'IFTIKHAR MUHAMMAD CHAUDHRY, J.---This appeal by leave of the Court has been filed against the judgment, dated 2nd September, 1999 passed by High Court of Sindh, Karachi whereby First Rent Appeal No,384 of 1994 filed by the respondent/tenant was allowed as a result whereof ejectment application filed by the appellant has been dismissed.
2. Precisely stating facts of the case are that on 1st January, 1992 appellant filed application under section 17 of the Cantonments Rent Restriction Act, 1963 (hereinafter referred to as "the Act, 1963").
Relevant paras. Therefrom are reproduced hereinbelow:-- "4. That the applicant besides her husband has got 7 sons out of them only one son is aged about 13/14 years while the rest of them are all adults. The husband of the applicant is doing plumbering work in a rented shop under the name and style of 'Nadir Bakhsh Sanitary Works. One of her son is doing General Store under the name and style of 'Mehran General Store' in Shop No,1 of the same building in which shop in dispute is situated. One of her son, namely, Muhammad Zahir is a qualified Physiotherapist and has been working in PNS. Al-Shifa. He intends to start his private clinic for which he does not possess any shop. The applicant's 4 sons are jobless. They also intend to start business but for want of accommodation are unable to do so. The husband of the applicant also intends to shift his business from the rented shop of his own or of his wife.
5. That the applicant requires the Shop No,2 in possession of the opponent for the use and occupation of her husband and sons and as such she asked the opponent to vacate the same disclosing the above facts who kept her on false promises and subsequently refuses to vacate the same.
6. That the shop in dispute is required by the applicant for the use and occupation of her husband and sons in good faith."
3. The tenant/respondent resisted the above eviction application inter alia on merits as well as challenging its maintainability in view of the provisions of section 17(b)(i) of the Act, 1963.
4. Learned Rent Controller framed issues arising out of pleadings of the parties. Relevant issues for disposal of instant appeal i.e, (i) and (ii) are reproduced hereinbelow:-
(i) Whether the applicant's application for personal requirement of the Commercial Tenement premises for her husband and/or for her sons is maintainable under the provisions of Cantonments Act, 1963?
(ii) Whether the applicant, requires the shop in dispute for the bona fide use and occupation of her husband and sons in good faith?
5. Learned Controller after having recorded evidence of both the sides vide order, dated 18th June, 1994 directed ejectment of the respondent. He being aggrieved from the said order filed F.R.A.
No,384 of 1994, -which has been allowed by means of impugned judgment.
6. Leave to appeal was granted to examine inter alia the question 'whether interpretation placed by the learned High Court is consistent with the view expressed earlier by the Sindh High Court, Lahore High Court as well as this Court.
7. Mr. Abdul Rahim Kazi, learned Advocate Supreme Court contended that appellant. Mst. Noor Jehan Bi is a 'Pardanashin' lady, therefore, she wanted to run business in the premises through her husband Nadir Baldish. As such, under section 17 (4)(b)(i) of the Act, 1963, she was not precluded from claiming the ejectment of the respondent to run business in premises in question through her husband. Adds that the impression of 'own use' employed in this provision of law is also referable to the requirement of any other family member particularly husband because a landlady, being a Pardanashin and unskilled, cannot run business independently. To substantiate his view point, he relied upon the judgments reported as Abdul Rashid v. Mst. Adila Musarrat (1982 CLC 149), Messers Bombay Corporation v. Mst. Amna Begum (1986 CLC 1628), Muhammad Zaman v. Hasb-un-Nisa and another (1991 SCM R 1307) and Mst. Firdous Sabir v. Haji Mushtaq Ahmed Pervaiz (1994 SCM R 355).
8. No one has appeared on behalf of respondent despite of notice.
9. It is important to note that under sub-clause (i), clause (b), subsection (4) of section 17 of the Act, 1963 a landlord/landlady competently can apply to the Controller for an order directing the tenant to put him/her in possession of the premises subject-matter of proceedings if he/she requires it in good faith for his/her own use in the case of commercial building. At this very stage, it is important to note that conversely law givers in respect of a residential building under section 17 (4)(a)(i) of the Act, 1963 have used expression that he/she (landlord/landlady) requires it in good faith for his/her own occupation or for the occupation of any member of his/her family, he/she can apply to Controller for the ejectment of tenant. Therefore, visible distinction in both the provisions is that for commercial building landlord or landlady can only ask for the ejectment of tenant from the building if he/she requires it for her/his own use. Whereas in respect of residential building such requirement can also be put forwarded in respect other member of his/her family including the husband and son, etc. In Black's Law Dictionary (7th Edition) at page 1130 the word 'own' has been defined as 'to have or possess as property; to have legal title to'. From the dictionary meaning of the word 'own' no other inference can be drawn except that landlord/landlady can ask for ejectment of the commercial building for his/her own personal use without asking ejectment of the tenant for the use of any other family member in respect of commercial building under section 17(4)(b)(i) of the Act, 1963. Though such strict interpretation of the expression for 'own use' can cause difficulty in some exceptional cases, but Court is bound to interpret the law as it has been legislated and if there is any D omission, that cannot be supplied without any cogent reason.
10. Now turning towards the judgments, which have been relied upon by the learned counsel. First of all it is important to note that in the case of Abdul Rashid v. Mst. Adila Musarrat (1982 CLC 149) a learned Single Bench of Lahore High Court had not interpreted the word 'own use with reference to the provisions of section 17(4)(b)(i) of the Act, 1963 rather such word was interpreted with reference to the provisions of West Pakistan Urban Rent Restriction Ordinance (VI of 1959). It may be noted that prior to 1982 CLC identical interpretation was made in a judgment reported as Abdul Salam Akhtar v. Dr. Najam Parvez (1976 SCM R 52) but as it was with reference to the provisions of section 13 of the West Pakistan Urban Rent Restriction Ordinance (VI of 1959), therefore, this judgment is not applicable in respect of the provisions of section 17(4)(b)(i) of the Cantonments Rent Restriction Act, 1963. However, this judgment was considered in the case of Col. (Retd.) Dr. Wahaj A. Mirza v.
The District Judge, Karachi and 2 others (1983 CLC 1036) and it was heleas follows:-- ' "The second contention of the learned Advocate for petitioner, that under provisions of section 17(4)(b), respondent No,3 could only seek ejectment of the petitioner on ground of his own personal and bona fide need and not on account of the need of his wife, in my opinion has great force. It is clear from the wordings of section 17(4)(b) read with section 17(4)(a)(1) of the said Act; that Legislature deliberately restricted the scope of section 17(4)(b) for purposes of ejectment from commercial premises. In view of this the conclusion of the learned Rent Controller that need of wife, would include respondent's own need, on the basis of case reported in 1976 SCMR 53 is misconceived, as the said case relates to the interpretation of the provisions of West Pakistan .Urban Rent Restriction Ordinance, 1959, which are different from Cantonments Rent Act. However, I find that learned Appellate Court also fail in this error of law. But I find from impugned judgment, that the learned Appellate Court also considered the statement of the respondent No,3 on record and arrived at conclusion of fact, that respondent No,3 required the premises for his own use as well and not for exclusive use of his wife. This is finding of fact and if this finding can be sustained on the basis of the evidence adduced by respondent No,3, then, of course it cannot be assailed, by this petition in my opinion."
11. Learned counsel has also placed reliance on the case of Messrs . Bombay Corporation v. Mst.
Amna Begum (1986 CLC 1628) but the facts and circumstances 'mentioned therein are distinguishable, therefore, this judgment does not render any help to him.
12. It is important to note that appellant's case, as it has transpired from perusal of paras. 4, 5 and 6 of the eviction application, throughout was that the premises in question either is required for the use of her sons who are jobless or for the use of her husband who is running the business of plumbering in a rented shop. Anyway, she never pleaded that business shall be run by her husband on her behalf. Inasmuch as learned Controller framed issue with regard to need of husband for occupying the premises in question. Above all, appellant did not enter into witness- box nor filed her own affidavit to say that she intends to run business through her husband.
13. Next judgment relied upon by the learned counsel is in the case of Muhammad Zaman v. Hasb- un-Nisa and another (1991 SCM R 1307). In this case no law point was pronounced because the petition for leave to appeal was dismissed. As far as the last judgment cited by the learned counsel reported in the case of Mst. Firdous Sabir v. Haji Mushtaq Ahmed Pervaiz (1994 SCM R 355) is concerned it is also distinguishable because in this case the landlady wanted to run business through her husband and nephews whereas in the case in hand appellant has not stated that she intends to run business through her husband as per pleadings and no departure is permissible from the pleadings, else it would cause injustice to other side, who will have no opportunity to rebut the stand taken by the applicant.
' Thus, in view of above discussion, we are of the opinion that as per section 17(4)(b)(i) of the Act, 1963 in respect of commercial building landlord/landlady can apply for ejectment of tenant for his personal use and not for any member of family including husband etc. ' For the above discussion we see no force in instant appeal as such same is dismissed. Parties are left to bear their own costs.