P L D 1977 Karachi 80 (PLP)

Muhammad Saiduzzaman Siddiqui for Respondent. Date of hearing : 8th September 1976. This Second Appeal under the Rent Ordinance is directed against the con ,‑current findings of fact of the two Courts below that the premises in dispute are reasonably and in good faith required by the respondent‑landlady for the .use of her three male children. In support of her case that the premises were so required the landlady's attorney, her husband, was examined who deposed that the subject property had been purchased by the respondent for her three sons, namely, Idris Baig, Amin Baig and Ismail Baig who were selling their goods on the foot‑path in front of the shop in dispute. The cross -examination was directed to the ownership of the respondent's husband of a shop measuring 4' x 3' where he was carrying on his cloth business and that his sons used to sit in that shop. A suggestion was made to this witness in cross‑examination that the three sons were sitting in front of the father's adjoining shop which would clearly indicate that the Landlady's case that her three sons were carrying on business on the foot‑path was not denied. No suggestion was made to this witness that his sons were partners with him in his cloth business. That suggestion, however, was made to the son Ismail Baig who went in the box but it was squarely denied. Ismail in his deposi tion confirmed that he was selling cloth on the footpath for the last 13 or 14 years; his brother Idris Baig was selling Vermacelli and his third brother Amin Baig was selling crockery on the foot‑path and that they had no other ;place for doing business except the foot‑path. The tenant in the box stated that the three sons were doing business together with their father and added that the Landlady wanted that the rent be increased which was refused. In the cross‑examination the tenant admitted that the three sons were carrying on business as aforesaid. As regards the shop occupied by the father he denied the suggestion that it measures 4' x 3! The tenant examined one more witness Ghulam Muhammad, who deposed that the father of the three sons was an old man and sometime his sons used to sit in his shop and to a leading question that the father and sons were doing business in partnership answered in the affirmative. In the cross‑examination the witness admitted that the shop in possession of the father measured 4' x 4' and that he had Been his sons sitting on the foot‑path alongwith the goods in front of the father's shop which is incidentally only two or three yards away from the tenant's shop. He admitted that he had only presumed that the father and sons were carrying on business together. In this state of the evidence the two Courts below answered the landlady's case in the affirmative.

2. Mr. Fazal Bhai, the learned counsel for the tenant appearing alongwith Mr. Suleman Kassam raised several contentions in support of this Second Appeal. Their first contention was that the applicant landlady had not been examined. However, her attorney has been examined and that to my mind was adequate. I have not been referred to any decision holding that landlord himself must go in the box. That question perhaps arises in a case where the landlord claims the premises for his own use which is ,not the case here.

3. Secondly, it was contended that the husband of the Landlady owned a shop and, therefore, the applicant Landlady was occupying in the same area another shop suitable for her needs and, therefore, the eviction order should not have been made. The requirement of law, however, in case when eviction is sought for the applicant's own use, is that the applicant should not be in occupation of another suitable premises in the same urban area and if the premises are :squired for the use of the applicant's male children then the male children should not be in occupation of another A suitable shop in the same urban area. There is nothing in the evidence to show that either the applicant or what would be relevant in this case, her male children, were in occupation of any other suitable shop in the same urban area. Be that it as may, even if by some process of reasoning the husband's occupation of the shop was relevant that shop measured only 4' X 4' and it can hardly be considered to be suitable for the use of the three male children of the applicant.

4. Thirdly, it was contended that mere desire to obtain possession of a house for personal use was not sufficient for what had to be proved was that the same was reasonably and in good faith required. I am of the view that this was not a case of mere desire but of a dire need for the three sons of the Landlady were admittedly on the foot‑path. A more pressing case of personal use is difficult to imagine. In relation to this argument it was further contended that the subject property was purchased by the Landlady according to her own showing for her three male children and since she knew before its purchase that it is in occupation of a tenant she should not have purchased the same. The short answer to that would be that the law enabled the landlady to welt eviction for her personal use and the fact that when she purchased it she knew that it was in occupation of the tenant would have hardly any bearing on her bona fides. It was contended that one shop was not sufficient for three male sons. That may be true but I suppose the applicant had Hopson's choice in the matter for only one shop was available for the three sons. It was also contended that the sons are quite satisfied and happy to carry on their business on the foot‑path for a decade and should rest content with it. The argument assumes that a person has no right to better his prospects. In any event the occasion to evict the tenant did not arise until after the Landlady had purchased the tenement.

5. The last contention of the learned counsel was that the Landlady had to prove that her three sons were economically dependent upon her before she could obtain possession on the ground that the premises were required for the use of her three male children. The learned counsel relied on. Almas Begum and ethers v. Haji Pir Bakhsh and others (P L D 1964 Pesh. 278). But in so far as this decision is concerned there is no discussion and the learned Judge has relied upon an earlier Division Bench decision reported in Muhammad Amin and others v. Chief Judge, Small Causes Court, Karachi and others (P L D 1963 Kar. 695). First of all this was a case under the Karachi Rent Restriction Act in which the different language was "for his own use or for the use of any person for whose benefit the premises are held" while in the present Rent Ordinance the language is "for his own use or for the use of his any of the male children." Furthermore in the Karachi case there was no occasion to hold that it was the: requirement of the Karachi Act that the landlord must prove that his sons were economically dependent upon him. The Court was considering the meaning of the words "for his own use" and in this connection reference was made to certain Indian cases in which these words were understood a; including persons who were living with the landlord and economically dependent upon him. Be that as it may, in the present Rent Ordinance, was pointed out by Mr. Saeeduzzaman Siddiqui, tae words are clear and precise and these are for the use of his male children." If the argument advanced by the learned counsel for the tenant is accepted we shall have to add to the section the words "his dependent male children".

6. The result, therefore, is that this appeal is dismissed with no order as to cost. The appellant will vacate the premises within four months from the date hereof subject to the condition that he will continue to deposit rent as ordered by the Rent Controller. S. Q. Appeal dismissed.