1989 PLP 1077 (CLC)

This appeal is directed against the order of the Rent Controller accepting the eviction application filed by the respondent. The facts leading to the filing of the above appeal are that the respondent is owner of property bearing Plot No.lll‑D, 24/5, Nazimabad, Karachi‑18, and the appellant is tenant in respect of first floor thereof. The respondent applied for the eviction of the appellant on three grounds, namely requiring the premises in question for personal bona fide use and occupation for herself and her husband's family members, default in payment of rent and had sublet the premises. The appellant resisted the eviction application. The respondent filed affidavit‑in‑evidence of her husband and attorney Ghulam Mustafa and Inamul Haq. The appellant filed affidavit in‑evidence of his son Muhammad Anwar. They were cross‑examined by the learned counsel for the respective parties. The Rent Controller ordered the eviction on the ground of personal requirement and subletting. The appellant being aggrieved has filed the present appeal. Mr. Muhammad Sadiq the learned counsel for the appellant has contended that the need was not genuine and the brothers and sisters of the respondent's husband would not be covered by the definition of the word 'her own occupation or use or for the occupation or use of her spouse or any of her children'. The learned counsel has contended that the respondent has not proved subletting. On the other hand Mr. Shamim Ahmad the learned counsel for the respondent has submitted that the order is in accord with the evidence on record. The brothers and sisters of the respondent's husband would be covered under clause (vii) of subsection (2) of section 15 of the Ordinance. The respondent has established subletting. I have heard the learned counsel for the parties at considerable length and have also perused the R&P of the case. One of the main questions which has been considered by the Rent Controller is whether the ten persons residing with the respondent would be covered within the definition of "personal use". Section 2(g) defines the word "personal use" as the use of the premises by the owner thereof or his wife (or husband), son or daughter. Section 15(2) of the Ordinance authorises a landlord or landlady to apply for the premises on the ground at the landlord /landlady requires the premises in good faith for his/her occupation or use or for the occupation or use of his/her spouse or any of his/her children. According to the admitted case of the parties the respondent is wife of Ghulam Mustafa. In 1979 the mother of Ghulam Mustafa acquired ground floor consisting of one bedroom, one drawing room of building No.lll‑D,24/5, Nazimabad for the purpose and use of her four sons including the respondent's husband and her two daughters. The respondent was married to Ghulam Mustafa in February, 1981 and two children were born to her. Ghulam Mustafa purchased the entire building. The appellant and M. S. Qazi offered their co operation. Ghulam Mustafa is the eldest male member of the family who sometime was the only bread‑earner of the family and all others were dependent on him. The nine members living alongwith the respondent in the premises are, respondent herself, her brother, her husband's mother, three brothers, two sisters and two sons. The question for consideration, therefore, is whether the husband's mother, his three brothers and two sisters could be covered by the definition of "personal use" as laid down in section 2(1) of the said Ordinance. The Controller held in the impugned order that the mother, brothers and sisters cannot live separately from the respondent and her husband. As such he held that the accommodation in the possession of the landlady is not sufficient to meet her need. 1n my opinion this is not an erroneous view of law. It is not disputed that all the seven members were residing prior to respondent's marriage to Ghulam Mustafa. It is not disputed that the respondent was married to Ghulam Mustafa in February, 1981. It is not disputed that Ghulam Mustafa was residing along with three brothers, two sisters and mother with him. It is not disputed that the ground floor consists of three rooms only. The respondent asserted in eviction application that the ground floor consists of three rooms i.e., one bedroom, one drawing room and dining room. The appellant denied in his written‑statement. The respondent's husband stated in his affidavit that the ground floor consists of three rooms. The son of the appellant admitted in his cross‑examination that the ground floor consists of three rooms, store room and two verandahs. In this view of the matter it is an admitted fact that the ground floor consists of three rooms, one store room and two verandahs. The respondent sought premises in question for herself and nine family members. The respondent's husband stated in his affidavit in evidence that he required the premises in question for his mother, brothers and sisters as they are residing with him. Learned counsel for the appellant has argued that the bona fide requirement of landlord has been the subject‑matter of interpretation by several decisions. He has cited some cases before me. In Abdullah Baloch v . Adam Ali P L D 1961 SC 28, the Hon'ble Supreme Court held as follows:‑ "Requirement for the use of his brother would not satisfy the condition of section 10(2)(c)(ii) of the Act, in the absence of anything to show that the premises were held by him for the benefit of his brother. Therefore, it seems plain enough that the suggestion that new passage was required for the use of women‑folk of Adam Ali's family was incorrect. It was rejected by the Rent Controller, who also negatived in plain words the allegation that Adam Ali required further space in these premises for carrying on his own business." , In Rustom Khudadad v. Arakan Furniture Mart P L D 1962 (W.P.) Kar. 79 the facts of the case are that "the premises was required by the appellant for two of his nephews who had lost their father and the anxiety of the appellant was to make a provision for their livelihood and that he could thus claim the benefit of item (c)(ii) of subsection (2) of section 10 of the Act which merely provides that the landlord should reasonably and in good faith require the premises for his own use or for the use of any person for whose benefit the premises are held. The case of the appellant is that the desire of settling his nephews could reasonably be construed as requiring for his own use. It was held that it would be straining the language of the Statute to produce any such result. The 'use' contemplated by the provision is either personal use of the landlord or for the beneficiaries of the premises. In Mumtaz Humayun v. Major Habib‑ur‑Rehman P L D 1969 Lah. 886 the premises was sought on ground of requirement of relatives (widowed mother). It was held that it was not the landlord himself who wanted to occupy the premises in question nor like the case of P L D 1965 Kar. 408, he wanted to live in alongwith mother in the house in question and in that way to settle the house on her and as such this was not permissible under the provisions of the Statute. In Haji Lal Bux v. Mistri Allahdad 1980 C L C 984 (Kar.) it was held that expression 'for his own occupation' under section 13(3) (1)(a) is to be construed liberally and interpreted to include not only need of family, dependents and persons essential for such occupation but also other general requirements of landlord. It was held that the word "for his own occupation" which occur in para (a) should be taken to include all genuine requirements of the landlord and not be restricted to the requirement of a shelter for his own body and bodies of his children. In M.A. Khan v. Mst. Masooda Shaheen 1981 C L C 1358 (Lah.) it was held that:‑ "In this case the landlady was requiring the premises for occupation of her‑in‑laws. It was held that at any rate providing accommodation to old parents‑in‑law alongwith her, it cannot be said that the respondent does not require the premises in question for her, own use or that such a claim is beyond the scope of the provisions contained in section 13(3)(a)(i) of the Ordinance.' In Wali Muhammad v. Zainab Khatoon 1983 C L C 321 (Kar.) the learned Single Judge of this Court held that:‑ "Personal and bona fide requirement of landlord cannot be confined strictly to landlord's personal need only but is to be liberally construed so as to include requirement of such other members of landlord's family who were dependent on landlord for such accommodation or have become part of his family." In Muhammad Shafi Dad Khan v. Hassan‑ul‑Azmi 1983 C L C 2238 (Kar.) it was held that:‑ "Person closely related to and residing with landlord need not strictly be dependent on him. It is not necessary that the persons who are residing with the landlord must strictly be dependent on him. They may be closely related with the landlord that it may be impossible for him to live separately from them or to turn them out of the house so as to have his own premises himself alone." In Soofi Irshad Ahmad and another v. Raza Kamal Mir 1983 CLC 755 it was held:‑ "It has been argued on behalf of the respondent that the appellants needed a rented premises for the use of their father (Mien Ahmad Hussain Khan) and this Mian Ahmad Hussain Khan's need not be treated as their personal need within the meaning of section 13 of the Ordinance. It was held that this argument is absolutely devoid of merit because the appellants themselves being the son and wife of Mian Muhammad Hussain lived with him in official accommodation during his service in Pakistan Railways. After his retirement they have also to live with him somewhere else they thus require the premises for their personal use." In Adamali Hassanali v. Mst. Rubab Bai P L D 1965 Kar. 408, it was held that expression "for his own occupation" is to be construed liberally and must be interpreted to include not only need of family, dependents and persons, essential for such occupation, but also all other genuine requirements of landlord. It is further held that genuine need of landlord depends on circumstances and facts of each case. It was in Adam Ali Hassan Ali v. Mst. Rubab Bai P L D 1967 Kar. 437 held that the expression for his "own occupation" in section 13(3)(a)(i) of the West Pakistan Urban Rent Restriction Ordinance was to be liberally construed to include requirement of dependents of landlord. It was in Muhammad Mah v. Sultan Ahmad and another 1986 C L C 1539 held that Ordinance allowed a parent to seek premises for any of the children but does not allow the son or daughter to seek premises for the use of himself or their parents. The respondent's husband stated in his affidavit‑in‑evidence that his brothers, sisters and widowed mother reside with him jointly. In view of this statement the respondent has proved that the premises in question are required by her. I am of the view that the expression 'personal use' in section 2(g) of the Ordinance and the expression "for his own occupation or use or for the occupation or use of his spouse or any of children" in clause (vii) of subsection (2) of section 15 of the Ordinance is to be liberally construed and must be interpreted to include not only need of himself/herself but all other persons who are residing with him/her as a joint family. Reverting to the last contention of the learned counsel for the appellant that the subletting has not been proved by the respondent in this case. I have gone through the evidence adduced by the parties. I agree with the learned counsel for the appellant that the respondent has not proved subletting. It has come in evidence that the appellant is residing in the premises. I am of the view that this ground has not been established by the respondent. For the aforesaid reasons; I do not find any force in this appeal, the same is dismissed with no order as to costs. However, the appellant is allowed four months' time from today to vacate and hand over the premises in question to respondent. M . Z . S . / L‑26/ K Appeal dismissed