1. This Constitution Petition under Article 199 of the Constitution, Petitions Nos: 1451/1979 and 1452/1979 are all directed against the common order dated 30th July, 1979 passed by Mr. Shall Muhammad R.
2. Akhund, District Judge, Karachi in Rent Appeals Nos. 372/1978, 373/1978 and 1517/78.
3. The facts giving rise to these petitions briefly stated, are as follows :- Respondent No. 1 in all the three petitions is the owner and landlady of a building consisting of three quarters situated on a plot of land bearing G. L. R. S. No. 26/207 (old No. 26/69) measuring 1978 sq.
4. Feet i.e. about 219 sq. Yards situated in Drigh Road Cantonment Bazar. The three petitioners are separately tenants of one quarter each of the said quarters.
5. Respondent No. 1 (hereinafter called the landlady) purchased the said building by a registered sale-deed dated 10th October, 1977, and thereafter, through her Advocate served notices on each of the three petitioners requiring them to pay rent to her and informed each of them that she required the premises for her own use and for the use of her family and required each of them to vacate the premises after one month from the receipt of the notice. On. Failure of the petitioners to vacate the quarters she filed separate applica--tions under section 17(4) of the Cantonment Rent Restriction Act, 1963 (hereinafter called the .Act) against all the three petitioners, being Rent Applications Nos. 3/1978, 12/1978 and 13/1978. In support of her case landlady examined two witnesses besides her father who stated that the petitioner along with her family was residing in his house.
6. The petitioners did not examine any witnesses except themselves.
7. The Controller by a .Well reasoned order dated 11th June, 1978, allowed the applications against the petitioners in Constitution Petitions Nos. 1451/79 and 1452/1979, but by another order dated 18-9- 1978, dismissed the applica--tion against the petitioner in Constitution Petition No. 1450/1979. The only reason given by the Controller in dismissing the application of landlady against the petitioner in Constitution Petition No. 1450/1979 was as follows :- "Now it is clear that the Court has ordered the vacation of one quarter for the accommodation of the landlady and her family. It should be unreasonable to order the vacation of the other quarter. I, therefore, hereby dismiss the present application of the landlady."
8. It may be mentioned that the Controller treated Quarters Nos. 9 and 10 as one premises, but the third quarter a separate premises.
9. Aggrieved by the order dated 1Y-6-1978, .Passed by the Controller, the petitioners in Constitution Petitions Nos. 1451 of 1979 and 1452 of 1979, filed separate appeals, being Rent Appeals Nos. 372 of 1978 and 373 of 1978 before the District Judge, Karachi. The landlady also filed an appeal, being Rent Appeal No. 516/1978 against the order dated 18-9-1978. The appeals of the said two petitioners were dismissed but the appeal of landlady was allowed by a common order. Dated 30-7-1979, now, impugned in these constitution petitions.
10. I have heard Mr. A. I. Chundrigar, learned counsel for the petitioner and Mr. U. Niamat Moulvi learned counsel for the landlady in all the three petitions.
11. Mr. A. I. Chundrigar submitted that the learned District Judge, Karachi in dismissing the appeals of the tenants and allowing the appeal of landlady has taken into consideration the fact that the family of the landlady consisted of only 5 persons, 3 children, husband and the landlady herself.
12. The learned counsel pointed out that it is in evidence that the landlady has also included in her family her sister-in-law, the two children of her sister-in-law and father-in---law have who were residing with her in her father's house, whose need could not .Be taken into consideration and, he, therefore, submitted that the learned District Judge, Karachi, ought not to have allowed the eviction of the same of the petitioner. In this connection the learned counsel relied on the definition of the `Family' given in section 2(c) of the Act, which means and includes a hus--band, wife, children, dependent brothers, unmarried or widowed sisters and a deceased son's widow and children residing with and wholly dependent upon, the landlord. It is correct that the needs of the sister-in- law, her children and the father-in-law could not be taken into consideration in view of the definition of the family given in the Act,. Yet if they are excluded from consideration still the family of landlady consists of 5 persons including herself and as such the need of a family of 5 persons for three rooms does not appear to excessive in any manner. It may be mentioned here that according to evidence on record each quarter consists of only one room of the size of 15' x 15'. Even otherwise if it is assumed that the order is erroneous or such at which the High Court would not have arrived, that would not render the order of the District Judge without jurisdiction for where there e is jurisdiction to decide, then as it has often been said, there is jurisdiction to decide either rightly or wrongly, and merely a wrong decision does not render the decision without jurisdiction.
13. If any authority is needed we may refer to Badrul Haque Khan v. The Election Tribunal; Dacca PLD 1963 SC 704. Raunaq Ali etc. v. Chief Settlement Commissioner and others PLD 1973 SC 236 Rahim Shah v. Chief Election Commissioner PLD 1973 SC 24, Muhammad Hussain Munir v.
14. Sikandar PLD 1974 SC 139, Zulfikar Khan Awan v. Secretary Industries and Mineral Development Government of Punjab, Lahore and 8 others1974 SCMR 530, Begum Wazir Ahmed Industrial Homes v. Niaz Begum PLD 1976 SC 214 and Abdul Rehman Bajwa v. Sultan and 9 others PLD 1981 SC 522.
15. Further the learned District Judge, Karachi, after examining the evidence came to the conclusion that the three quarters constituted one premises. In giving such a finding the learned District Judge, was influenced by the evidence of the witnesses of the landlady who had stated that. .All the three quarters formed one house when it was in occupation of Mst. Abida Begum the previous owner as then it consisted of two rooms and one 'baithak' and that after Mst. Abida Begum had vacated the premises and had gone away to Lahore where she had taken permanent residence, her brother-in-law had divided the house in three quarters in order to earn more rent. Now, cannot be said that on the above evidence the conclusion arrived at by the District Judge that all the three quarters form one house is perverse or arbitrary or not supported by evidence and if all the three quarters are considered to be one house then it makes no difference whether the family of the landlady consisted of five members or eight members. Even otherwise the main question for consideration would be whether the landlady bona required all the three quarters or she along with her family as defined in the Act could reside in one or two quarters. Now, if the quarters are treated as separate and independent premises still it cannot be said that the require--ment of the landlady and her family consisting of husband, and three children for all the three quarters is not bona fide or is in any manner in excess of the requirement of the landlady and in that view of the matter also it cannot be said that the order suffers from any infirmity which could attract the constitutional jurisdiction. It was submitted by Mr. A.
1. Chundrigar that according to the definition of the `building' given in section 2(a) of the Act, a landlord could require one building only and since each quarter was a separate building the landlady could not claim more than one quarter. 1 do not agree. However, in order to appreciate this submission I may here reproduce the definition of the 'building' given in section 2(a) of the Act and the relevant provisions of section 17(4) and (5) of the Act.
16. "2.-(a) "Building" means any building or part of a building, whether residential or not, together with all fittings and fixtures therein, if any, and includes any gardens, grounds, garages and outhouses attached or appurtenant to such budding or part, and vacant land, but does not include any place of religious worship :- 17.-(4) A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession,-
(a) in the case of a residential building, if-
(i) he requires it in good faith for his own occupation or for the occupation of any member of his family ; and
(ii) he or the member of his family, as the case may be, is not occupying any other residential building suitable for his needs at the time, in the Cantonment area concerned or in any local area in the vicinity thereof ; and
(iii) he or the said member has not vacated such a building in the said area or vicinity without sufficient cause after the commencement of this Act ; and
(b) ------------ (i)------------.
17. (ii)------------.
(iii) ---------------
(5) The controller shall, if he is satisfied that the claim of the landlord under subsection (4) is bona fide make an order directing the tenant to put the landlord in possession of the building on such date as may be specified by the Controller and if the Controller is not satisfied he shall make an order rejecting the application Provided that the Controller may give the tenant a reasonable time for putting the landlord in possession of the building and may extend such time so as not to exceed three months in aggregate."
18. It will be seen that according to the definition the entire building) or a part of the building is considered to be a building and under the) provisions of section 17, a landlord may claim the entire building or a portion of the building for his occupation or for the occupation of his family according to the needs, if be otherwise fulfils other conditions. There is no restriction therein that he could claim only a part of the building and not the whole building or not more than one premises. If a landlord needs the whole building what is to be seen is whether she requires the same in goo faith which means that he should show that his requirement of the entire building for his own occupation and/or for occupation of any member of his family is reasonable. Now, if the landlady can show that she or he family or both need the entire building which may consist of several tenements, she is permitted under the law to apply to the Controller for eviction off the tenants therefrom and the Controller, if he is satisfied that the claim of the landlady under subsection (4) is bona fide, he is bound to make an order directing the tenant to put the landlady into possession of the building. In the present case the learned District Judge, Karachi has come to the following conclusion.
19. "Therefore, it is proved that the premises is one unit and not three separate tenements, that Mst.
20. Hajra having no residence. Of her own, requires the entire premises for her own use in view of the large number of the member of her family and that she does not require it for any other purpose except for her bona fide personal use. Thus, all the requirements of section 17(4)(a) of the Cantonment Rent Restriction Act are fulfilled in these cases. Consequently, I find that the impugned orders in Appeals Nos. 372 of 1978 and 373/1978, directing the eviction of the tenants, were rightly passed by the learned Rent Controller. But, his order in Appeal No. 516/1978 dismissing the application of Mst. Hajra, is arbitrary and capricious. It is not based on any evidence and is in conflict with his two other orders, and as such it is set aside.
21. In the result, Appeals Nos. 371/1978 and 373/1978 are dismissed and Appeal No. 516/1978 is allowed.
22. No order is made as to costs. The three tenants to vacate the premises and hand over possession to Mst. Hajra within six weeks from the date of this judgment."
23. I may here also reproduce the preceding paragraph of the judgment on which the learned District Judge, Karachi has based his conclusion which is as follows;-- "It has been next contended by the learned counsel for the tenants that the number of members of Mst. Hajra's family was not such as to require the entire premises for her own use. But, here again, there is no evidence on the part of the tenants in support of this contention. All the three tenants have admitted that they do not know the correct number of the members of Mst. Hajra. Mst. Hajra's witnesses Rehmat Ali and Phalel Khan have both stated that her family consists of eight members, while her witness Manzoor Hussain states that there are 7 or 8 members of family. These witnesses have also stated that Mat. Hajra has no residence of her own and she is staying in her father's house with the members of her family. All the three tenants have admitted that Mst. Hajra had never demanded enhanced rent from them and, in the notices she had issued to them, she had demanded vacant possession only because she required the house for her own use."
24. Mr. A. I. Chundriger however, submitted that in the notices served the landlady had mentioned that she required the premises for her own occupation and for the occupation of her - family, but in one of the applications she had only mentioned her requirement while in the other two applications, she had mentioned the need of her family. On these premises the learned counsel wanted me to conclude that the landlady only needed one quarter for herself and for her family. However, I am of the view, that mere mention in one application that the landlady needed the premises for herself and in the other application that she needed the premises for her family, would not make any difference because the minor children cannot live separately from the parents and if both live together then, the landlady and the children both will need both the premises as the Controller had considered the same as two premises. In any case, if one could come to a different conclusion that would not help the petitioners, for, I am not sitting on appeal against the order of the Controller or further appeal against the order of the District Judge but examining the lawfulness of the order passed b the District Judge on appeals and the finding that the landlady requires the premises for her own occupation and for the occupation of her children, E being the finding of fact, stands concluded by his judgment which is immune from attack in these proceedings in the absence of misreading of evidence o non-consideration of material evidence.
25. Accordingly, I am of the opinion that these petitions have no merits, and therefore, dismiss the same, leaving the parties to bear their own costs.
26. I may however, record that Mr. U. Niamat Moulvi at the bar has stated that respondent No. 1 shall not file any execution application for eviction of the petitioners from the said premises for a period of 4 months. I have no doubt that the statement will be honoured by respondent No. 1.