1994 PLP 2255 (SCMR)

(iii) for his children. In the present case the expression "his own use and occupation" has been pressed in service for seeking ejectment. In the ejectment application the appellant pleaded as follows:‑‑ "Para.

3. That since 1974 the applicant in the partnership of his two other real brothers Ch. Abdul Aziz and Ch. Ali Muhammad sons of Ch. Muhammad Abdullah, is doing his business in the name and under the style of ' Rahat Bakery' shop of the applicant's abovesaid premises as bearing No.544‑C, Block‑2, Central Commercial Area, PECHS, Karachi while the other one shop and its top situated gallery/room is under the tenancy use and occupation of the opponent as stated hereinabove. Para.

5. That the applicant in good faith requires the abovesaid shop and its top situated gallery/room under the tenancy use and occupation of the opponent for his personal use and occupation in order to run his business smoothly and effectually in one business place and in order to save his business from the loss which occurred to it due to having separated in pieces of business spaces and that for this purpose after the refusal of the opponent to vacate his tenement on the applicant's repeated verbal requests the applicant on 18‑4‑1983 through his Advocate sent the opponent a notice by registered A/D to vacate his tenement and to hand over the vacant possession of the same to the applicant within one month after the receipt of the said notice whereby he again explained, all the circumstances under which the applicant requires the opponent's tenement vacated for his personal use and occupation which notice was duly received to the opponent on 24‑4‑1983." The respondent denied the allegations and pleaded that the appellant is not seen at the bakery but admitted that it is a partnership firm and has been running the business in the adjacent shop. From the evidence it is established that the appellant requires the disputed premises for the business of the firm in which he is a partner.

4. Mr. Khalid M. Ishaque, the learned Advocate Supreme Court for the appellant, contended that the expression 'for his own use or occupation' in section 15(2)(vii) should be given liberal interpretation and cannot be restricted only to the exclusive use of the landlord. He further contended that if premises is required for carrying on business of a partnership firm of which the landlord it will be covered by this expression. On the other hand, Mr. A. H. I Advocate Supreme Court for the respondent, contended that word 'own places limitation on 'use' and occupation therefore, 15(2)(vii) can be applied only in cases where the landlord requires the for his own use and occupation and hot for use and occupation of other persons. The learned counsel further contended that by using 'his own', a double emphasis has been placed on the nature and may use or occupy the premises.

5. Sindh Rented Premises Ordinance, 1979, like other similar enactments regulates the relationship between the landlord and tenant and protects their interest in, respect of rented premises. Therefore, it has been enacted for the protection of interest of landlord and tenant both. However, it places certain limitations upon the rights of the landlord to eject the tenant which otherwise under the provisions of the Transfer of Property Act do not exist. Ejectment can be sought only on grounds specified in sections 14 and 15 of the Ordinance. Section 14 is restricted to specified persons mentioned therein and is not relevant for the present controversy. Section 15 enumerates the grounds on which a landlord can seek ejectment of a tenant. One of these grounds is provided in section 15(2)(vii) reproduced above. The expression own use or occupation' has not been defined in the Ordinance and, therefore, one has to look to the ordinary dictionary meaning of these words. It may be mentioned here that expression 'personal use' has been used in section 14 and section 15‑A and this expression has been defined in section 2(g) as follows:‑ "personal use means use of the premises by the owner thereof or his wife (or husband), son or daughter. " According to Mr. Pirzada the requirement mentioned in section 15(2)(vii) is in respect of landlord's own use and occupation and this expression is synonymous to 'personal use' particularly if this provision is read with section 15‑A where for purposes of imposing penalty the term 'personal use' has been used.

6. Mr. Khalid Ishauqe, in support of his contention that expanded and liberal meaning should be given to the term 'his own occupation or use' referred to Matloob v. Mst. Saeeda Khatoon, 1988 SCMR 1575, in which the respondent, a widow, filed an application under section 14 of the Sindh Rented Premises Ordinance which was allowed by the High Court holding that the respondent had proved that she required the premises for her personal use viz. setting up a business which she would run with the help of her son who was aged 18 years and her son‑in‑law. The petition for special leave to appeal was dismissed by this Court. In this case the business was to be owned and run by the landlady and not by her son or son‑in‑law who were to assist her and did not have any interest in the business. This judgment can be of little help to the appellant. The next case cited on behalf of the appellant is Syed Nisar Haider v. Mst. Razia Sultana 1990 SCMR

642. In this case the landlady had sought eviction on account of her bona fide need related to her old age and ill‑health due to which she wanted her married daughter to occupy the premises and be available for service to her in case of need. Ejectment application was allowed and petition for leave to appeal was dismissed. In this case also the need was essentially of the landlady and not of the married daughter. The married daughter was being accommodated only to serve the need of the landlady. Reference was also made to PLD 1971 SC 494 Dr. Miss I. Ali Muhammad v. Muhammad Shafique, which was decided under the West Pakistan Urban Rent Restriction Ordinance, 1959. The appellant was a lady doctor and as owner applied for ejectment of the tenant from the shop on the ground that she required it in good faith for her own use for running a second clinic. Having failed in appeal before the High Court she filed an appeal before the Supreme Court. During the pendency of this appeal she created a trust in respect of her properties including the disputed shop and appointed herself as the trustee. As running of the clinic was not one of the purposes of the trust and the ownership of the building had also changed after the creation of the trust it was held that the shop was not required for the use of the trustee as the landlady and the appeal was dismissed with the following observation:‑‑ "The running of a second clinic in the disputed shop by the appellant in her individual capacity will benefit herself alone and will not ensure to the benefit of the trust. Nor can the running of a clinic in the disputed shop be a purpose of the trust. Far from augmenting the trust to any extent, the use of the disputed shop for the appellant's personal use as a clinic will rather cause harm to the trust in that the trust would be deprived of the monthly rental of Rs.150 payable by the tenant for the shop. It is conceivable that the trustee, as landlord, may require the disputed shop for the use of the trust, say for setting up of an office of the trust itself. In such a case the use of the shop will be the trustee's landlord's own use. Here, however, the appellant, in her individual capacity, requires the disputed shop for her own use as a clinic and that requirement is still the basis for claiming ejectment. The trust is not, in any way, concerned with the running of a clinic by the appellant in her individual capacity." The principle on which this judgment has proceeded is that the term 'for his own use' means the use by the landlord as such. Therefore, the use and occupation should be for the requirement of the landlord/owner entitled to use the premises himself. The learned counsel also referred to Muhammad Ismail v. Muhammad Riaz 1989 CLC 541 and 1989 CLC 989, which favour liberal interpretation.

7. The appellant's counsel has heavily relied upon Clift v. Taylor (1948) 2 AER 113 in which the Court was considering the provisions of Landlord and Tenant Act, 1927, particularly the provisions which related to the extension of the lease which also provided grounds on which extension may be refused. In this case the landlord, a partner in a firm of Estate Agents carried on his business in the premises while the ground floor of the premises was let out to tenant for use as a tea shop. The lease was to expire after 10 years on 25th December, 1947, but on 20th December, 1946 the tenant served a notice requiring a new lease under the Landlord and Tenant Act, 1927, and filed an application before the Tribunal under section 5(2) claiming compensation under section 4 for, the loss of goodwill. The landlord in view of his expanded business was not agreeable to grant new lease on the plea that he required the premises for the occupation of his own firm and the grant of lease would not be consistent with good estate management. Under sections 5(1) and 3(a) of the Act a tenant was entitled to a new lease only if he was entitled to compensation under section

4. Section 5(3) provided that the grant of new lease shall not be deemed to be reasonable if the landlord proves that the premises are required for occupation by himself or that the grant of such lease would be consistent with good estate management. In this case the arrangement with the partners as to the firm's occupation of the building was that the firm as a whole had a tenancy from him as landlord and similar arrangement was to be made in regard to the premises which were let out to the tenant for a tea shop. It was objected by the tenant that a lease to the firm would not constitute occupation by the landlord. It was observed that occupation by the firm of which the landlord was a partner was occupation by the landlord himself. In this case the learned Judges were interpreting the expression 'for occupation by himself' which is different from 'his own occupation or use'. They seem to have been more impressed by the fact that the grant of lease would not be consistent with good estate management. The principles laid down by Cheshire quoted in it can hardly apply to the present case. In this context we may refer to Wethrall & Co. Ltd. v. Stone and others (1950) All ER 1209 where the mother and her two sons aged over 18 years were the landlords. The tenant applied for extension of lease which was opposed by the landlords 'on the plea that in terms of section 5(3)(b)(1) of the Landlord and Tenant Act, 1927 (which provides that if the landlord proves that the premises are required for occupation by himself) they require the premises for occupation by a firm in which the two sons were partners. It was held that the provision would not afford a defence as 'that provision did not apply where premises were required for occupation by only two out' of three landlords.' It is significant to note that construing the same provision of the English Act the possession of the firm of two landlords out of three was not treated covered by the expression 'occupation by himself'. It may be noted that although two out of three landlords were partners of the firm, the occupation by their firm was not treated the occupation of the landlord himself.

8. The learned. Single Judge besides Dr. Miss I. Ali Muhammad's case taken note of Rustam Khudadad v. Arakan Furniture Mart PLD 1962 Kar. 79 and M/s. Fankoon & Co. v. Mian Muhammad Hussain., PLD 1973 Note 141 at p.213. The first case was decided under the Karachi Rent Restriction Act, 1953, in which the term 'for own use' was not extended to cover the orphan nephew of the landlord. In the second case the expression 'for his own use' in section 13(3) (a) (ii) of the West Pakistan Urban Rent Restriction Ordinance, 1959, was held not to cover a case where landlord seeks ejectment of a tenant of shop on the ground that it is required for a company of which he is a shareholder and director.

9. We have also noted that in Abdul Salam Akhtar v. Dr. Najma Pervez, 1976 SCMR 52,. this Court repelled the contention that the term 'own occupation' used in West Pakistan Urban Rent Restriction Ordinance should be interpreted in ' a restricted manner so as to be confined to the personal requirement of the individual landlord' and it was observed: " the personal needs of the landlord would include the need of those dependent upon him." In Wasim Ahmed v. Najat Khanam, 1986 CLC 1556, the requirement of a Muslim landlord who needed the premises for himself and for keeping his dependent parents with him and maintaining them was held to be covered by section 15 (2) (vii) and, thus, the premises was required by the landlord for his own occupation. In Adamali Hasanali v. Rubah Bai, PLD 1965 Karachi 408; while giving a liberal interpretation it was observed:‑‑ "

that the, words 'for his own occupation' should be taken to include all genuine requirements of the landlord and not to be restricted to the requirement of a shelter for his own body and bodies of his children. " While making this observation reliance was placed on two passages from Bombay Rent Act by J.H. Dalal where the words 'occupation for himself' were interpreted as follows:‑‑ "The said words should be given a fair and liberal construction and they must be interpreted to include his family dependants and such persons who may be essential for the purpose of such occupation. The said words mean occupation of himself and all persons who are dependent upon him. It is not the intention of the Rent Restriction Act to disrupt a family and to drive members of the family out because they start earning and are not dependent upon a member in whose name the premises stand. " Further: "In considering a landlord's requirement the Court ought to take into consideration the fact that there are other persons residing with him in his present premises and whom he does not wish to turn into street." , In Muhammad Ismail v. Muhammad Riazul Hasan, 1989 CLC 541, the above judgment has been followed and Dalal's reasoning have been adopted.

10. To support his contention to adopt a restricted meaning, Mr. Pirzada has referred to the meaning of the word own' which according to him qualifies the words use and occupation'. According to Murray's Dictionary: "OWN means 'to emphasize the possessive meaning'. That which is (one's) own property, possessions (one's) own goods." According to Stroud's Judicial Dictionary: "OWN means 'peculiar, private, select, specific'." The dictionary meaning of own conveys a sense of possession excluding others. It means holding and owning specifically, personally or jointly goods or property.

11. Mr. Pirzada has referred to Pocock v. Vickers, 1947 CA

420. In this case a lease for term of 21 years of exclusive right of fishing over part of the river Test and taking away of the fish caught was given but clause 3 provided that the owner shall retain for her own use a rod in the said fishing. The owner died during the tenure of the lease and it was held that the afore-stated clause conferred a contractual right to fish and take fish caught which was personal to herself and ended with her death. The emphasis seems to be that the use of the word 'own' restrict the personal use of the landlord to himself and not beyond him.

12. From an analysis of the afore-stated authorities it seems that in respect of premises used for residential \purposes the consensus is that the term 'own occupation and use' cannot be given a restricted and limited meaning confining it to the landlord personally alone. Significantly in such cases the authorities have leaned to give a wide meaning to the word 'own' and thus expanded the meaning of the term covering such cases which in strict literal sense cannot be brought under it. In most of the judgments referred above the liberal interpretation has been given only where there exists close relationship between the landlord and the person whom he wants to keep with himself and maintain him or in cases where for his personal needs of varied nature the landlord requires the premises. It is true that the expression 'his own occupation or use' cannot be restricted merely to the personality of the landlord exclusively because he cannot use or occupy completely or live in the premises extracted from his relationship and his social, moral and religious obligations. To limit the use and occupation to the landlord personally will be unreasonable as it will isolate, separate and detach him from realities of life and negate human dignity and human rights. However, the meaning of the term 'own occupation or use cannot be extended to cover persons who are outsiders not falling within the description of family members casting no obligation on the landlord to maintain or provide accommodation to them. Such obligation will not include which is purely contractual and makes it obligatory to provide accommodation to a third party independent of relationship mentioned above. For purpose of the term 'his own occupation or use' commercial and business relationship cannot be treated at par with the personal relationship in. respect of which liberal interpretation has been accepted.

13. Liberal interpretation of the expression 'own occupation or use' with preference to the family members will be applicable when the landlord himself personally occupies the premises and lives with such family members. The term 'own use and occupation' is capable of liberal interpretation depending on the facts and circumstances of the case. Such interpretation cannot be applied in cases. It can be applied only where the circumstances permit and that too with objective realization of facts which may differ in each case.

14. The appellant needs the premises for the firm in which he has only 1 /3 share. The partnership firm by itself is not a legal entity. The partners constituting the firm occupy the premises jointly for their joint use which occupation would not amount to exclusive user by landlord or the owner. If the occupation or use of a third party is introduced and the premises are partly being used and occupied by such person as well even joint with the landlord it will not be covered by this term.

15. The principle of interpretation of statute is that the provision should be interpreted in a manner which may effectively carry out the purpose of the statute and also ensure its proper and smooth functioning. In this regard reference can be made to Maxwell's Interpretation of Statute, 12th Edition, ` which succinctly states this principle at page

45. If occupation and use of a partnership firm is treated as occupation and use of the landlord partner alone then it is likely to create difficulties, confusion and give an unlimited power to the landlords who may by becoming even a sleeping partner obtain ejectment on the ground that they want to accommodate their firms. A person having only a fraction in partnership of an insignificant nature would even be entitled to peek ejectment on this ground. A partner is an agent of other partners. The business of the partnership firm is carried out for the benefit of all the partners and not only one partner alone. The possession by a partnership firm amount to possession by all the partners. In such circumstances occupation and use by the firm even in view of the extended and liberal interpretation discussed above cannot be treated as partner landlords own use and occupation. The appeal is dismissed with nr order as to costs. M.B.A./A‑1203/5 Appeal dismiss.