1. This dispute in this case relates to Shop NoA-49, Kashmir Road, Rawalpindi, which was on rent with the respondent and is owned by the appellants who filed an ejectment petition against the respondent on the ground of personal need for doing their own business on 11-6-1984. This application was contested by the respondent and was accepted vide order dated 13-11-1988 passed by the learned Rent Controller whereby an order of ejectment was passed against the respondent. This order was challenged in first appeal before this Court by the respondent. The appeal was dismissed on 23-9-1989. The respondent filed C.P.S.L.A. before the Hon'ble Supreme Court of Pakistan challenging the aforementioned order of ejectment upheld by this Court which was also dismissed on 8-1-1990. In execution proceedings, the appellants succeeded in .obtaining possession of the shop in question in January, 1990 and thereafter occupied the same for doing their own business.
2. The respondent filed an application on 22-6-1990 seeking restoration of the possession of the shop in question on the ground that the appellants have failed to occupy the shop in question, and has not started their business within the period of one month w.e.f. the date of delivery of possession, therefore, as per provisions of section 17(6) of the Cantonment Rent Restriction Act, 1963, they are entitled to the restoration of possession. This application was contested. The appellants pleaded that they have occupied the shop in question and they are doing their business in the said shop and therefore the application is not maintainable and is liable to be dismissed. On the basis of the pleadings of the parties, the learned Rent Controller settled the following issues:--
(1) Whether the applicant is entitled to the restoration of the possession of the disputed shop? OPA.
(2) Relief.
2. In support of their respective contentions, the parties led evidence. Respondent produced Raja Abdul Majid P.W.1 who is a property dealer and who deposed that Marghub Ahmad appellant came to him alongwith his friend Jamal saying that they want to sell the shop in question and further that the shop was visited by him which was vacant and there were only 6 glasses, a jug, a table and a chair lying there, in August 1990. During the course of cross--examination, the witness has admitted that the diary on which the property numbers are written does not contain entries on each page and that after January 1991, he never visited the shop in question. Although he has stated that he is working in the name of "Babar Corporation" as Property Dealer yet he has shown his inability to tell as to whether Babar Corporation is a registered body or not. In the subsequent part of his statement he stated that he is an employee as property agent with the said Corporation and working on commission and does not pay any income tax. Bashir Ahmad Rathor has been produced as P.W.2, who has stated that he is owner of adjacent shop and that Marghub Ahmad appellant has not started any business after taking the possession of the shop in question which remains closed. He stated that as per his knowledge the appellants do not want to start their business therein. The witness when cross-examined firstly denied having appeared as a witness during the course of earlier ejectment proceedings relating to the shop in question but when further pressed stated that he did appear as a witness against the appellants during the course of ejectment proceedings. He admitted that the shop in question is in possession of Marghub Ahmad appellant and that he has seen 2/3 towels, etc. lying in the shop in question about 2/3 days prior to the making of statement. He admitted that he has relations with the respondent since 1975-76.
3. P.W.3 Saeed Khan has also stated that Marghub Ahmad has not started any business in the shop in question. However, since 9-7-1990 there is a Board. at the face of the shop in the name of Ahmad Gift Centre. He stated, that the appellants in fact want to sell the shop in question and they do not want to do 'any business therein. He has further stated that 3/4 days earlier Marghub Ahafad has started business of selling of towels. He has admitted that he has relations with Muhammad Zaman respondent being his neighbourer. Muhammad Azmat P.W.4 who is nephew of the respondent and is his Attorney has stated that the appellants have not started any business after taking possession thereof and that the shop is intended to be either let out on receipt of heavy amount of `Pagri' or to be sold. He has further stated that the previous conduct of the appellants is also quite doubtful and that the respondent is entitled to the restoration of possession as the appellants have not started any business in the shop in question. He has admitted that the shop in question is open since 18-2-1991 and that above the stair-case there are some towels and handkerchiefs but, according to him, the same have been placed just for the purpose of showing that some business is being conducted in the shop. Besides the witnesses referred to above, the respondent has produced in evidence documents ExhsA/4 to A/6 and mark `A to F. Out of the above documents, much reliance has been placed by the respondent on the electricity bills mark `A to F and `G' according to which the premises has been described as "locked". During the course of proceedings, the respondent placed on record copy of deed of general power of attorney executed by Marghub Ahmad appellant in favour of Haji Ainul Haq whereby he has authorized the said attorney to sell the property in question. As against the above evidence, Marghub Ahmad appellant has appeared as R.W.1 and has categorically stated that he is in possession of the shop in question and is doing business therein from the very beginning and that the same has never been rented out to anybody. He stated that there is a Board of "Gift Corner" on the face of the shop.
4. He has categorically denied having ever been contacted Raja Abdul Majid P.W.1, the property dealer, for the purpose of sale of the shop in question. Besides his own statement he has produced in evidence documents Exh.R 1 to 15 in support of his case. After going through the evidence produced by the parties, the learned Rent Controller vide order dated 31-7-1991 accepted the application and held that although the appellants have proved themselves to be in occupation of the shop in question, yet they have failed to prove that they are doing business therein which had to be started within 30 days w.e.f. the date of possession, and, therefore, the possession of the shop is liable to be restored to the respondent as per provisions of subsection (6) of section 17 of the Cantonments Rent Restriction Act, 1963. This order has been challenged in this appeal before this Court by the landlords.
3. Mr. Tanvir Bashir Ansari and Mr. Mansoor Ahmad, Advocates, have appeared on behalf of the appellants whereas Mr. Anwar Baig Mirza assisted by Mr. Mehmoodul Hassan Awan, Advocates have appeared on behalf of the respondent. Learned counsel for the appellants have vehemently argued that the learned Rent Controller after holding that the shop in question is in occupation of the appellants had directed restoration of the possession which is a contradiction itself inasmuch as the requirement of subsection (6) of section 17 is that the occupation of the premises and not the actual 'starting of business within a period of one month. It is contended that if preparations to do business are made, it is a sufficient compliance with the law and therefore the impugned order is illegal. In support of their contentions, learned counsel has placed reliance on case of Agha Muhammad Ilyas v. Masjid Committee, Rahimyar Khaf (PLD 1968 Lahore 863) and Muhammad Rifat Ullah AM v. Imran Ansari (PLD 1990 SC 369) at page 380. .
5. As against the above arguments, learned counsel for the respondent have argued that the word "occupation" as in subsection (6) of section 17 of the Act is not synonymous with the word "possession" and is to be interpreted as starting of ones own business within a period of one month w.e.f. the date of delivery of possession. Learned counsel contends that if this interpretation is not adopted then the words used in section that the premises are to be occupied within one month w.e.f. the date of possession shall become redundant and if the word "possession" would have been synonymous with the word "occupation" then the abovesaid two words should not have been used separately in the section. Placing reliance on Muhammad Afzal Khan v. Haji Abdul Jalil (PLD 1981 Peshawar 157), Noor Ahmed v. Haris Bashir Ahmed (1990 A.O.D. 332), learned counsel have argued that the relevant event is not the possession but the starting of ones own business which constitutes "occupation" and as there is no sufficient proof on record that the appellants started their business within one month from the date of taking over of the possession of the premises, it cannot be said that the premises was occupied by them within one month as envisaged under the provisions of section 17(6) of Cantonments Rent Restriction Act, 1963, as such, the impugned order of restoration of possession is quite lawful and justified. Learned counsel have further contended that the conduct of the appellants is mala fide inasmuch as they entered into certain litigations before the Civil Court which litigations were found to be mala fide. It is contended that as is clear from the deed of general power of attorney dated 3-1-1991 executed by Marghub Ahmad, the intention of the appellant is to sell the property and not to start their business for which purpose they got the premises vacated and as the Rent Restriction Laws are meant for the benefit of tenant they have to be interpreted in his favour, as such, the object for which the premises was got vacated having been found to be not the real one, it is a fit case where the possession should be restored to the tenant, which has been done by the learned Rent Controller. Hence, the impugned order is not liable to be interfered with in this appeal.
4. I have considered the arguments addressed by the learned counsel for the parties and have gone through the record. For the purpose of ready reference, it would be advantageous to reproduce the provisions of section 17(6) of Cantonments Rent Restriction Act, 1963:-- S. 17(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."
6. Plain reading of the aforementioned legal provision shows that the landlord who gets his premises vacated for personal use and occupation for doing of his own business has to occupy the premises for the said purpose within a period of one month w.e.f. the date of possession. In the case in hand, admittedly, the possession was delivered to the appellants in execution proceedings in January 1990. It is nobody's case that the premises did not remain in possession of the appellants thereafter continuously, therefore, one of the elements which is necessary to constitute occupation i.e. "possession", stands established, on record. Second necessary ingredient to constitute "occupation" i.e. preparing the premise for the purpose for which the same were got vacated also stands established on record. The witnesses produced by the respondent say that a Board in the name of "Ahmad Gift Centre" is there on the face of the shop Certain furniture is also lying therein and towels and handkerchiefs are also being sold, although according to the respondent this business has been started in the recent past. It is nobody's case that during the interregnum, the appellants have ever made an effort to rent out the premises in question. The cases cited by the learned counsel for the respondent (supra) are distinguishable on facts and are not at all attracted to the facts of the case in hand. Both the cases relied upon by the learned counsel for the respondent deal with the cases where during the course of ejectment petition on the ground of personal need, it was argued on behalf of the tenant that the premises are required by the landlord in a bona fide manner for doing of his own business but for relet the same to enhance the rent. While discussing the provisions of section 13 and Section 4 of the West Pakistan Urban Rent Restriction Ordinance, which provides a right of restoration to a tenant in case the premises are not occupied by the landlords for the purpose for which they have been got vacated in pursuance of the ejectment proceedings, their Lordships have held that the said provisions grant a sufficient protection to the tenant and is a circumstance to be used for directing ejectment of a tenant on the ground of personal need. In case of "Muhammad Afzal Khan" his Lordship Mr. Justice Usman Ali Shah, J, as his Lordship then was, has held as under:-- "I am of the view that the idea behind this provision of the Ordinance is that if the landlord succeeds in evicting his tenant from the disputed building on the ground of his personal use, he will have to use it for that purpose and if he is found to have not occupied it for his personal use and he has re-let it out at enhanced rent, the original tenant will have the right to claim restoration to possession of the disputed building shop even if it occurs after the expiry of two months".
7. It is quite clear, therefore, that the law laid down by his Lordship in the aforementioned case is just and elaborate enunciation of the statutory provision on the subject. In the case in hand, there is no evidence or allegation to the effect that the landlords are trying to re-let the shop in question; therefore, the law declared in this judgment is not attracted in the case in hand. Similarly, in the case of "Noor Ahmad" (supra), his Lordship Tanzil-ur--Rehman, J, as his Lordship then was, has simply discussed the effect of the protection to the tenant in case the building is vacated for doing of personal business and the business is not started in the disputed premises, the tenant shall be entitled to the protection as provided under section 15-A of the Ordinance. The situation in question in that case was not a matter in issue in the case in hand, and, therefore, the law declared in the said judgment is not helpful to the respondent. Case of Agha Muhammad Ilyas v. Masjid Committee, Rahimyar Khan (PLD 1968 Lahore 863) relied upon by the learned counsel for the appellants is nearer to the situation in question wherein at pages 866 and 867 of the report, their Lordships have held as under:-- "The term 'occupation' is not defined in the Ordinance. Apparently it is used in the Section with its ordinary dictionary meaning. It is not synonymous with the word "residence" as for instance a warehouse in which the goods belonging to a person may be stored will be considered to be in his occupation though he need not necessarily be residing in it. Similarly, the sheds in which the cattle of a farmer are tethered is considered to be in his occupation although he may not be living there.
8. The owner may be residing in the main bungalow and the attached quarters in which his servants are living under him shall be nevertheless deemed to be in his occupation. It appears to me that the term occupation in its present context must be liberally construed. In Queen v. The Justices of the West Riding (1) Patterson, J, observed:-- `Even 'factual occupation' would not necessarily mean residence because a man might dwell in one parish and, rent a house and land in the adjoining one occupying it by his servants'.
9. In the same case Wightmen, J. remarked:-- "but the word 'occupy' is ambiguous. A man may occupy either land or dwelling house without residing.".
10. In Baladin. v. Lakhan Singh (1) in interpreting clause (c) of Section 60 of the Code of Civil Procedures Iqbal Ahmad, J, held that the word 'occupation' in clause (c) does not necessarily mean 'residence' only".
11. Similarly in case of Muhammad Rifat Ullah AM v. Imran Ansari (PLD 1990 SC 369) at page 380, it has been held as under:-- 'The word "occupation" has been defined in the Shorter Oxford English Dictionary, inter alia, to mean actual holding or possession, specially of a place or of land. In the context of subsection (2) of Section 14 of the Ordinance, the word carries the meaning of actual physical possession of a building. This specie of possession is what has been described by Salmond as immediate or direct possession. I am tempted to quote Assessment Committee of St. Paneras (1877) 2 O.B.D. 581), which reads as follows:-- "It is not easy to give an accurate and exhaustive definition of the word 'occupier'. Occupation includes possession as its primary element, but it also includes something more. Legal possession does not of itself constitute an occupation. The owner of a vacant house is in possession, and may maintain trespass against anyone who invades it, but as long as he leaves it vacant he is not rateable for it as an occupier. If, however, he furnishes it, and keeps it ready for habitation whenever he pleased to go to it, he is an occupier, though he may not reside in it one day in a year."
12. In the case in hand, it stands established that the appellants are in occupation of the premises with a view to do their own business even if it is not established that they had started a flourishing business therein, may be it is just a beginning. Merely because, one of the appellants has appointed somebody as his General Attorney, in 1991 authorizing him to sell his share in the property in question, is not a sufficient circumstance which can positively prove that the appellants have not occupied the premises in question within the period fixed under section 17(6) of the Act. It is the prerogative of the landlord that even if the premises are got vacated for the purpose of doing of his own business, he can still sell the property. A tenant is not be supposed to have a right to dictate not to stop the owner to dispose of their property in the manner which they like, may be they may not have succeeded in starting the intended business for which they got the premises vacated due to unavoidable circumstances. Therefore, merely because they have not started their actual business will not make it a case of failure to occupy the premises in question. Adoption of interpretation as put forward by the respondent's learned counsel will amount to reading something in the statute which is not there. Had it been the intention of the legislation that actual business is to be stated, it must have been specifically so provided in the section itself.
13. Resultantly, I hold that the appellants occupied the premises in question within the period, fixed under section 17(6) of the Cantonments Rent Restriction Act, 1963, and, therefore, ,the respondent is not entitled to the restoration of possession. The finding of the learned Rent Controller on issue No.l are, hence, reversed and the issue is decided in favour of the appellants. On the basis of the findings referred to above, the appeal is accepted. The impugned order passed by the learned Rent Controller is set aside and the application filed by the respondent seeking restoration of the possession is dismissed with costs.