to a prospective tenant authorizing him to collect rent and he would then seek eviction of the tenant on the ground of personal use. Therefore, in my view, the word 'landlord' used in clause (vii) of subsection (2) of section 15 would be limited only to such landlord, who is owner of the premises. In this view, I am supported by view taken in the case 1985 CLC 882. In the reported case my learned brother Mr. Justice Ibadat Yar Khan, J. Has discussed this point at length and has come to the conclusion, "that term landlord used in section 14 and even subsection (2) (vii) of the Ordinance has been used for the owner of the premises".
I am in absolute agreement with my learned brother and held, tha only such landlord can claim eviction of the tenant for his persona bona fide use, who is a owner of the premises and not merely ren collector. As the brother of the owner is not included in the definition of words "personal use" the appeal of the appellant will fail on this ground also, because, it is very clearly stated, that the shop is required for the bona fide use of Muhammad Hanif son of the appellant who is a brother of the owner Abdul Hameed. As such there is no merit in this appeal which was dismissed by a short order dated 15-12-1985. Above are the reasons in support of the said order.