P L D 1957 (W (PLP)

WAHIUUDDIN, J.

The facts out of which this appeal has arisen are that there is a property known as Academy Building situated at Napier Street, Saddar, Karachi. Accord ing to the allegations made in the plaint the respondent works as a carpenter and was occupying the room in dispute on condition that he would switch on and off the electric water pump in the said building, and keep it clean. Accord ing to the respondent the room was occupied in lieu of service and that amounted to a tenancy between the parties. The appellant, however, contended that the respondent was occupying the premises in dispute as a servant ; that his occupancy of the premises was subservient and ancillary to his employment that his presence in the premises in dispute was necessary for carrying out his job. The appellant filed an ejectment suit against the res pondent in the Small Causes Court and an ejectment decree was passed in his favour. Thereupon the respondent filed a suit under section 23 of the Karachi Small Causes Court Act for a declaration that the action of the appellant amounted to trespass and that he was in rightful occupation of the premises in dispute as a tenant. Evidence was led, and the matter came up for decision before our learned brother Muhammad Bakhsh, J., his finding on the question involved is as follows :- " So, it is clear that the plaintiff was doing his duty in accordance with the agreement by which he was allowed to live in his room. The defendant treats the plaintiff as its servant but no register and no other document has been produced to show that the plaintiff was ever appointed in that capacity. Besides, for the mere pittance of Rs. 9 per month, no one would come forward to be a servant. The plaintiff was living on his work and profession as a carpenter, and he was allowed by the defendant to occupy this room in lieu of the service which he had to render. Apparently, therefore, the plaintiff was a tenant of the defendant, and he could not be called a servant. The case would therefore, be covered by section 105 T. P. Act and under the present law, the plaintiff could not be evicted without obtaining the requisite certificate from the Rent Controller ". The learned counsel for the appellant has taken us through the record of the case and has urged that on the evidence on the record it is abundantly clear that the res pondent occupied the premises as a servant and not as a tenant. Respondent's position is that of a licensee and the decision of the learned judge, that there existed a relationship of landlord and tenant between the parties is not correct. No hard and fast rule can be laid down as to the test of finding out whether a particular relationship between landlord and a person occupying 'the premises for rendering services is that of a landlord and tenant or is merely that of a licensee. The law on this point has been correctly stated in Woodfall on " Landlord and Tenant", 1954 Edition, at page 14. "

22. Servant occupying separate house does not become tenant.

A servant who is allowed to occupy premises belonging to his employer for the more convenient performance of his duties, acquires no estate therein, although he be also allowed to use the premises for carrying on therein an independent business of his own (White v. Bayley ((1861) 10 C B (N S) 227)) nor does any tenancy arise in the common case of a servant occupying a cottage rent-free, with less wages on that account (R. v. Stock ((1810) 2 Taunt 339)). Where a servant occupies premises of his master, as part remuneration for his services, the question is whether the occupation is subservient to the service ; if it is, the occupation is that of the master, if it is not, the occupation is that of a tenant (R. v. Spurrel (1865LR1QB72)). It has been said that to justify the inference of a licence and not a tenancy the servant must be required to occupy in performance of his contract of service Huges v. Chatham Overseers (18435 Man .&G 54,78). A surgeon required to occupy a house at the infirmary for the more efficient performance of his duties was held not to occupy as tenant (Dobson v. Jones ((1844) 5 Man. & G 112)) " Required " means, however, that the residence must be ancillary and necessary to the performance of the servant's duties and not merely required as an arbitrary regulation on the part of the master (Smith v. Seghill Overseers (1875 L R 10 Q B 422)). The need for residence in the house must arise out of the nature of the servant's duties (Drover v. Prosser ((1904) 1 K B 84)). Strong considerations of convenience are as effective for this purpose as actual necessity (Ford v. Langford (1949 L J R 586))." The question largely depends on the terms agreed upon and the intention of the parties at the time when the demised premises are allowed to be occupied. If they person concerned occupies the premises in the course of his employment 2nd subservient to and necessary for his service, then it is the enjoyment of property as a servant and his position is that of a licensee. But if he is permitted to occupy the premises by way of remuneration for his services, and he is not required to reside on the premises primarily for the performance of his duties, then the occupa tion is that of a tenant. The learned counsel for the appellant has cited a number of authorities and urged that on the principle laid down there in the position of the respondent is that of the licensee. The cases of White v. Baley ((1861) 142 E R 438) and National Steam Car Company Ltd., v. Barham (122 L T 315) are clearly distinguishable. In the former case the occupant was also paid salary and in the latter case the occupant was residing in the suburbs of London he was required to open and close the garage in time and the master gave the accommodation in dispute for his convenience to the servant. The other cases Smith v. Seghill Overseers ((1875) L R 10 Q B 422), Doed Hughes v. Chatham Overseers ((1840) 9 C & P. 494) and Hughes v. Chatham Overseers ((1843) 5 Man &. G 54) are also not helpful to the appellant. In these cases also the test was whether the occupation was allowed solely as remuneration or was subservient and ancillary to the perform ance of the duties of the servant. In the present case the respondent was examined on oath and he stated :- " The terms were that I was to start and close the motor water-pump in the morning and evening in lieu of the rent of the room and that is all. I have never worked as a Chowkidar. I have never been a servant of the society. I am prepared to pay the rent ". According to him, the room in dispute was given to him nine years back by Shankar Hindu, who was th-e Manager of the appellant Society at that time. The appellants have not examined Shankar, apparently because he is a Hindu and has migrated to India. They have, however, examined their Manager (Exh. 8), and according to him the occupation of the premises in dispute by the respondent is as that of a licensee, and not as a tenant. As rightly pointed out during the course of arguments by my learned brother, Constantine J., his statement amounts to nothing more than a legal opinion in respect of the facts stated by him and that does not show or establish that these were the terms on which the respondent occupied the premises in dispute. This witness was not present at the time when the terms about the occupation of the premises in dispute were settled between the parties. In these circumstances there is no other alternative but to rely on the evidence of the respondent on the question in dispute and from that the intention and terms appear to be that he was occupying the premises as a tenant, and not as a licensee. We are satisfied that the residence of the respondent in the premises in dispute was not ancillary and necessary for the performance of his duties. The res pondent is a carpenter and engaged in an independent profession. There is no proof that he ever acted as a Chowkidar. The rent of the premises is only Rs. 9 and the argument that the respondent was employed for that paltry amount as Chowkidar cannot, be accepted. There are other garages adjoining the garage in dispute and all of them are occupied by Christian tenants. It appears to us that the respondent was selected out of them, to look after the pump and in lieu of these services no rent was charged from him. He was allowed to occupy the premises solely as remunera tion for services. In these circumstances the relationship between the parties is that of landlord and tenant and the respondent cannot be ejected from the garage unless a certificate as required under the Karachi Rent Restriction Act is obtained from the Rent Controller. There is no force in the appeal and it is dismissed with costs. A. H. Appeal dismissed,