1994 PLP 1884 (MLD)

This appeal is directed against order dated 19-6-1993 passed by the Rent Controller Lahore Cantonment through which the ejectment petition filed by the respondent seeking eviction of the appellant from the premises in dispute on the ground of personal need was accepted.

2. The premises in dispute which is portion of the property in dispute was rented out to the appellant by the respondent on 15-7-1991 for eleven months with a stipulation that the same was renewable with the consent of both the parties.

3. Before the expiry of the initial period of eleven months the respondent issued notice to the appellant on 25-2-1992 (Exh.R.W.2/1) intimating him that she had sold the portion of the property in her occupation and would live in a rented premises for some time and would be in the need of portion of the Property in which the appellant was living as tenant. According to this notice the respondent was in occupation of three rooms of the property in dispute which according to her had been sold.

4. The respondent filed ejectment petition against the appellant seeking his eviction on the ground that she required in good faith the premises in dispute for the use of her parents and widowed sister. This application was contested by the appellant by filing reply in which it was averred that the ejectment petition had been moved with mala fide intention. The Rent Controller framed the following issues:

(1) Whether the instant ejectment petition has been filed by the petitioner with mala fide intention, just to pressurise the respondent? OPR (2) Whether the petitioner requires the suit property in good faith for his personal use and occupation? OPR (3) Whether the respondent has damaged the suit property, so as to have materially impaired in its utility, look and value? OPP (4) Whether the respondent has committed act of such nature as he is nuisance to the neighbourers? OPR (5) Relief.

5. The respondent examined Muhammad Latif son of Abdul Ghafoor as P.W.1, Javaid Ahmad son of Muhammad Ibrahim as P.W.2 and husband of the respondent Tayyab Saleem as her attorney on her behalf appeared as P.W.3 The documentary evidence produced by the respondent consisted of the following documents:

(1) Special power of attorney Exh.P.I. (2) Certified copy of the suit filed by the petitioner against the respondent for permanent injunction dated 7-7-1992. (3) Certified copy of the written statement filed by the respondent in the suit. (4) Certified copy of the order dated 31-10-1992 passed by the Civil Judge ? Mr. Muhammad Ajmal Hussain disposing of the suit. (5) Certified copy of the suit filed by the respondent against the petitioner of the Additional Executive Officer, Lahore Cantt, dated 23-7-1992. (6) Photo copy of the lease agreement dated 15-7-1991. On the other hand the appellant examined in defence Jameel Khan son of Anwar Ali Khan and R.W. 1 and the appellant himself appeared as R.W.2 and also produced in evidence the following documents:

(1) Letter dated 10-4-1993 written by P.W.1 to the respondent Exh. R.W. 1/1. (2) Letter written by the petitioner/landlady to the respondent dated 25-2-1992 Exh.R.W.2/1. (3) Letter of the respondent in the name of petitioner dated 1-6-1992 Exh.R.W.2/2 (4) Postal receipt Exh.R.W. 2/3. (5) Acknowledgement due receipt Exh.R.W.2/4. (6) Letter written by the respondent to the petitioner dated 29-6-1992 Exh. R.W.2/5. (7) Copy of pay order dated 28-6-1992 for a sum of Rs.3,87,200 Exh.R.W.2/6. (8) Acknowledgement due receipt Exh.P.W.2/7. (9) Letter issued by the counsel for the petitioner to respondent dated 7-7-1992 Exh.R.W.2/8.

6. The Rent Controller after considering the evidence of the witnesses of the respondent came to the conclusion that bona fide need for personal use of the member of family of the respondent had been proved therefore, through order dated 19-6-1993. The ejectment petition was accepted and appellant was ordered to vacate the premises which has been assailed in this appeal.

7. I need not scrutinise the evidence produced by the respondent in detail as the appeal is liable to be accepted on a law point viz. that the person for whom according to evidence of husband of respondent who examined himself as her attorney, the premises were needed do not fall within the expression of "family" as defined in section 2(e) of the Cantonments Rent Restriction Act, 1963. The "family" has been defined as under:

'family' of a person means and includes a husband, wife, children, dependent parents, dependent brothers, unmarried or widowed sisters and a deceased son's widow and children residing with, and wholly dependent upon that person".

8. According to section 17 a landlord could seek the eviction of a tenant if the premises were needed by him for himself or for occupation of any member of' his family. According to the above definition the family of respondent-landlady would mean she herself, her children, husband, parents and dependent sister. According to evidence given by her husband when he appeared as her attorney the premises were required for the use of his own parents and widowed sister who do not fall within the definition of expression "family" of the respondent herself therefore, the ejectment petition could not have been accepted. The view taken by me is fully supported by judgment reported as Nazir Masih v. Mst. Hajera Shaheen and 2 others PLO 1982 Kar. 552.

9. As against this learned counsel for the respondent placed reliance on Judgment reported as Mahmood-ul-Hassan v. Muhammad Jameel 1980 CLC 829 in which case the need for deceased brother's children who were dependent on the landlord i.e. their uncle was considered to the personal need of the landlord and his family. This judgment has been given in a case under West Pakistan Rent Restriction Ordinance, 1959 in which the expression "family" has not been defined. In the circumstances of the said case the children of landlord's deceased brother who were to be brought up and looked after by the landlord being dependent on him were treated to be his liability, therefore, it was held that their need was the need of the landlord. In the present case Cantonments Rent Restriction Act, 1963, has defined the expression "family", therefore,, the case is to be decided in the light thereof and the judgment delivered under the provisions of Rent Restriction Ordinance, 1959, cannot be of any benefit to the respondent.

10. Learned counsel for the appellant when questioned admitted that the appellant did not sell the portion consisting of three rooms in her possession in the same property as the idea to sell the same was subsequently abandoned, He also admitted that the only son of the appellant has gone abroad and in that portion only the appellant and her husband is living. In this view of the matter I am also not persuaded to hold that even if the husband of the appellant was to keep his parents with him, accommodation already with the appellant was sufficient for that purpose. The order passed by the Rent Controller in this case in not sustainable for the foregoing reasons. This appeal is accepted. The order dated 19-6-1993 passed by the Rent Controller is set aside and eviction petition dismissed.

11. There will be no order as to costs. H.B.T./A-631/L?????????????????????????????????????????????????????????????????????????????????? Appeal accepted.