1994CLC286 (PLP)

(v) ................. . (vi) .. (3) ........................... (4) A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession:‑‑ (a) In the case of a residential building, if‑‑ (i) he requires it in good faith for his own occupation or for the occupation of any member of his family; and (ii) he or the member of his family, as the case may be, is not occupying any other residential building meant area concerned or in any local area in the vicinity thereof; and (iii) he or the said member has not vacated such building in the said area or vicinity without sufficient cause after the commencement of this Act; and (b) in the case of a commercial building, if‑‑ (i) he requires it in good faith for his own use; and (ii) he is not occupying in the Cantonment area concerned or in any local area in the vicinity thereof in which such building is situated for the purposes of his business any other such building suitable for his needs at the time; and (iii) he has not vacated such building in the said area or vicinity without sufficient cause after the commencement of this Act: Provided that where the tenancy is for a specified period agreed upon between the landlord and the tenant, the landlord shall not be entitled to apply under this subsection before the expiry of such period: Provided further, that when the landlord has obtained possession of a residential or a commercial building under the provision of sub‑clause (a) or sub‑clause (b) he shall not be entitled to apply again for the possession of any other building under that sub‑clause unless the building of which he had previously taken possession has become unsuitable for his needs: Provided also that this subsection shall no apply to Sarais, hotels, dak bungalows, lodging‑houses, residential clubs, restaurants, eating houses, cafes, refreshment rooms and places of public recreation or resort or premises dealing in sales or production of materials of books of educational and cultural value except where landlord requires Any urh building to carry on any such business of his own, in which case he may make an application under this subsection after having served two years notice on tenant; but no building which is not, on the commencement of this Act, being used for any of the aforesaid purposes, or has not after such commencement been let out expressly for any such purpose, shall be converted to any such purpose except with the consent in writing of the landlord. (5) The Controller shall, if he is satisfied that the claim of the landlord under subsection (4) is bona fide, make an order directing the tenant to put the landlord in possession of the building on such date as may be specified by the Controller and if the Controller is not satisfied he shall make an order rejecting the application: Provided that the Controller may give the tenant a reasonable time for putting the landlord in possession of the building and may extend such time so as not to exceed three months in aggregate. (6) Where the landlord who has obtained possession of a building in pursuance of an order made under subsection(5), does not himself, or where possession of the building has been obtained for any member of his family, such member does not occupy the building within one month of the date of obtaining its possession the tenant who had been evicted may apply to the Controller for an order directing that the possession of such building be restored to him and the Controller may thereon make an order accordingly. and has vehemently contended that the ejectment petition has rightly been dismissed by the learned Rent Controller, in support of his contention learned counsel has placed reliance on case of Sh. Hafiz Ullah v. Capt. Muhammad Mansib Ali Chabdhry and 2 others (1971 SCMR 132).

5. Regarding argument of the learned counsel for the appellant to the effect that non‑service of notice is not fatal due to the fact that the ejectment petition is pending for the last more than 3 years and which itself is notice, learned counsel has contended that it is an established principle of law that an act is to be done as provided and not otherwise. otherwise, the Cantonments Rent Restriction Act, 1963 is a beneficial legislation for the tenant and therefore beneficial and favourable interpretation has to be followed as such the statutory protection of two years notice cannot be even allowed to be waived by the tenant not to speak of failure of the landlord to serve the requisite notice at all. Therefore, according to the learned counsel ejectment petitioner has rightly been dismissed on this score as well. The appeal has no merit and hence is liable to be dismissed. 6. 1 have considered the arguments addressed by the learned counsel for the parties and have also gone through the record. Admittedly, the appellant has retired from Army Service. He made a statement on oath that he requires the shop in question for his personal use. He has given the details of business which he wants to do in the premises in question during the course of cross examination. The statement of witness is to be read as whole and hence the statement made during the course of examination‑.in‑chief cannot be read in segregation to the statement made during the course of cross‑examination. If the statement of the appellant is read as a whole it does prove that he intends to do business in the shop which admittedly is owned by him and is on rent with the respondent. There is a protection provided in section 17(5) of Cantonments Rent Restriction Act, 1963 against the mala fide use of right to get the premises vacated on the personal use, inasmuch as in case of failure of the landlord to occupy the premises within a period of one month w.e.f. the date of taking of possession for doing of his business, the tenant can be restored to the possession of the premises. Consequently, the statement made by the appellant on Oath which is quite in consonance with the averments made in the petition accompanied by the protection as given under section 17(5) of the Act' referred to above to establish beyond doubt that the appellant requires the shop in question for his personal use and occupation in order to do his own business. Merely because the appellant is doing farming is not a relevant factor for coming to the conclusion that the appellant cannot do garment, cannot run or business general store. Admittedly, the appellant has retired as a Senior Army Officer, lived in the city hence, it should not be difficult for him to start the business which he intends to do in the shop in question. At any rate, it is not for the tenant to dictate the landlord to do a particular type of business in his own premises. It is an established proposition of law that it is not at all necessary to get the premises vacated on the ground of personal use and occupation to disclose the nature of business or the source of income. Oral statement made by a few witnesses from the respondent side, in no manner disproves the fact that the shop in question is needed by the appellant for doing of his own business. Resultantly, the findings of the learned Rent Controller on issue No.l are set aside and are reversed and it is held that the appellant needs the shop in question for doing of his own business in good faith.

7. It is an established legal proposition that even one co‑owner can file an ejectment petition and therefore, it cannot be said that the ejectment petition is defective on account of any defect on the power of attorney given to the present appellant.

8. Merely because the premises in question are being used for running of a restaurant will not make the nature of the premises as "Restaurant" or a hotel. Therefore, the provisions of third provision of section 17(4) which require service of two years notice or according to which the need of the landlord should coincide with the business which is being already conducted in the premises are not at all attracted to the facts and circumstances of this case. Even if, it is assumed that in case of a tenant who is running a restaurant in the premises which is not a restaurant, a two‑year prior notice is necessary, filing of the ejectment petition being sufficient notice and period of two years having already expired it cannot be said that the ejectment petition could have been dismissed on the ground of want of service of notice. Reference in this behalf 1r can be made to the following cases:‑‑ (1) Muhammad Siddique v. Mst Sharifan and others (Law Notes 1969 S C 79). (2) Syed Azhar Imam Rizvi v. Mst. Salina Khatoon (1985 SCMR 24). (3) Major (Retd.) Muhammad Yousaf v. Mehraj‑ud‑Din and others (1986 SCMR 751). (4) Ejaz Hussain v. Additional District Judge, Rawalpindi (PLD 1991 Lahore 332). The law declared in case of Muhammad Ilyas Hussain v. Cantonment Board, Rawalpindi (PLD 1976 SC 785) relied upon by the learned counsel for the respondent is not applicable to the facts and circumstances of this case as controversy in the above case relates to issuing of mandatory notice before filing of suit against Cantonment Board.

5. Argument of the learned counsel for the respondent to the effect that the business for which the shop is being got vacated being different than on which is being presently conducted in the premises in question, since the ejectment petition is liable to be dismissed is misconceived and is based upon misreading and misunderstanding of the provisions of section third proviso to 17, relied upon by the learned counsel. The proviso referred to by the yearned counsel applied to those cases where the premises itself are a hotel or a restaurant because the word used is "such building". In the subsequent part the word used is "such business". Had the intention of the legislation been that a premises even if of a different nature cannot be got vacated if it is being put to user as restaurant unless business to be done by the landlord is also running of a restaurant the word used would not have been "such building" but it should have been the "premises" wherein "such business" is being done. If a‑ tenant uses the premises taken on rent for different purposes for a different use it does not in any way change the nature of the premises in question. The shop in question was taken on rent for sale of clothes, user whereof was converted into restaurant by the tenant subsequently in the year 1985 without there being permission in writing by the landlord, hence it cannot be said that the premises in question is a "restaurant". Consequently, the proviso relied upon by the learned counsel for the respondent is not applicable to the facts and circumstances of the case and as such is not attracted in the case in hand. Case of "Mansib Ali Chaudhry" (supra) relied upon by the learned counsel for the respondent is also distinguishable on facts. As in this case, the dispute is not relatable to a restaurant but is relatable to that portion of the section where the words used are that the premises are being used for doing of business of book selling as is clear from the following portion of the judgment which is reproduced as under:‑‑ The main contention of the petitioner is that as he sells books of educational and cultural values, the respondent is not entitled to evict him from the premises in dispute unless he is given notice of two years under the proviso to section 17 of the Cantonments Rent Restriction Act, 1963. This contention was repelled by the High Court. It came to the conclusion that the petitioner's case does not fall within the ambit of the proviso and therefore, he was not entitled to any statutory notice before his eviction. This order is being challenged in this petition for special leave to appeal. In support of the petition, Mian Bashir Zafar, learned counsel for the petitioner, has contended that the High Court has erred in thinking that no notice was necessary under clause (b) (iii) of subsection (4) of section 17 of the C4ntonments Rent Restriction Act. He contended that the above provision of law should be read in wider sense and the case of the petitioner falls within the proviso of section 17 of the Cantonments Rent Restriction Act, 1963. In order to appreciate the contention of the learned counsel, the proviso to section 17 is reproduced below:‑‑ "Provided also that this subsection shall not apply to Sarais, hotels, Dak bungalows, lodging‑houses, boarding houses, residential clubs, restaurants eating‑houses, cafes, refreshment rooms and places of public recreation or resort or premises dealing in sales or production of materials of books of educational and cultural values except where the landlord requires any such building to carry on any such business of his own, in which case he may make an application under this sub section after having served two years notice on the tenant; but no building which is not, on the commencement of this Act, being used for any of the aforesaid purposes or has not after such commencement been let out expressly for any such purpose, shall be converted to any such purpose except with the consent in writing of the landlord." The learned counsel contended that the words in the above proviso "premises dealing in sales or production of materials of books of educational and cultural values" covers the case of the petitioner. It is admitted that the petitioner is selling books of educational and cultural values. The learned counsel for the petitioner has contended that the words in the above proviso "premises dealing in sales of production of materials of books or educational and cultural values" should not be read in literal sense but should be read in a wider sense as the object of the Legislature in the enactment of the said provision was to afford protection to the pursuit of educational and cultural activities and to save them from sudden disruption in the larger interest of the community. He further contended that in case where literal interpretation is likely to lead to manifest absurdity or to rob the relevant provision of any reasonable meaning, the Courts were competent to ascertain the intention of the Legislature and give full effect to the same. The contention of the learned counsel has received our anxious consideration. Unfortunately, the protection afforded by the proviso applies only to "premises dealing in sales or production of materials of books of educational and cultural values". It does not apply to premises where only books are sold. If the contention of the learned counsel is accepted then in interpreting the relevant provision of law we shall have to delete the word "materials". This in our opinion is not permissible according to the well‑known principles of interpretation of statutes. The High Court has rightly observed that the Court cannot go behind the language of the law when there is no ambiguity. The language in the present case in the proviso in question is not ambiguous and, therefore, the principles urged by the learned counsel for the petitioner cannot be applied. We are satisfied that the High Court was right in observing that the protection extends to premises dealing in sales or production of materials of books and not in sales of books as such. We, therefore, find no merit in the petition which is dismissed. In the case in hand, the facts are distinguishable and it is a shop which is being got vacated by the landlord for doing of his own business which shop was rented out to the tenant for doing of the business of sales of cloth and there is admittedly no permission in writing by the landlord to use the premises in question as restaurant. At any rate, the premises in question admittedly remains to be a shop in spite of its conversion into a restaurant by the tenant, hence the provisions of the proviso relied upon by learned counsel for the respondents are not attracted and as such there is no bar to the landlord to get the premises vacated for doing of business of Garments and General Store for doing whereof he needs the premises in question. In view of the above findings of the learned Rent Controller on issue No.2 are also set aside and the issue is decided in favour of the landlord and it is held that the ejectment petition is not barred on the basis of the preliminary objections raised by the respondent. In view of my findings on issue Nos.l and 2, I accept this appeal set aside the order passed by the learned Rent Controller dated 16‑1‑1993, accept the ejectment petition filed by the respondent and pass an order of ejectment against the respondent who shall I vacate the shop within a period of four months w.e.f. today, failing which the appellant shall be entitled to get possession of the premises in question in execution proceedings from a court of competent jurisdiction. It is directed that the tenant shall go on paying the rent regularly to the appellant in terms of the previous arrangement and shall also refrain from causing any damage to the shop in question or handing over the possession thereof to anybody else. The respondent shall also bear the cost of this appeal. AA./M‑1251/L Appeal accepted.