This second appeal under section 15(4) of the Urban Rent Restriction Ordinance, 1959 is directed against the judgment/order dated 13-3-1995 passed by the learned Additional District Judge, Lahore whereby the first appeal of the appellants was dismissed and the order dated 12-7-1994 passed by the learned Rent Controller, Lahore was affirmed, resultantly, the appellants were ordered to be evicted from the premises in dispute.
2. The facts forming background of this appeal are to the effect that the respondent being owner- landlord of property No.S-XXI-25/FCC commonly known as 35 FCC situate Syed Maratib A.I Road, Gulberg, Lahore filed an ejectment application against the appellants on the ground of personal need. It was submitted that the respondent was an employee of the Bank of Credit and Commerce International (B.C.C.I.) and was posted in the Gulf and that the said Bank having been closed the respondent wishes to return to Pakistan so as to live in the demise premises.
3. The ejectment application was resisted by the appellants mainly on the ground that the appellants are occupying the premises in dispute as tenants under one Mst. Ghulam Fatima Chishti and that rent in respect of the said premises had all along been paid through Mst.
Maqsooda Ansari the daughter of said Ghulam Fatima Chishti. It was also urged to the alternative that since no notice under section 13-A of the Ordinance VI of 1959 had been served upon the appellants, therefore, the ejectment application was premature. The written statement filed in the case contained previous history of the tenancy which, according to the appellants, started in the year 1978 by way of lease deed executed between the abovesaid Mst. Ghulam Fatima Chishti and the late husband of the lady through which the appellants were sued by the respondent The alleged plea of personal need was termed to be mala fide and it was maintained that since the respondent was not the landlord of the appellants, therefore, he was not entitled to maintain an ejectment application on the ground of personal need. The abovesaid objections apart, it was also submitted that there being no genuine personal need of the landlord to occupy the premises in dispute the ejectment application could not be maintained.
4. It appears that during the pendency of the abovesaid ejectment application the respondent filed another ejectment application against the appellants on the ground of default thereby claiming that the appellants have defaulted in the payment of the rent on and from 1-6-1993 to 30-1-1994.
The, second ejectment application was also resisted on the similar ground and it was maintained that the total rent had been paid by the appellants to Mst. Maqsooda Ansari, the daughter of Mst.
Ghulam Fatima Chishti who had been receiving the rent on behalf of the said Mst. Ghulam Fatima Chishti. The ejectment application referred to above were consolidated by the learned Rent Controller vide his order dated 24-4-1994 and the proceedings were ordered to be taken in the ejectment application filed earlier in time. In view of the various preliminary objections the learned Rent Controller proceeded to frame preliminary issues in the ejectment application filed on the ground of personal need which were to the following effect.
(1) Whether the relationship of landlord and tenant exists between the parties?
(2) Whether Mst. Ghulam Fatima Chishti is the landlady of the respondent? If so, its effect?
(3) Whether the plaintiff has got no locus standi and cause of action to file this petition?
(4) Relief.
5. In the second ejectmet application, which proceeded on the ground of default, following issues were framed on 5-4-1994:--
(1) Whether the relationship of landlord and tenant exists between the patties? OPA
(2) Whether notice under section 13-A of the Rent Restriction Ordinance was given by the petitioner to the respondent? OPA
(3) Whether the petition is not maintainable in view of the preliminary objection No.4 of the reply?
OPR
(4) Whether the petitioner has no cause of action and locus standi to file this petition?
6. The learned Rent Controller having recorded the evidence on the said issues proceeded to decide the same vide his order dated 16-5-1994 whereby it was held that the relationship of landlord and tenant exists between the parties and that notice under section 13-A of the Urban Rent Restriction Ordinance VI of 1959 was served on the appellants. The other issues being subservient to the main controversy were also determined against the appellants. This having been done, the learned Rent Controller reduced the main controversy between the parties in the following issues:--
(1) Whether the petitioner requires the disputed premises for his personal use in good faith? OPA
(2) Whether the respondent is wilful defaulter in payment of rent? OPA
(3) Relief.
7. The respondent being the petitioner in the ejectment application having already examined Maqsooda Ansari and Irfan Anwar as witnesses in relation to preliminary issues proceeded to examine two witnesses in regard to the merits of the case while he himself appeared as A.W.
1. The appellants, on the other hand, having examined their principal in relation to the preliminary issues, re--examined the said witness as attorney on behalf of the Manager of the appellants and further examined one witness so as to rebut the case of the respondent. The documentary evidence produced by the respondent consisted of A 1 rent note executed by the respondent in favour of his landlord in respect of a rented premises at Sarfraz Rafiqui Road, Lahore Cantt, P.W. 1/1 notice addressed by Dr. Maqsooda Ansari to the appellants, P.W. 2/4 notice addressed by the respondent to the appellant, P.W. 2/2 sale-deed in respect of premises in dispute executed by Mst. Ghulam Fatima Chishti in favour of Maqsooda Ansari, P.W. 2/3 gift deed executed by Maqsooda Ansari in favour of the respondent. The appellants, on the other hand, produced five documents i.e. Receipts in regard to payment of rent which were received in evidence as Exhs. R1 to R5. The only other document produced was the power of attorney executed by Mst. Surraya Begum thereby authorising Ch. Bashir Ahmad to perform various acts on her behalf which also was received in evidence as Exh. R1.
8. In so far as the ejectment application on the ground of personal need was concerned the two Courts below having appraised the evidence on the record as also elaborately discussed the same recorded concurrent findings of fact that the property in dispute was bona fide required by the respondent for his own use and occupation and consequent thereupon the ejectment application was accepted with the result that the appellants were ordered to be evicted from the premises in dispute. In so far as the ejectment application filed on the ground of default was concerned the same was dismissed by the learned Rent Controller and since the respondent did not care to file an appeal against the said order, therefore, the order passed by the learned Rent Controller in the ejectment application filed on the ground of default need not be discussed any further.
9. Learned counsel for the appellants while referring to the statement of respondentrecorded as A.W. 1 argued that no case for personal need was spelt out therefrom. The precise submission was to the effect that the respondent being gainfully employed in a foreign country could not possibly seek eviction of the appellants from the premises in dispute on the ground that he needs the same for his own use and occupation. It was added that in any case the need of the mother of the respondent-landlord was not at all relevant in the concept of personal need as provided under the law and that too in the absence of any averment to that effect in the ejectment application.
Statement of Mr. Irfan Anwar the attorney of the respondent recorded in relation to preliminary issues was specifically referred to maintain that he had not uttered a single word about the alleged personal need of the respondent or that of his mother and as such the ejectment application could not be granted on the alleged ground of personal need of the respondent. It was then urged that the premises in dispute being used for the commercial purposes right from the inception of tenancy, the same could not be got vacated for residential purposes. Learned counsel for the appellants went on to argue that mere statement of the landlord is not enough to determine the bona fide and the Rent Controller is also not absolved of his duty to determine the same independent of the statement of the respondent-landlord by applying his judicious mind to the evidence on the record as according to him this was the minimum requirement as envisaged under the law. In amplification of the argument that a non-residential building was sought to be vacated for residential purposes, it was submitted by the learned counsel for the appellants that the residential building has been defined in the negative words, therefore, the consideration for determining the need for residential and non-residential building must also be different. The abovesaid argument was summed up with the assertion that the two Courts below have failed to give any findings as to whether the non-residential building could be got vacated for residential purposes. It was lastly submitted that an educational institution having been housed in the premises in dispute, the need of the appellants was far greater than that of the respondent and that the said aspect of the case had completely escaped the attention of the two Courts below, therefore, the findings recorded in regard to the personal need are vitiated. The abovesaid argument was further stressed by maintaining that the appellant being a public school the same should not have been treated like an ordinary person as according to the learned counsel for the appellants the interest and the need of an individual could not be deemed better and greater than the institution itself. It was also argued that Hazoor Ahmad the original tenant of the property in dispute having died on 13-6-1987, the ejectment application could not be maintained against the appellants without joining the legal heirs of said late Hazoor Ahmad. At the end the learned counsel raised a poser i.e. Could a shop be got vacated for residential purposes? And proceeded to reply the same in an emphatic ' no' . In order to support the overall arguments referred to above, the learned counsel for the appellants relied on Mst. Ashraf Alia v. Dr. Asif Majeed (1991 CLC 53), Muhammad Siddiq v. Mst. Arsh Bibi (1985 CLC 1701), Ghazi Muhammad Naeem and others -v.
Muhammad Amin (1991 SCMR 1217), Sabir Hasan v. Munir Malik (PLD 1983 Karachi 414) and Suba v.
Siraj Din (PLD 1977 Lahore 1263).
10. The learned counsel for the respondent, on the other hand, maintained that the points now being urged by the learned counsel for the appellants were never grounded in the written statement nor in the memorandum of appeal filed before the learned lower Appellate Court and that most of them had not been urged even in the second appeal filed in this Court. It was submitted that most of the points raised by the learned counsel for the appellants being factual in nature needed evidence and since the same were not raised at the relevant time, therefore, the same cannot be allowed to be raised at the time of hearing of second appeal. As for the plea that no case for personal need was spelt out from the statement of the respondent or that the need of the mother could not be urged as a ground by the landlord son, it was submitted that the respondent being gainfully employed in a foreign country could not negate the assertion of the landlord that he requires the property in dispute for his own occupation and that even the need of the mother could also form basis of eviction of the tenant/--appellants. Reliance was placed on Fazal Azim and another v. Tariq Mahmood and another (PLD 1982 SC 218) and S. Wasim Ahmad v. S. Fateh Hussain (deceased) through LRs. (NLR 1987 Appeal Cases 386). The learned counsel for the respondent did also contest the proposition that the non-residential premises could not be got vacated for the residential purposes by placing reliance on Syed Amjad A.I Shah v. Iqbal Ahmad Farooqi and others (PLD 1985 SC 242) and Farzand A.I v. Aziz Bibi (1993 CLC 1309). It was submitted that the property in dispute being situated in a residential area did all along remain a residential property except that the appellants put it to a different use and this act of the appellants could not stand in the way of the respondent for seeking eviction on the ground that the same is required to be occupied by the landlord for his residential purposes. It was then maintained that even mere statement of landlord has been considered to be enough for the purpose of determining bona fides as also for evicting the tenant and that it is too late in the day to argue otherwise. As for the plea that the ejectment application could not be maintained without the joinder of other legal heirs of late Hazoor Ahmad, the argument, as to this being a factual controversy, was reiterated and thereafter it was submitted that the widow of Hazoor Ahmad having taken over the management and control of the appellants did continue to act and represent herself as tenant under the respondent, therefore, the non joinder of the other heirs was not at all fatal to the ejectment application. In this regard reliance was placed on Allah Din and others v. Jamshed Aderji Dubash (PLD 1961 (W.P.) Karachi 38). The plea that the appellant being an educational institution and a public school its need was greater, better and should have been treated on a higher plane was brushed aside on the ground that the owner-landlord cannot be deprived of the user and occupation of his own property nor the tenant can claim a right to occupy the property in perpetuity.
11. The case of the respondent as laid in para. 2 (i) of the ejectment application was simply to the effect that he was previously employed with the Bank of Credit and Commerce International and was posted in Gulf but since the said bank has been closed, therefore, the respondent intends to come back to Pakistan and settle at Lahore. This plea of the respondent has been substantiated at trial through cogent evidence whereby it was established that the bank where the respondent was employed has already been closed with the result that the respondent has taken up a temporary job in some textile mills in the Gulf. It was of course added that the mother of the appellant having sold her own house is presently living in a rented place and that the said house has also been taken on rent by the respondent which fact is established through lease agreement Exh. A 1 on the record. Tile appellants having failed to establish that tile respondent had any other property in the same urban area suitable for his need, the plea that the respondent being gainfully employed in a foreign country hence could not ask for the vacation of the house in dispute on the ground of personal need cannot be countenanced in view of the law declared by the Supreme Court in case of Fazal Azim and another v. Tariq Mahmood and another (PLD 1982 SC 218). It is now well-settled that the landlord being gainfully employed in some foreign country would not reflect upon his bona fides if he asked for vacation of a house in his own country for the purpose of his own occupation because it is not expected that the landlord must remain idle or should not work for gain till such time that his property is vacated by the tenant. The plea that the need of the mother is not included in the need of the landlord in so far as section 13 (ii) of the Ordinance is concerned and that being so the respondent was not entitled to obtain eviction of the appellants from the premises on the ground that the house in dispute is required for the occupation of his mother is also not based on the correct reading of the evidence. It is in the evidence that the mother of the respondent is an old woman who is living all by herself in a house taken on rent by the respondent and in these circumstances the respondent had supplemented his intention to settle at Pakistan so as to accommodate his own mother alongwith him. As a matter of fact the house is not being got vacated for the need of the mother alone rather her being an old woman is an added reason for the respondent to occupy his own property so that he is able to accommodate his own mother alongwith him. Basically it remains the need of the respondent landlord who has fairly establish that the bank where he was employed having been closed, he has bona fide intention of coming back to his homeland so as to settle at Lahore. Apart from the fact that the respondent-landlord has fairly established on the record that he intends to occupy the premises in dispute for his own residence even the need of the mother of the respondent-landlord could also form basis of ejectment application against the tenant. The argument of the learned counsel for the appellants that the need of parents having not been included in section 13 (ii) of the Ordinance could not be allowed to be raised as a ground in the ejectment application cannot be sustained in view of the Islamic injunctions whereby it has been ordained that the children must maintain their parents and must also treat them with respect, love, care and caution to the extent that they should not raise even mildest cry even against the rough treatment of their parents. Needless to add that the parents have never been excluded from the inheritance of their children and that speaks volume about their status as envisaged by the religion. Now that the principles and injunctions of Islam are being progressively applied to the society and are being incorporated in law, it would be relevant to interpret the words "for' his own occupation" on the touchstone of the said principles, commands and Injunctions of Islam. The abovesaid words fell for interpretation in the case titled S. Wasim Ahmad v. S. Fateh Hussain (deceased) through LRs., (NLR 1987 Appeal Cases 386) and the same were interpreted to mean that the words "for his own occupation" in the context of rent law would mean and include the need of the parents of the landlord as well. The ratio of the judgment may be reproduced as the same is illuminating on the subject:- "The moral, social, religious structure and the society in which a Muslim is born casts a duty upon the son to maintain his old parents. If a son observes these rules or for their fulfilment requires accommodation for keeping his parents with him and maintain them it shall be deemed to be the landlord's own use and personal need. The appellant has fully established that he wants to keep his parents with him, maintain them and thus requires the disputed premises."
12. In view of the facts brought on the record as also the law as interpreted above, the conclusion is irresistible that it was not the mere desire of the respondent to occupy the house in dispute rather it has been established that the intention is bona fide and has been made in good faith, therefore, the judgment in the case of Mst. Ashraf Alia v. Dr Asif Mujeed (1991 CLC 53) as relied by the learned counsel for the appellants would not be applicable in the facts and circumstances of this case. The other judgment in the case of Qazi Muhammad Naeem and others v. Muhammad Amin (1991 SCMR 1217) is also of no help to the appellants, for, the same is distinguishable on its own facts. In the reported case the question for consideration was as to whether the landlord appeared as his own witness or that he was cross-examined in regard to the plea of his being employed and settled in a foreign country or not, while in the instant case the intention of respondent-landlord to come and settle in his own homeland is floating on the record and the same has been found to be bona fide and in good faith. As for the plea that the premises in dispute being used for non-residential purposes right from the inception of tenancy and that the same could not be got vacated for residential purposes, it would be noticed that the house in dispute is situate in a residential area and lease deed executed between the parties having not been produced on the record, it cannot be successfully maintained that the house in dispute was let out for the non-residential purposes.
The tenant having changed the character of a building from residential to non-residential would not affect the right of the landlord to seek eviction of the tenant for the residential purposes and need it be mentioned here that section 11 of the Ordinance VI of 1959 debars any person from converting a residential building into a non--residential building except with the permission in writing of the Controller. No such permission is produced. In any case learned counsel for the respondent has very aptly relied on cases Syed Amjad A.I Shah v. Iqbal Ahmad Farooqi and others (PLD 1985 SC 242) and Farzand A.I v. Aziz Bibi (1993 CLC 1309) to contend that even if a residential building is let out for non-residential purposes the landlord is not debarred from seeking eviction of the tenant on the ground that he intends to occupy the same for residential purposes. In the instant case it has not been established by any documentary or even oral evidence that the premises in dispute were let out for non-residential purposes but this factual aspect apart even if the residential premises had been let out for non-residential purposes the respondent-landlord was entitled to seek eviction of the tenant on the ground that the same is required by him bona fide and in good faith for residential purposes. The abovessaid proposition of law has the support of the judgment of the Supreme Court, therefore, the same need not be dilated any further. The allied question that the residential building and non-residential building have been defined separately, therefore, the consideration for determining the need qua the two properties must also be different pales into insignificance in view of the aforenoted judgment of the Supreme Court. The other argument of the learned counsel for the appellants that the educational institution should have been treated at a higher plane than that of an individual is also not well-founded. While it is true that educational institution caters for the need of the residents of the locality or for the matter the society at large, it is equally true that the owner-landlord of any property cannot be deprived of his right to occupy the same because after all no tenant can claim a right to occupy the property in perpetuity. The relationship between landlord and tenant is regulated by law whereby the rights and liabilities have been created and various modes have been provided for the adjustment and determination of these rights. The policy of law cannot be ignored so as to give an edge to one of the parties in the manner that the rights of the other are lost for ever. It is no doubt correct that there does exist an estate in favour of the tenant in so far as the demise premises are concerned but this estate cap be determined through the process of law. The plea that the attorney of the landlord-respondent in the initial round of litigation pertaining to the preliminary issues did not utter a word about the alleged personal need of the respondent-landlord and that the same should have been read against the respondent is absolutely devoid of any merit. The statement of the said attorney of respondent-landlord was recorded in relation to preliminary issue as to the relationship of landlord and tenant between the parties and that being so he was not required to make any statement in regard to personal need of the respondent. Obviously, the controversy as to personal need was not under consideration at the relevant time. The last argument of the learned counsel for the appellants that Hazoor Ahmad the alleged original tenant having died, the ejectment application could not be maintained without the joinder of the other legal heirs of the said Hazoor Ahmad is not supported by the record inasmuch as it has not been proved that the property was let out to Mr. Hazoor Ahmad in his personal capacity, as such. The lease deed, though stated to be in writing, had not been produced on the record. Even otherwise it is so obvious from the record that Qaumi Foundation i.e. The respondent as arrayed in the original application did not raise any objection to that effect: The documents produced on the record did manifestly establish that the said institution was being managed and controlled by Mrs. Hazoor Ahmad who received various letters in her capacity as such but did not care to object that the Qatirn, Foundation is not the tenant of the property in dispute. In the circumstances it can be safely concluded that the Qaumi Foundation was real tenant of the respondent and it is too late in the day to raise objection that Hazoor Ahmad tenanted the property in his personal capacity or that after his death the legal heirs became the joint tenants under the respondent-landlord. Even if it be a case of Hazoor Ahmad tenanting the property in his personal capacity as such it is established on the record by the conduct of Mrs. Hazoor Ahmad that she took over the tenancy in her capacity of being the Manager of the Foundation and continued to act as such. Even otherwise the inaction on the part of the alleged co-tenants in not opting to file any application for impleadment during the course of ejectment application was enough to show that they were not the tenants of the property in dispute or this conduct on their part at least indicated that the one acting as such is the real tenant of the property in dispute. The rule of law laid down in the case Allah Din and others v.
Jamshed Aderji Dubash (PLD 1961 (W.P.) Karachi 38) though in different context, is relevant in the peculiar facts and circumstances of this case inasmuch as it has been held therein that if a co- tenant by his conduct creates an impression that he had lost interest in the demise premises and had allowed the other tenant to act as if he was no longer a tenant then the non-impleadment of, the said tenant would not be considered to be fatal to the proceedings taken for the eviction of the other tenants. In the instant case it is so obvious on the record that Qaumi Foundation through Mrs. Hazoor Ahmad represented and acted as tenant of the property in dispute and that being so the plea that the ejectment application could not be maintained without the joinder of the heirs of late Hazoor Ahmad is absolutely devoid of any merit.
For the reasons aforenoted this appeal is dismissed with costs. The appellants are however, granted three months' time to vacate the premises in dispute failing which the respondent shall be entitled to execute the ejectment order passed in his favour.