1. ' The appellants are the landlord/owners of a building known as Zubaida Chambers, situated on Plot No,69-C Block-2, P.E.C.H.S., Karachi and respondent No, 1 their tenant in respect of 2nd floor premises comprising of three rooms, two bed-rooms, one drawing dining, kitchen, two attached bath rooms on rent of Rs,800 per month payable by the first of each month. The building is stated to be a residential-cum-commercial building and was gifted away to the appellants in August, 1988.
2. ' On 25-3-1989, the appellants filed an application under section 15(2) of the Sindh Rented Premises Ordinance, 1979 against respondent No,1 namely Asma Yousuf Saleh Muhammad their tenant and another, namely, Khalid Yousuf her brother. The eviction was sought on three grounds: (1)
3. Infringment of the condition on which the premises was let (conversion of residential premises into commercial premises), (2) personal bona fide requirement and (3) handing over the possession of the premises by respondent No,1 to respondent No,2.
4. ' The respondents denied all the allegations made by the appellants. According to them the disputed premises was let out to respondent No,1 as commercial premises and without any objection the same was being used by her. Personal bona fide requirement of the appellant No,1 was also denied. It was contended that since the premises was commercial, the appellants cannot get it vacated for residential purposes. Respondents have emphatically denied that the respondent No,1 had handed over the possession of the premises to the respondent No,2 or some other person. None of the grounds raised by the appellant found favour with the learned IVth Rent Controller, Karachi who vide his judgment dated 21-2-1991, dismissed the Rent Application under section 15 of Sindh Rented Premises Ordinance , 1979 and hence this appeal.
5. ' The appellants produced appellant No,1 and his landlady, Mumtaz Aftab, whereas respondent No,2 examined himself and produced Mumtaz Ali a shopkeeper and his neighbour.
6. ' The appellants have failed to adduce any satisfactory evidence as to the conversion of premises by respondent No,1 from residential to commercial. Although the approved plan of the building produced by the appellants clearly showed the premises as residential, has gone unchallenged, the appellant No,1 in his cross-examination has admitted that on the date of gift in appellants' favour, the premises was being used by the respondents as commercial premises. Further neither the previous landlord was examined on this question nor there was any explanation for not producing him. This ground must therefore fail.
7. ' As to the personal bona fide requirement of appellants, the testimony of appellant No,1 of his living in a small two-room flat with his wife and two children aged 9 years and 7 years and the hardships and inconveniences being faced by him has remained unrebutted, so also, the deposition of his landlady as to her personal requirement of the flat held by the appellant No,1 has remained unshaken. Here the argument advanced by the learned counsel for the respondent Mr. Mustafa Lakhani is that the demised premises was being used essentially as a commercial premises and cannot be ordered to be vacated so as to be used for residential premises. It was urged that such an attempt by the appellants by itself would establish their mala fides. In support of his contention he placed reliance on Sabir Hassan v. Munir Malik, PLD 1983 Karachi 414 in which a learned Judge of this Court Nasir Aslam Zahid, J. (as he then was) held as follows:-- "In my view, under section 13 of the 1959 Ordinance, a landlord could not maintain an application for ejectment of a tenant from a shop located in a commercial area, which shop was rented out as a shop to the tenant, on the ground that he required the shop for residential purposes. In such cases an application could be maintained only if the landlord required the rented shop for non- residential purposes."
8. ' In reply, the argument advanced by the learned counsel for the appellants was that where a residential premises was being used by a tenant for commercial purposes, it would not change the character of the premises which would remain as residential. In support he placed reliance on Ali Hussain Rizvi v. Muzaffar Jehan PLD 1983 Kar. 410 another decision of the said learned Judge of this Court wherein he had made distinction between two different situations in the following words: "As observed earlier, in my view, the fact of the first floor premises being used for shorthand/typing school did not change the character of the first floor premises into a commercial premises. In the circumstances, the appellant being in occupation of the ground floor premises, which are admittedly residential in character, could not derive benefit of section 14(1) by filing an application for ejectment of the respondent from the first floor of the premises in question, which as observed earlier, has not lost their residential character and would continue to be treated as a residential premises."
9. ' There is preponderance of unrebutted evidence on record that the premises in question was intended to be used as residential premises as reflected by the nature and character of its construction and planning. Such being the case, where a landlord has allowed a tenant to use a residential premises as commercial and vice versa, it does not imply that he has waived his right for personal bona fide requirement for the other. Hence I have no hesitation to hold that the demised premises is available to the 'appellants in good faith for personal requirement of appellant No,1 and the same having being proved, the respondent is liable to be evicted therefrom.
10. ' Now as to the third ground of eviction namely "handing over the possession of the premises" by respondent No,1 to respondent No,2 without the written consent of the appellants, the respondent No,2 has admitted that he is a partner in a firm known as "Baby Care" which carries on business at three shops in the said building. While refuting this ground, he admits to the extent that the bathroom of the demised flat premises is being used by the employees of "Baby Care". His further version in cross-examination is that his sister i,e, respondent No,1 has got married and permanently settled down in India. But respondents' witness and neighbour Mumtaz Ali in unequivocal terms has stated that the respondent No,2 who is a partner in "Baby Care" has been using the flat in question for the purpose of stitching and storing of clothes.
11. ' According to Mr. Mustafa Lakhani learned counsel for the respondents, the expression "handing over the possession of the premises" used in section 15(iii)(a) means and conveys no other concept but of sub-letting of which there is neither any plea nor any evidence. It was vigorously argued that in order to constitute sub-letting there has to be satisfactory evidence as to receipt of rent by a tenant from sub-tenant otherwise this ground would fail. In support he placed reliance on 1982 CLC 1249 at page 1252, 1983 CLC 2872, 1986 CLC 1485.
12. ' The implications and genesis of the legal proposition advanced by the learned counsel for the respondents are not difficult to comprehend as the ground of ejectment available to a landlord against his tenant under section 15(iii)(a) of the Sindh Rented Premises Ordinance, 1979 i,e, "handing over the possession of the premises" by the tenant without the written consent of the landlord, is conceptually distinguishable from the ground of "sub-letting" found in repealed rent laws and it will be a fallacy to attribute all the incidents of subletting to the former. Had this being so, there was no necessity for legislature to introduce new expression to convey the old meaning.
13. Secondly and more importantly, the expression "handing over the possession of the premises" is free from any ambiguity and should be read and understood in its simple and ordinary meaning and to stretch it further so as to import other meanings or concepts would be violative of legislative intent and purpose. In Ballintine's Law Dictionary, third Edition at page 964," possession is defined as occupancy and exercise of domain over property". Now a situation where a tenant completely divests himself of the physical possession of the premises in favour of another cannot be ruled out.
14. ' In Jowitt's Dictionary of English Law, Second Edition, Volume 2 at page 1387 possession is described as follows:-- "Possession: The visible possibility of exercising physical control over a thing, coupled with the intention of doing so, either against all the world or against all the world except certain persons.There are, therefore, three requisites of possession. First there must be actual or potential physical control. Secondly, physical control is not possession, unless accompanied by intention; hence, if a thing is put into the hand of sleeping person, he has not possession of it. Thirdly the possibility and intention must be visible or evidenced by external signs, for if the thing shows no signs of being under the control of anyone, it is not possessed."
15. ' According to the Concise Law Dictionary by P.G. Osborn (Fifth Edition) 1964 at page 245 possession means: "Possession: Physical detention coupled with the intention to hold the thing detained as one's own (Maine). The continuing exercise of a claim to the exclusive use of a material object (Salmond).
16. Possession has two elements (1) the corpus, or the thing possessed; (2) the animus possidendi, the intention to appropriate to oneself the exclusive use of the thing possessed."
17. ' In Webster's Third New International Dictionary possession is defined in its primary meaning as 'the act or condition of having in or taking into one's control or holding at one's disposal'.
18. ' In Bouvier's Law Dictionary, a Concise Encyclopaedia of the Law P.2635, Vo1.3, Third Edition, inter alia, it is stated: "By the possession of a thing we always conceive the condition in which not only one's own dealing with the thing is physically possible, but every other person's dealing with it is capable of being excluded."
19. "There is no word more ambiguous in its meaning than possession. It is invariably used to describe actual possession and constructive possession, which are often so shaded into one another that it is difficult to see where one ends and the other begins; National Safe Deposit Co. v. Stead 232 U.S. 58, 34 Sup. Ct. 209, 58 L.Ed."
20. ' In Ocean Accident etc. Corporate v. Ilford Gas Co. (1905) 2 K.B. It was held: "The primary meaning is physical control. A secondary meaning is physical control by an agent or servent or by relation back e.g. By the owner without remaining in physical possession."
21. ' What transpires from the above discussion is that the ground of eviction available to a landlord under section 15(iii)(a) of the Sindh Rented Premises Ordinance, 1979, namely, "handing over the possession of the premises" by the tenant to some other person without his consent, would be available to him only when the tenant consciously and purposely puts another person into possession of the premises or allows him to retain possession thereof with the intention to divest himself of the control thereof. The facts of the case entirely correspond to this legal position.
22. Admittedly the respondent No,1 has got married and permanently settled down in India. The deposition of the respondents' own witness supports the case of the appellant as he has categorically stated that the demised premises is now being used by `M/s. Baby Care' for stitching and storing clothes.
23. ' In the result the appeal is accepted but with no order as to costs. The above are the reasons for acceptance of the appeal vide my short order dated 9-9-1992.