P L D 1983 Peshawar 118 (PLP)

NAZIR AHMAD BHATH, J.‑In the following three writ petitions, the peti tioners are different persons but the respondents are the same, the facts are the same and points raised for determination are the same. Hence they are taken together and the judgment in the present Writ Petition No. 441 of 1981 shall dispose of the two other writ petitions also :‑ (i) Taj Muhammad v. Mohammad Naeem and others (W. P. No. 441 of 1981). (ii) Haji Kala Khan v. Muhammad Naeem and others (W. P. No. 442 of 1981). (iii) Ghulam Rasool v. Muhammad Naeem and others (W. P. No. 447 of 1981).

2. The petitioners in the three writ petitions, filed under Article 9 of the Provisional Constitution Order, 1981, have called into question the order of their ejectment passed under the West Pakistan Urban Rent Restriction Ordinance, 1959 with regard to Shops Nos. 2208, 2209 and 2210 by the Rent Controller, Peshawar on 30‑5‑1y81 and upheld in appeal by Mr. Muhammad Saleem Khan, Additional District Judge, Peshawar vide his judgment dated 22‑9‑1981.

3. The facts giving rise to this petition are that the petitioner is a tenant in suit Shop No. 2208 situate in Kucha Loharan, Bazar Reti, Peshawar City, under respondent No. I, owner thereof. Respondent No. 1 is a minor, aged about four years, that on 14‑10‑1981, Respondent No. 1 had filed an appli cation for the ejectment of the petitioner on the grounds that he intended to demotish the shop in question alongwith two adjacent shops (which are subject matter of other two writ petitions) and construct thereon a grand building to increase his income, that on the eastern side of the shop, father of respondent No. 1 was running business in a small shop in partnership with one Haji Muqarrab Khan (grandfather of respondent No. 1), which shop was owned by the wife of Haji Muqarrab Khan and since their business was very extensive and that shop was not suitable for running their business hence they need the newly‑constructed premises in which the father of respondent No. 1 will run his business. The respondent No. 1 wanted the shop vacated for reconstruction and personal use for the father of respon dent No. I. The said application was resisted by the petitioners but the Rent Controller decided the issues regarding the personal use and reconstruc tion in favour of respondent No. 1 and ordered the ejectment of the peti tioner therefrom. The appeal filed by the petitioner before the learned Addi tional District Judge was also dismissed.

4. Mr. Muhammad Sardar Khan, Advocate, appearing for the petitioner, contended that respondent No. 1, who is owner of the shop in question, is a minor of very tender age, that he could not run his own business and for that matter the question of personal use did not arise. His second attack on the impugned judgments was that the pleas of personal use and reconstruc tion were derogatory to each other and self‑destructive. Hence both the learned lower Courts have erred in passing the impugned orders.

5. It is an admitted fact that the and lord of these shops, Muhammad Naeem, respondent No. I, was only aged about four years at the time of institution of the application before the Rent Controller. It is also a fact that being of his this tender age, he could not run himself his own business. The application for ejectment was under the grounds mentioned in sub‑clause (a) of clause (ii) of subsection (3) of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as the Ordinance). For the sake of better understanding, this provision of the Ordinance is reproduced below :‑ Subsection (3)(ii)(a), section 13 of the W. P. U. R. O., 1959.--‑"A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession ; (ii) in the case of nonresidential building or a scheduled building or rented land, if ; (a) he requires it in good faith for his own use or for the use of any of his male children.

6. It shall be seen that in the case of a non‑residential building, the landlord has to prove his good faith regarding his own use or 'for the use of his any male child. The learned counsel for the petitioner has vehemently argued that respondent No. 1 being minor, he could not require the premises in good faith for his own use. No doubt such is the matter. However, we have given our anxious thought to this aspect of the matter. Admittedly, the owner of the shop being of the a very tender age, cannot run his own busi ness and that aspect has not peen ignored in the application for ejectment filed by respondent No. 1 before the Rent Controller. It has clearly been mentioned therein that the premises is required, after reconstruction, by the father of the landlord for running his business therein. The learned counsel for the petitioner has laid great stress on the plea that a shop could be got vacated only on the ground that the landlord required it in good faith for his own use or for the use or any of his male children. He has relied upon Messrs Franksons and Company v. Mian Muhammad Hussain (P L J 1973 Lah. 275), wherein a private Limited Company had applied for ejectment of the property which was transferred to the respondent, who was running a limited concern known as Mian Motors Limited, of which he was the Managing Director. In that case, it was held that the Limited Company was a separate juristic person and Mian Muhammad Hussain, although owner of the property, could not get it vacated as a Managing Director of the Company on plea of his personal use. In another case, reported in Dr. Miss I. Ali Muhammad v. Muhammad Shafiq (P L D 1971 S C 494) it was held that the petitioner requiring the vacation of her shop in good faith for her own use (for running second Clinic therein) had subsequently created trust in respect of all her property including the shop in dispute, she could not be stated to be requiring the property for her own personal use, and that it could not be said to be requirment for use of trustee as landlord and ground for ejectment in circumstances disappeared with creation of trust in respect of property. Counsel for the petitioner, Mr. Sardar Khan, further relied on the case Muhammad Zahir Khan v. Ch. Shah Muhammad (P L D 1980 Lah. 125), to emphasize his point that the term "children" appear ing in the aforesaid section, meant only children (in first degree) and no other person much less a father.

7. Although these contentions of the learned counsel for the petitioners are very plausible, but it does not seem to be the intention of the Ordinance that a minor landlord of a property should be deprived of the personal us of his property only on the ground that he is a minor. No doubt he can not run his own business, but the business, which would be run in that shop, by his father, would definitely be for the benefit of the minor. The father being head and bread‑earner for the entire family will be running his busi ness in the shops in dispute especially for the benefit of his minor son as well. To lay such a narrow interpretation on the words "personal use" in the afore said section, would tantamount to creating a very harsh situation and a hardship for a minor landlord. We are of the considered opinion that the Legislature did not intend to create such a hardship for a minor landlord.

8. The respondent No. 1 and his father went before the Rent Controller with a very clear conscience. To hold that the plea of personal use of the land lord has failed in the present litigation would tantamount to give licence to respondent No. 1 or his father to make some false claim for getting the property vacated. The business of the father of respondent No. 1, which would be carried on in the shop after its re‑construction, would, in our humble opinion, come within the purview of the personal use, because, as already stated earlier, that business would decidedly be also for the benefit of respon dent No.

1. In this respect, we are supported on all fours by our Learned Brother Khalil‑ur‑Rehman Khan, J. in the case Abdul Rashid v. Mst. Adiia Musarrat (1932 C L C 149), wherein the learned Judge faced with the same situation, has made the following observations :‑- "I have not been able to persuade myself to agree with the aforesaid reasoning. With respect and most humbly 1 am of the view that such an intention cannot be imputed to the Legislature. Considering the present set up of the society, the physical circumstances and the religious and social norms, it cannot be denied husband is the economic sustainer of the wife and the family and the business is conducted by the husband for the benefit of the wife and the family and the Legislature is not ignorant of the conditions prevailing in the society. Keeping in mind these very circumstances the Legislature employed the word `use' a word of wide signification. The words `own use' therefore include within its connection the beneficial enjoy ment of the shop irrespective of the manner, the mode and the method adopted, by the landlord/landlady provided that the manner, the method and the mode adopted is for his or her own benefit. To my mind the Legislature by employing the words `own use' is not contemplating the person of the landlord/landlady or the physical occupa tion by the landlord or landlady rather the emphasis is on the word `use'. The Legislature is not providing for the categories of persons but is providing for the beneficial use of the non‑residential building by the landlord/landlady for own benefit and or for the benefit of his or her male children. The interpretation canvassed by the learned counsel for the appellant would tend to encourage dishonesty and a landlady seeking eviction from non‑residential building will have to make a false plea that she requires a shop for running her own business through her husband when we were cognisant of the fact that in our social set up vast majority of our ladies do not conduct business through their husbands. Hence there appears to be no valid reason for limiting the words `own use' to the requirement of doing business through Agent or servant. It has been demonstrated above that the objection will disappear if a landlady is just to assert that the husband who will be occupying the shop is to run the business under or in partnership with her. Such a contrivance when employed, it is admitted, ‑would be bringing the case within the purview of the aforesaid clauses. The Legislature cannot be imputed the intention of promoting dishonesty and even otherwise such an interpretation cannot be given in spite of the contention of the learned counsel for the appellant that the provisions of Rant Laws should be construed strictly as the purpose of the law is to prohibit undue eviction of the tenants. I may add at this stage that the view taken by their Lordships of the Supreme Court in Ghulam Mohy‑ud‑Din's cast can only be taken if the aforesaid provision is interpreted in the manner indicated above. It was and it cannot be suggested that the learned Judges of the Supreme Court while deciding the above‑noted case were not aware of the provisions of section 13 (3) (ii) (a) of the Ordinance."

9. We cannot find better words to stress our view point and agreeing with our Learned Brothers, Khalil‑ur‑Rehman Khan, J., we repel these contentions of the learned counsel for the petitioners.

10. In so far as the second point raised by the counsel for the peti tioners is concerned, it appears, that he was swayed by an earlier judgment of this Court reported as Sheikh Muhammad Yusuf v. Mst. Zohran Bibi (P L D 1973 Pesh. 186) wherein our learned Brother Ghulam Safder Shah, C. J. had held that appli cant, owner of shop, seeking ejectment of a tenant linking personal require ment with that of teconstruction of premises, such pleas were destructive of each other. However, this judgment was dissented from by a Division Bench of this very Court consisting of Abdul Hakeem Khan, C. J. and Sardar Fakhre Alam Khan, J. in the case Badar and Brothers (Arms and Ammunitions Dealers) v. Muhammad Aslam and 2 others (P L D 1977 Pesh. 80), wherein it was held that the two pleas of personal use and reconstruction taken together were not destruc tive of each other. The latter view was also upheld by the Supreme Court in the case of Dawood v. Muhammad Yasin (PLD 1982 SC 227) and the judgment in the case of Sheikh Muhammad Yusuf v. Mst. Zohran Bibi was overruled. In view of the two clear judgments on this point, we cannot subscribe to the e contention that pleas of personal use and reconstruction are mutually destructive.

11. For the aforesaid reasons, we would dismiss this writ petition but as intricate points of law were involved, we make no orders as to costs. Stay already granted stands vacated. M. A. K. Petition dismissed.