Short point involved in this appeal under section 21 of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as to Ordinance) is whether the appellant/landlady is entitled to seek ejectment of the respondent on the ground of requirement of the premises for use and occupation of her married daughter. .
2. Respondent is the tenant of the appellant in a portion of the house situated on Plot No. 1/7, Commercial Area, Liaquatabad, Karachi on monthly rental of Rs.125 payable on or about 5th of each calendar month while the appellant is residing on the upper storey of the house along with her husband and two married daughters Mst. Farida and Mst. Saeeda.
3. Ejectment of the respondent was sought on the ground that the premises in his occupation in good faith were required for rehabilitating Mst. Hamida Zaheer wife of Iftikhar Hussain and her children as they have been living in a rented house. In the ejectment application it was pleaded that entire structure of the building being very old required to be reconstructed for which appellant had obtained approval of building plan for construction from the relevant authorities of the K.D.A.
However since the respondent and other tenants did not vacate the premises she obtained renewal of the approval from the concerned quarters. It was urged that at the time of letting out the premises on rent respondent had undertaken to vacate the same as and when required by the appellant but in spite of repeated requests he failed to vacate the same
4. Respondent resisted his eviction but admitted the relationship of landlord and tenant as well as rate of rent with the exception that the same was not payable on or before 5th of each calendar month. He denied requirement of the premises for the use and occupation of daughter of the appellant and maintained that after marriage of her daughters they ceased to be her liability and in fact each of her daughters was employed in addition to their husbands. Besides the premises in question were let out to him as a shop; it was never used as residential premises nor can it be required for dwelling purpose. He urged that the premises were acquired on payment of Pugri and the only motive behind seeking his ejectment is to earn Pugri ranging between Rs.500,000 to Rs.600,000. Reconstruction of the building as well as obtaining of approval of a building plan was equally denied and disputed.
5. On the pleadings of the parties learned Controller settled the following issues:---
(1) Whether ejectment application is not maintainable?
(2) Whether applicant requires demised premises for her own use and use of her daughter?
(3) What should the order be?
6. In support of her case appellant examined herself and Ali Akbar while respondent examined himself. Both the, parties were cross-examined at length and learned Controller (Mr. Muhammad Sagheer Rana) by his judgment dated 22-1-1989 dismissed the prayer for ejectment along with two other rent cases brought by the landlady against her other tenants for their eviction from two other shops of the same building.
7. Dismissal order/judgment was challenged in F.R.A. No.279 of 1989 which came up for hearing before Saleem Akhtar, J. (as his Lordship then was) on 25-11-1990 who was pleased to remand the case to the Controller with a direction to record evidence afresh on the issue relating to requirement of the premises for occupation of Mst. Hamida Zaheer.
8. After the remand appellant examined herself, her daughter Hamida Zaheer and her son-in-law Iftikhar Hussain whereas respondent adduced his own evidence.
9. On assessm ent of the evidence on record learned Controller (Mr. Ghulam Hussain Mallah) by his order, dated 1-10-1991 dismissed the eviction application, which has been impugned in this judgment.
10. Learned counsel for the appellant contended with vehemence that the appellant having established requirement of the premises in good faith for use and occupation of her daughter is entitled in law to seek the eiectment of the respondent. In this connection he referred to the evidence of the appellant as well as her daughter and son-in-law to show that Mst. Hamida Zaheer was married about 10 years back and after her Rukhsati she lived for about two years with herself and thereafter she has been residing in a rented house bearing No.3/933 and paying rent of Rs.700 p.m. To the same effect is the evidence of her daughter as well as son-in-law who is serving as Class-I Gazetted Officer in State Bank of Pakistan whereas Mst. Hamida Zaheer working as school teaches
11. On the other hand evidence furnished by the respondent is to the effect that out of four shops he is in occupation of one shop situated on ground floor of the building in which he has been running electronics business under the name and style of Maqbool Electronics. He has further stated that after the marriage Mst. Hamida Zaheer went to live in the house of her husband; that she is not paying monthly rent at Rs.700. According to him neither Mst. Hamida Zaheer nor her husband and children are facing any hardship or financial difficulties as both the spouses are earning members of the family.
12. On scrutiny of evidence on record, it is established that Mst. Hamida Zaheer daughter of the appellant is living in a rented house along with her husband and children. The crucial point for determination is whether the appellant is entitled to seek ejectment of the respondent for the reason that the premises are required for the use and occupation of a married daughter. In this connection reference is made to Mst. Anwar Jahan v. Ismail Khan 1984 CLC 2849 in which Ajmal Mian, J. (as his Lordship then was) took the view that it was incumbent upon the respondent to have brought something on record to explain as to why he had to provide accommodation to his married daughter, her husband and four children. Since no cogent reason had been shown his Lordship expressed the view that in the absence of any plausible reason respondent's personal requirement will not include his married daughter, her husband and four children who admittedly were putting up separately after the marriage.
13. On the other hand, there is plethora of case-law on the subject that the requirement of the children of the landlord would include the requirement of a married daughter. In Abdul Aziz v. Ali Muhammad 1983 CLC 1224 which is a case under the repealed Ordinance, 1959, eviction of the tenant was sought on the ground of personal requirement. Eviction application itself did not disclose that the house was required by landlord for his married daughter. Application itself urged requirement of landlord's family. It was contended before the Lahore High Court that since it was not urged in the eviction application that the house was required for daughter of landlord eviction application merited dismissal. Learned Single Judge seized of the matter repelled the contention and held that order of ejectment on ground of personal need was not assailable.
14. In Muhammad Din v. Nazir Ahmed 1982 CLC 1916 Munawar Ali Khan, J. (as he then was) upheld an eviction order seeking ejectment of the tenant for bona fide requirement of premises to settle his daughter and his son-in-law. Learned Judge even went to the extent of observing that statement of son-in-law having been recorded it was immaterial that the daughter had not been examined to corroborate the plea.
15. In Mst. Faridunnisa v. Abdul Hafeez 1986 M LD 843 dealing with an identical question, Saeeduzzaman Siddiqui, J. (as his Lordship then was) set aside concurrent findings of the Rent Controller as well as appellate authority dismissing eviction application on basis of erroneous view that bona fide requirement of landlady did not include requirement for married daughter of landlady. His Lordship remanded the case to the Controller with a direction to reconsider issue of personal bona fide requirement of landlady by keeping in view that word "children" in section 14(3)
(a)(i) included married daughter.
16. In F.R.A. No.617 of 1987 (S. Nisar Haider v. Mst. Razia Sultana) late Qaisar Ahmed Hamidi, J: observed that having heard the entire evidence minutely dissected by learned counsel on both the sides it is perfectly clear to my mind that the landlady has made out a case for ejectment on ground of personal need for the occupation of her married daughter". This view was upheld by Hon'ble Supreme Court of Pakistan in Civil Petition for Leave to Appeal No.56-K of 1989, decided on 15th February, 1989 in which leave to appeal was refused.
17. In the light of aforesaid precedents and even on a plain reading of the provisions relating to bona fide requirement of the premises for use of the landlord and or any of his children it does not sound logical that after the marriage of daughter, landlord should be disentitled to seek eviction of a tenant for rehabilitating his married daughter who does not become an outcast or alien A to the family of the landlord. In fact under the Muslim Personal Law she is entitled to he share by way of inheritance in the property of her father or mother. In case a landlord desires bona fide to settle and lodge his married daughter along with her husband and children in his property, I see no logical reason to deny this privilege.
18. Lastly argument advanced on behalf of the respondent is that neither the daughter nor the son- in-law of the appellant were in distress as both of them are earning members of the family and since they are not facing any financial difficulty, appellant failed to establish his case and was thus not entitled to seek eviction. I am not at all persuaded by the above submission of the learned counsel and at any event not inclined to agree with the proposition that where a married daughter is financially well-off, putting up with her husband and children in rented premises she would not be entitled to avail of the property of her father.
19. As to the nature of the demised premises it may be clarified one for all that though the respondent in his written statement stated that the tenancy was in respect of one out of four shops on the ground floor of the building. Landlady herself in her eviction application as well as evidence consistently pleaded that respondent is her tenant on the ground floor consisting of three rooms, a kitchen and W.C., etc. The aforesaid version is also supported by appellant's witness Ali Akbar whose evidence was not disputed on this aspect of the case though some questions were suggested to the appellant herself who squarely denied the existence of a shop or godown on the ground floor notwithstanding denial by the respondent, I am convinced that the premises can be justifiably used for residential purpose by the daughter of the appellant.
20. Apprehension of the respondent that after eviction appellant wanted to make money or earn profit by way of letting out the premises for commercial purposes by way of Pugri is repelled by the provisions contained in section 15-A 8 of the Ordinance which provide a remedy to the tenant when the premises got vacated are not used for the purpose for which eviction was sought. In fact section 15-A is an effective deterrent for landlord who after getting the premise vacated for personal use relets same or puts it to use other than that for personal use. Indeed this provision has been enacted solely for the protection of a tenant who having regard to lack of adequate accommodation is left at the mercy of the Landlord. To my mind it provides safeguard to a tenant in case a landlord fails to put the premises in his personal use within one year after obtaining possession on the ground of personal requirement.
21. For the aforesaid facts and reasons, impugned order of dismissal cannot be sustained and must be set aside. Accordingly appeal is allowed and order of the Controller is set aside. However, respondent is allowed to vacate the premises within 90 days subject to deposit of rent as before, failing which a writ possession shall issue without prior notice.