Shop No.M/41-E, Bank Road, Rawalpindi Cantt. is owned by Lt.-Col. (Retd.) Muhammad Hassan Safdar appellant, and is on rent with Malik Shabbir Ahmad respondent No.l as a tenant under him.
This shop was taken on rent by the respondent in the year 1974, for the purpose of doing business of sale of cloth but subsequently in the year 1985, without a permission in writing obtained by the appellant it is being used as a restaurant for sale of food fast. After his retirement from the Army Service, the appellant filed an ejectment petition against the respondent on the ground of requirement for his personal use and occupation for doing of his own business. This petition has been contested by respondent No.l on the ground that the appellant does not require the shop in question for personal use in good faith and further that the petition is not maintainable in view of the preliminary objections raised by the respondents in their written statement. The respondent also denied the relationship of landlord and tenant and hence a preliminary objection on the basis of the said objection was framed by the learned Additional Rent Controller on 6-3-1991. On 11-11- 1991, learned counsel for the respondent made a statement to the effect that the relationship of landlord and tenant between the parties is admitted, hence the issue having been conceded following issues were settled on merits:
(1) Whether the disputed property is required by the petitioner for his personal use in good faith?
OPP.
(2) Whether the ejectment petition is not maintainable in view of the preliminary objections raised by the respondent? OPR
(3) Relief.
In support of his case, the appellant himself appeared as P.W.1 before the framing of the issues on merits and after framing of the issues on merits, he again appeared as his own witness and made following statement in his examination-in-Chief: He was cross-examined at length by the learned counsel. During the course of cross-examination, he has throughout clarified that the shop is being got vacated for doing of his personal business of garments and general store and that the same is not being got vacated for the purpose of getting the rent increased. In his statement he has admitted that he has not issued two years prior notice before filing of the ejectment petition. As against the above evidence, respondent himself appeared as R.W.1 and has produced Malik Bashir Ahmad as R.W.2, Nasir Iqbal as R.W.3 and Muhammad Riaz as RNA documents Exh.R.l to Exh.R.5 have also been produced in evidence by the respondent. Learned Additional Rent Controller, Rawalpindi Cantonment vide order dated 16-1-1993 holding that the appellant has failed to prove that he needs the shop in question for doing of his own business; that Jamil Safdar Khan is necessary party in the ejectment proceedings and he has not been impleaded as party to the petition, hence the, petition is not properly constituted, dismissed the same vide order dated 16-1-1993. This order has been challenged in this first appeal.
2. Syed Hamid Ali Bokhari, Advocate, learned counsel for the appellant has argued that the findings recorded by the learned Additional Rent Controller on issues Nos.l and 2 are incorrect and are based upon misreading of evidence and misunderstanding of correct, factual and legal position.
Learned counsel contends that the statement of the appellant recorded on Oath is in consonance with the averments made in the ejectment petition to the effect that the shop in, question is needed by the appellant for doing of his own business. Learned counsel contends that it stands established on record that the appellant is a Retired Army Officer and that one co-sharer is competent to file an ejectment petition without impleading other co-sharer as party to lis. Hence findings rendered by the learned Additional Rent Controller are illegal. Learned counsel contends that the shop in question had been taken on rent by the respondent for doing of business of sale of cloth and conversion of the user of the shop by the respondent against the consent in writing of the appellant will not make the premises as a restaurant and therefore the provisions of section third proviso to Section 17(4) of the. Cantonments Rent Restriction Act, 1963 which requires issuance of two years, prior notice and according to which the restaurant/hotel premises can be got vacated only for doing of the same business as is being done in the premises, are not applicable to the facts and circumstances of this case inasmuch as the nature of the premises is a shop and not a restaurant. It is contended that even if it is assumed that two years prior notice was necessary, filing of the ejectment petition is a sufficient notice and which was filed on 9-9-1990, therefore, at the time when the petition was decided, period of two years having been already elapsed, failure to serve two years prior notice will not be fatal to the case, and therefore, the findings rendered by the learned Rent Controller on issue No.2 are also incorrect. In support of his contentions, learned counsel has placed reliance on cases of Abdullah Bhai and others v. Ahmad Din (PLD 1964 SC 106), Manzoor Ahmad Khan v. Syed Maqsood Ali (PLD 1975 Lah. 1521) and Mst. Amina Begum and others. v. Mehar Ghulam Dastagir (PLD 1978 SC 220).
3. Mr. Tanvir Bashir Ahmad Ansari, Advocate, learned counsel appearing for the respondent has argued that the appellant has made one-line statement in support of his allegations to the effect that he needs the shop in question for his personal use which statement is sketchy and does not specify the nature of the business and source of capital and hence, there is absolutely no evidence on the basis whereof it would be said that the shop in question is needed by the appellant for his personal business. Learned counsel states that although during the course of cross-examination he has disclosed the nature of business as well as the source of income, yet his statement in cross- examination cannot be read as evidence in support of his need for personal use and occupation.
Learned counsel has contended that four witnesses have been produced by the respondent who have categorically stated that the appellant does not require the premises in question for doing of his own similar business but is doing farming in his native village and that he has neither any experience of garments business or a general store nor has any desire to do the said business. He is a greedy and not a needy landlord, hence the learned Rent Controller has rightly held that the personal need of the appellant is not established on record. Learned counsel has further contended that the findings of the learned Rent Controller on the issue of competency of the ejectment petition is also unexceptionable inasmuch the service of two years prior notice keeping in view the business which is being conducted by the respondent in the premises was mandatory before filing of the ejectment petition which admittedly has not been served and therefore, on this short ground above ejectment petition is liable to be dismissed which has rightly been dismissed by the learned lower Appellate Court. Learned counsel further contended that the shop in question is admittedly being used as a restaurant for sale of fast food where as the alleged business which is to be started by the appellant in the premises in question is the business of garments as well as General Store, hence the provisions of section 17(4) which provide for the competency of ejectment petition .on the ground of personal need are not attracted in this case. Hence order of ejectment cannot be passed in favour of the petitioner.
4. Elaborating his arguments learned counsel has taken me through the provisions of section 17(5) which is reproduced as under:--
(1) After the commencement of this Act, no tenant, whether before or after the termination of his tenancy, shall be evicted from the building in his possession in execution of a decree passed after commencement except, in accordance with provisions of this section.
(2) A landlord who seeks to evict his tenant shall apply to the Controller for an order in that behalf and the Controller may, after giving the tenant a reasonable opportunity of showing cause against the application, make an order directing the tenant to put the landlord in possession, if he is satisfied that:-- (i)
(ii)
(iii)
(iv)
(v)
(vi)
(3)
(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 meant area concerned or in any local area in the vicinity thereof; and
(iii) he or the said member has not vacated such building in the said area or vicinity without sufficient cause after the commencement of this Act; and
(b) in the case of a commercial building, if--
(i) he requires it in good faith for his own use; and
(ii) he is not occupying in the Cantonment area concerned or in any local area in the vicinity thereof in which such building is situated for the purposes of his business any other such building suitable for his needs at the time; and
(iii) he has not vacated such building in the said area or vicinity without sufficient cause after the commencement of this Act: Provided that where the tenancy is for a specified period agreed upon between the landlord and the tenant, the landlord shall not be entitled to apply under this subsection before the expiry of such period: Provided further, that when the landlord has obtained possession of a residential or a commercial building under the provision of sub-clause (a) or sub-clause (b) he shall not be entitled to apply again for the possession of any other building under that sub-clause unless the building of which he had previously taken possession has become unsuitable for his needs: Provided also that this subsection shall no apply to Sarais, hotels, dak bungalows, lodging-houses, residential clubs, restaurants, eating houses, cafes, refreshment rooms and places of public recreation or resort or premises dealing in sales or production of materials of books of educational and cultural value except where landlord requires Any urh building to carry on any such business of his own, in which case he may make an application under this subsection after having served two years notice on tenant; but no building which is not, on the commencement of this Act, being used for any of the aforesaid purposes, or has not after such commencement been let out expressly for any such purpose, shall be converted to any such purpose except with the consent in writing of the landlord.
(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.
(6) Where the landlord who has obtained possession of a building in pursuance of an order made under subsection(5), does not himself, or where possession of the building has been obtained for any member of his family, such member does not occupy the building within one month of the date of obtaining its possession the tenant who had been evicted may apply to the Controller for an order directing that the possession of such building be restored to him and the Controller may thereon make an order accordingly. and has vehemently contended that the ejectment petition has rightly been dismissed by the learned Rent Controller, in support of his contention learned counsel has placed reliance on case of Sh. Hafiz Ullah v. Capt. Muhammad Mansib Ali Chabdhry and 2 others (1971 SCMR 132).
5. Regarding argument of the learned counsel for the appellant to the effect that non-service of notice is not fatal due to the fact that the ejectment petition is pending for the last more than 3 years and which itself is notice, learned counsel has contended that it is an established principle of law that an act is to be done as provided and not otherwise.otherwise, the Cantonments Rent Restriction Act, 1963 is a beneficial legislation for the tenant and therefore beneficial and favourable interpretation has to be followed as such the statutory protection of two years notice cannot be even allowed to be waived by the tenant not to speak of failure of the landlord to serve the requisite notice at all. Therefore, according to the learned counsel ejectment petitioner has rightly been dismissed on this score as well. The appeal has no merit and hence is liable to be dismissed.
6. 1 have considered the arguments addressed by the learned counsel for the parties and have also gone through the record. Admittedly, the appellant has retired from Army Service. He made a statement on oath that he requires the shop in question for his personal use. He has given the details of business which he wants to do in the premises in question during the course of cross-- examination. The statement of witness is to be read as whole and hence the statement made during the course of examination-.in-chief cannot be read in segregation to the statement made during the course of cross-examination. If the statement of the appellant is read as a whole it does prove that he intends to do business in the shop which admittedly is owned by him and is on rent with the respondent. There is a protection provided in section 17(5) of Cantonments Rent Restriction Act, 1963 against the mala fide use of right to get the premises vacated on the personal use, inasmuch as in case of failure of the landlord to occupy the premises within a period of one month w.e.f. the date of taking of possession for doing of his business, the tenant can be restored to the possession of the premises. Consequently, the statement made by the appellant on Oath which is quite in consonance with the averments made in the petition accompanied by the protection as given under section 17(5) of the Act' referred to above to establish beyond doubt that the appellant requires the shop in question for his personal use and occupation in order to do his own business.
Merely because the appellant is doing farming is not a relevant factor for coming to the conclusion that the appellant cannot do garment, cannot run or business general store. Admittedly, the appellant has retired as a Senior Army Officer, lived in the city hence, it should not be difficult for him to start the business which he intends to do in the shop in question. At any rate, it is not for the tenant to dictate the landlord to do a particular type of business in his own premises. It is an established proposition of law that it is not at all necessary to get the premises vacated on the ground of personal use and occupation to disclose the nature of business or the source of income.
Oral statement made by a few witnesses from the respondent side, in no manner disproves the fact that the shop in question is needed by the appellant for doing of his own business. Resultantly, the findings of the learned Rent Controller on issue No.l are set aside and are reversed and it is held that the appellant needs the shop in question for doing of his own business in good faith.
7. It is an established legal proposition that even one co-owner can file an ejectment petition and therefore, it cannot be said that the ejectment petition is defective on account of any defect on the power of attorney given to the present appellant.
8. Merely because the premises in question are being used forrunning of a restaurant will not make the nature of the premises as "Restaurant" or a hotel. Therefore, the provisions of third provision of section 17(4) which require service of two years notice or according to which the need of the landlord should coincide with the business which is being already conducted in the premises are not at all attracted to the facts and circumstances of this case. Even if, it is assumed that in case of a tenant who is running a restaurant in the premises which is not a restaurant, a two-year prior notice is necessary, filing of the ejectment petition being sufficient notice and period of two years having already expired it cannot be said that the ejectment petition could have been dismissed on the ground of want of service of notice. Reference in this behalf 1r can be made to thefollowing cases:--
(1) Muhammad Siddique v. Mst Sharifan and others (Law Notes 1969 SC 79).
(2) Syed Azhar Imam Rizvi v. Mst. Salina Khatoon (1985 SCMR 24).
(3) Major (Retd.) Muhammad Yousaf v. Mehraj-ud-Din and others (1986 SCMR 751).
(4) Ejaz Hussain v. Additional District Judge, Rawalpindi (PLD 1991 Lahore 332).
The law declared in case of Muhammad Ilyas Hussain v. Cantonment Board, Rawalpindi (PLD 1976 SC 785) relied upon by the learned counsel for the respondent is not applicable to the facts and circumstances of this case as controversy in the above case relates to issuing of mandatory notice before filing of suit against Cantonment Board.
5. Argument of the learned counsel for the respondent to the effect that the business for which the shop is being got vacated being different than on which is being presently conducted in the premises in question, since the ejectment petition is liable to be dismissed is misconceived and is based upon misreading and misunderstanding of the provisions of section third proviso to 17, relied upon by the learned counsel. The proviso referred to by the yearned counsel applied to those cases where the premises itself are a hotel or a restaurant because the word used is "such building". In the subsequent part the word used is "such business". Had the intention of the legislation been that a premises even if of a different nature cannot be got vacated if it is being put to user as restaurant unless business to be done by the landlord is also running of a restaurant the word used would not have been "such building" but it should have been the "premises" wherein "such business" is being done. If a- tenant uses the premises taken on rent for different purposes for a different use it does not in any way change the nature of the premises in question. The shop in question was taken on rent for sale of clothes, user whereof was converted into restaurant by the tenant subsequently in the year 1985 without there being permission in writing by the landlord, hence it cannot be said that the premises in question is a "restaurant". Consequently, the proviso relied upon by the learned counsel for the respondent is not applicable to the facts and circumstances of the case and as such is not attracted in the case in hand. Case of "Mansib Ali Chaudhry" (supra) relied upon by the learned counsel for the respondent is also distinguishable on facts. As in this case, the dispute is not relatable to a restaurant but is relatable to that portion of the section where the words used are that the premises are being used for doing of business of book selling as is clear from the following portion of the judgment which is reproduced as under:-- The main contention of the petitioner is that as he sells books of educational and cultural values, the respondent is not entitled to evict him from the premises in dispute unless he is given notice of two years under the proviso to section 17 of the Cantonments Rent Restriction Act, 1963. This contention was repelled by the High Court. It came to the conclusion that the petitioner's case does not fall within the ambit of the proviso and therefore, he was not entitled to any statutory notice before his eviction. This order is being challenged in this petition for special leave to appeal.
In support of the petition, Mian Bashir Zafar, learned counsel for the petitioner, has contended that the High Court has erred in thinking that no notice was necessary under clause (b) (iii) of subsection (4) of section 17 of the C4ntonments Rent Restriction Act. He contended that the above provision of law should be read in wider sense and the case of the petitioner falls within the proviso of section 17 of the Cantonments Rent Restriction Act, 1963. In order to appreciate the contention of the learned counsel, the proviso to section 17 is reproduced below:-- "Provided also that this subsection shall not apply to Sarais, hotels, Dak bungalows, lodging- houses, boarding houses, residential clubs, restaurants eating-houses, cafes, refreshment rooms and places of public recreation or resort or premises dealing in sales or production of materials of books of educational and cultural values except where the landlord requires any such building to carry on any such business of his own, in which case he may make an application under this sub-- section after having served two years notice on the tenant; but no building which is not, on the commencement of this Act, being used for any of the aforesaid purposes or has not after such commencement been let out expressly for any such purpose, shall be converted to any such purpose except with the consent in writing of the landlord."
The learned counsel contended that the words in the above proviso "premises dealing in sales or production of materials of books of educational and cultural values" covers the case of the petitioner. It is admitted that the petitioner is selling books of educational and cultural values.
The learned counsel for the petitioner has contended that the words in the above proviso "premises dealing in sales of production of materials of books or educational and cultural values" should not be read in literal sense but should be read in a wider sense as the object of the Legislature in the enactment of the said provision was to afford protection to the pursuit of educational and cultural activities and to save them from sudden disruption in the larger interest of the community. He further contended that in case where literal interpretation is likely to lead to manifest absurdity or to rob the relevant provision of any reasonable meaning, the Courts were competent to ascertain the intention of the Legislature and give full effect to the same. The contention of the learned counsel has received our anxious consideration. Unfortunately, the protection afforded by the proviso applies only to "premises dealing in sales or production of materials of books of educational and cultural values". It does not apply to premises where only books are sold. If the contention of the learned counsel is accepted then in interpreting the relevant provision of law we shall have to delete the word "materials". This in our opinion is not permissible according to the well-known principles of interpretation of statutes. The High Court has rightly observed that the Court cannot go behind the language of the law when there is no ambiguity. The language in the present case in the proviso in question is not ambiguous and, therefore, the principles urged by the learned counsel for the petitioner cannot be applied. We are satisfied that the High Court was right in observing that the protection extends to premises dealing in sales or production of materials of books and not in sales of books as such. We, therefore, find no merit in the petition which is dismissed.
In the case in hand, the facts are distinguishable and it is a shop which is being got vacated by the landlord for doing of his own business which shop was rented out to the tenant for doing of the business of sales of cloth and there is admittedly no permission in writing by the landlord to use the premises in question as restaurant. At any rate, the premises in question admittedly remains to be a shop in spite of its conversion into a restaurant by the tenant, hence the provisions of the proviso relied upon by learned counsel for the respondents are not attracted and as such there is no bar to the landlord to get the premises vacated for doing of business of Garments and General Store for doing whereof he needs the premises in question.
In view of the above findings of the learned Rent Controller on issue No.2 are also set aside and the issue is decided in favour of the landlord and it is held that the ejectment petition is not barred on the basis of the preliminary objections raised by the respondent. In view of my findings on issue Nos.l and 2, I accept this appeal set aside the order passed by the learned Rent Controller dated 16-1-1993, accept the ejectment petition filed by the respondent and pass an order of ejectment against the respondent who shall I vacate the shop within a period of four months w.e.f. today, failing which the appellant shall be entitled to get possession of the premises in question in execution proceedings from a court of competent jurisdiction. It is directed that the tenant shall go on paying the rent regularly to the appellant in terms of the previous arrangement and shall also refrain from causing any damage to the shop in question or handing over the possession thereof to anybody else. The respondent shall also bear the cost of this appeal.