SHAFIUR RAHMAN, J.--Leave to appeal was granted in two appeals to examine a common question of law arising therein namely, whether the word "children" used in section 13 subsection (3) clause
(a) subsection (i)(a) and in Section 13 subsection (3) clause (a) sub-clause (ii)(a) of the Rent Restriction Ordinance, excludes the 'step-son'.
2. In Civil Appeal No, 37-Q of 1988, Muhammad Usman the husband of Mst. Shamim Akhtar, appellant, was the transferee of evacuee Shop No, 3-1/74 situate on Liaquat Road, Sibi. Muhammad Usman had three wives, one of them being Mst. Shamim Akhtar. Mohammad Zahoor, for whose personal need Mst. Shamim Akhtar sought the eviction of the tenant was a son of Muhammad Usman, but from another wife. In her application she stated the facts as hereunder:-- "...After the death of Mohammad Usma n all his sons were minors and as such the applicant being their natural guardian and to maintain herself and the children gave the shop on rent."
' She stated that Mohammad Zahoor had attained majority and wanted to run his own business in the shop which was required by him. In contesting this application a preliminary objection was taken to the following effect:- "That the person (Zahoor Ahmad) for whom the applicant requires the shop in question is the step- son of the landlord and is not covered in the pedigree of the legal heirs/persons for whom the possession could lawfully be required. As such the application is not maintainable on this point."
3. The following issues were framed by the Rent Controller on the pleadings of the parties:- "(1) Whether the application is not maintainable in view of preliminary objection?
(2) Whether the shop in dispute is required by the applicant/landlady for the personal bona fide use and occupation of her son, Muhammad Zahoor?
(3) Whether the son of the applicant, Muhammad Zahoor is unemployed?
(4) Whether the respondents have failed to pay/tender the rent for the months of September and October, 1986 to the applicant/Landlady?
(5) Whether the applicant/landlady wants to enhance the monthly rent of the shop in dispute?
(6) Whether the applicant is entitled to the relief claimed?"
' The first issue, which is the subject matter of leave to appeal now, was disposed of by the Rent Controller in the following words:- "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' wn body and bodies of his children. In the instant case, the said Zahoor is the step-son of the applicant. He being a member of the family of the applicant is putting up with her and is dependent upon her. Therefore, the applicant may require the premises in dispute for his bona fide use and occupation. The issue, therefore, stands resolved in negative."
' The personal bona fide need of Muhammad Zahoor was held established and the tenant was not found in default. On these findings the Rent Controller on 30th January, 1988 ordered the eviction of the tenant.
4. The High Court reversed the finding of the Rent Controller on the preliminary objection by holding as hereunder and did not thereafter examine the genuineness of the need of such a step-son and allowed the appeal and set aside the ejectment order.
"In the light of above discussion reverting to the provision of law word `his' preceding to 'children' used by legislature is of considerable significance. Thus word 'his' is relatable to 'children' appearing in aforequoted provision of law. Now applying golden rule of plain literal meaning it requires to be examined whether 'step-son' can be deemed to be 'her child', obviously answer would be in negative."
5. In Civil Appeal No,6-Q of 1989, one Haji Khudadad Khan happened to be the owner of the two shops from which eviction of the tenants was sought. He had ten sons. One of his sons namely, Abdul Manan pre-deceased him and his widow married one of the surviving sons. From Abdul Mannan, she gave birth to a son namely, Dr. Anwar Jan. Haji Khudadad died in 1967. In this background of facts the nine brothers moved an application seeking eviction of the tenants from the two shops on the ground inter alia that Dr. Anwar Jan was studying in M.B.B.S., was in the final year and needed the property for starting his clinic and practice therein. This application was contested and the following issues were framed by the Rent Controller:-- "(1) Whether proper description of property in question is not given in eviction application, if so, to what effect?
(2) Whether the applicants in good faith require shop in question for personal bona fide use and occupation of son of applicant No, 8 Anwar Jan?
(3) Relief."
' The Controller held that the eviction application was property drawn up and that the bona fide need of Dr. Anwar Jan was established and ordered the eviction of the tenant. The High Court reversed the judgment by observing as hereunder:-- "It is admitted fact that Anwar Jan is not son of petitioner Abdullah Jan as in his evidence Anwar Jan himself states to be son of one Abdul Manan who was brother of the respondents. Even otherwise it was candidly conceded by the learned counsel for the respondents that as after death of Abdul Manan Abdullah Jan had married with widow of Abdul Manan, hence he treated him as son, therefore in the application he has shown him to be a son. In situation as such manifestly Anwar Jan does not fall within the definition of 'child' hence the authorities relied upon by the counsel for the appellants covered the case. However, it may be further observed that in the authorities relied upon by the learned counsel for the respondents the requirement of landlord was the ground for ejectment of the tenant and the requirement of other relative was also included therein, hence those authorities have no relevancy with the present case at all."
6. On going through the record and after hearing the learned counsel for the parties we find to our surprise that somehow on facts a very incorrect impression has been formed by the learned counsel representing the parties as well by the High Court in determining that the need of the step- sons was involved in these two cases. In fact it was not. On the statement of facts contained in paragraph 1 of the ejectment application filed by Mst. Shamim Akhtar which was admitted by the respondent as correct, the fact which emerged was that Muhammad Zahoor himself was a co- owner and a joint landlord of the premises alongwith Mst. Shamim Akhtar from which eviction of the tenant was sought. It was the need of one of the joint landlord himself which was in issues and not of the step-son of the land owner/landlady.
7. Similarly, in the other appeal, as Haji Khudadad died in the year 1967 and Dr. Anwar Jan was admittedly the son of the pre-deceased son who had died in 1956, under section 4 of the Muslim Family Laws Ordinance, Dr. Anwar Jan had a share in the property and his need was the need of one of the landlords himself and not of the step-son of the landlord.
8. In civil Appeal No, 6-Q of 1989, the respondent/tenant had been agitating even before the Controller by submitting an additional ground that the landlord had other two shops which they got vacated and let out to the tenants. Thereby incurring forfeiture under section 13(3)(a)(ii)(c) he appended various photographs to establish the change of tenancy in the two shops. The Controller rejected this plea by observing as hereunder:- "AW. 1 Aftab Aslam has deposed that Aftab Paint House is still in their occupation as tenants of applicants. He also exhibited uptodate rent receipts as Ex. A/1 to Ex. A/30. He has further deposed that now business of this shop has been given in partnership to one Tahir Khan and an agreement Ex. R/1 was executed between the parties. Further that after the death of his father he alongwith his brothers is tenant in that shop. They had given possession to their brother Gulzar Aslam to deal with business of that shop. Similarly. AW. II Ali Akbar has deposed that Al-Abbas Store is still in his occupation as tenant and he has paid uptodate rent to the applicants vide Ex. A/31 to Ex. A/60. RW Tahir Khan has deposed that he is partner in business of shop Aftab Paint House and in this regard, an agreement Ex. R/1 was executed between him and Gulzar Aslam, brother of Aftab. During cross- examination the witness has deposed that he has no concern with the landlord of shop. The respondent has failed to draw a single word in his favour from these witnesses. I think these three witnesses have removed all the clouds and have rebutted the claim of respondents that occupation of Aftab Paint House and Al-Abbas Store is with the applicants."
9. Before us also the respondent/tenant made an effort to reiterate the same ground that the two other shops had been got vacated and were let out again to different tenants and the landlords had for that reason lost their right of getting these two shops vacated for the occupation and use of Dr. Anwar Jan. He also filed photographs to demonstrate and prove the point. We called for the written comments of the appellants. In respect of one of the shops, the following comments/statement was made:- "That contents of para-2 are admitted to the extent that shop bearing Municipal No, 6-1/3-3 was in possession of one Muhammad Aslam. After his death his son namely Gulzar Aslam was doing said business. But after sometime said Gulzar Aslam (who is also practising as an Advocate) started a new business with Tahir Khan (present occupant). When appellants objected, he produced a partnership deed Ex. R/1 (which is on record and has been produced by said Mr. Tahir Khan in his statement before the trial Court and the same is at page 73 of the Paper Book."
' As regards the two shops, the following further statement was made:- "The appellants have never come intc possession either of the above two shops. Factually speaking the previous tenants after departing from the possession handed over the said shops to the present occupants. The occupants alongwith previous tenants approached the attorney of appellants with a request to accept them as the tenants. As the appellants had already undergone lengthy litigation in respect of disputed premises, which too ended in dismissal of eviction application, therefore, in order to avoid unnecessary expenses and to save time, he accepeted the present occupants as tenants because he was conscious of the fact that he cannot have the possession of said shops except by initiating legal proceedings. An additional reason for accepting the request was that one of the occupants happened to be an advocate and, therefore, the attorney of appellants thought that he might create more difficulties, in case appellants decide to go in court of law."
10. The law [section 13(3)(a)(ii)(c) of the Rent Restriction Ordinance] deprives the landlord of the right of getting the property on the ground of personal need if before the institution of the application or when the Rent Controller is passing order of eviction he has vacated such a building or rented land without sufficient cause after the commencement of the Ordinance in the said urban area. This provision does not get attracted to the case in hand.
11. It has also been urged that Dr. Anwar Jan, for whom the shop is required has taken up appointment in the government service and does not need the shop any longer for establishing a clinic. Such changes, while the matter is pending, are bound to take place when the litigation gets prolonged as it has in this case for over three years. However, if the landlords do not utilize it for the purposes for which they are getting the shops vacated, it will be for the respondents to move the Rent Controller for getting the possession restored and the landlords dealt with in accordance with the law.
12. Both these appeals are therefore, allowed. The ejectment of the tenants is ordered. They are, however, allowed four months' time to vacate the premises.