1985 PLP 165 (CLC)

The respondents filed an ejectment application in respect of the premises being a portion of the ground floor of the building situated on Plot No.249, Garden (East) Karachi. Another ejectment case on the same ground was filed against Turab Ali appellant in First Rent Appeal No. 449 of 1984 in respect of a portion of the first floor of the same building. As in both these appeals common questions of law and facts are involved they will be disposed of by this judgment. The main ground for ejectment was that the respondents are residing in a rented house in North Nazimabad, and require the premises for their use and occupation. The appellant denied the claim of the respondents. A preliminary objection was raised that the respondents are not the landlords, but they are Mutwallis or Trustees of the Waqf Estate of late Haji Muhammad Istafa Khan. It was also alleged that personal requirement is false, fictitious and lacks bona fide and further that they are trustees of about 10 building which have been mentioned in the written statement. The learned Controller by the impugned order granted the ejectment application. It may be mentioned here that during the pendency of appeal Safia Khatoon one of the respondents died and her name was struck off by order, dated 11‑i1‑1984. Mr. Mirza Abdul Rashid the learned counsel for the appellant contended that as the property is a Waqf property, the respondents being its Trustees cannot be treated as landlords within the meaning of section 2(f) of the Sind Rented Premises Ordinance, 1979. Section 2(f) reads as follows:‑ "'Landlord' means the owner of the premises and includes a person who is for the time being authorised for entitled to receive rent in respect of such premises." The appellant has not disputed that the respondents are entitled to receive, rent in respect of the disputed premises. Mr. Mirza has also referred to the definition of the word 'landlord' as mentioned in section 2(c) of the Urban Rent Restriction Ordinance, 1959 which reads as follows:‑ "2(c) 'Landlord' means any person for the time being entitled to receive rent in respect of any building or rented land whether on his own account or on behalf or for the benefit of any other person, or as a trustee, guardian receiver, executor or administrator for any other person, and includes a tenant who sublets any building or rented land in the manner hereinafter authorised and every person from time to time deriving the title under a landlord." According to the learned counsel in this definition a 'trustee' has been treated as landlord, but he has been excluded from the definition of the 'landlord' as contained in Sind Rented Premises Ordinance, 1979, therefore,‑by implication a trustee cannot be a landlord. The aforestated definitions are contained in two separate legislations. Though their subject‑matter is the same it would not be proper to presume by implication that as the word 'trustee' has not been included in the definition contained in section 2(f) he is excluded from being a landlord. In. the definition as stated above, besides the owner of the premises 'any person who is authorised or entitled to receive rent in respect of such premises' is also a landlord. These are the key words for determining the controversy here. A person who is authorised or is legally entitled to receive and recover rent in respect of a premises is a landlord. From the trust deed, it is clear that Haji Muhammad Istafa Khan was the Wakif and had created the Waqf Alal Aulad. The names of the descendents have also been mentioned in the trust deed. He first appointed himself as the first Mutwalli/Trustee of the Waqf during his life time with absolute power of management, and after his death other persons were appointed as Trustees. It is not denied that the respondents are not the trustees of the disputed property, as required by the trust deed. Under the trust deed, trustees have been appointed to manage and sell the property and to distribute the income among the beneficiaries. It is also not disputed that the respondents are the beneficiaries under the trust. The trustees are always appointed to manage the trust property and look it after in the manner, provided 1by the trust deed. The respondents are managing the property for their benefit as well as for the benefit of other beneficiaries mentioned in the trust. One of the incidents of management of a property is to receive and collect the rent from the tenants. In the circumstances, in my view, the respondents are covered by the definition of 'landlord' as provided under section 2 (f) of the Sind Rented Premises Ordinance, 1979. Mr. Mirza the learned counsel has referred to Dr. Miss I. Ali Muhammad v. Muhammad Shafi P L D 1971 S C 494, and contended that the personal requirement of the respondent cannot be treated as requirement of the trustee landlord. In this case the appellant had filed application for ejectment on the ground of personal requirement for running her clinic. The prayer was rejected by the Controller and the appellant Court both. During the pendency of appeal before the Supreme Court, the landlady created a trust in respect of her properties including the disputed premises and appointed herself as the first trustee. In these circumstances, the Supreme Court while considering the definition of the word 'landlord' under the West Pakistan Urban Rent Restriction Ordinance held as follows:‑ "The running of a second clinic in the disputed shop by the appellant in her individual capacity will benefit herself alone and will not enure to the benefit of the trust. Nor can the running of the clinic in the disputed shop be a purpose of the trust. Far from augmenting the trust to any extent, the use of the disputed shop for appellant's personal use as a clinic will rather cause harm to the trust in that trust would be deprived of the monthly rental of Rs.150 payable by the tenant for the shop. It is conceivable that the trustee, as landlord may require the disputed shop for the use of the trust, say, for setting up an office of the trust itself. In such a case the use of the shop will be the trustee‑landlord's own use. Here, however, the appellant, in her individual capacity, requires the disputed shop for her own use as a clinic and that requirement is still the basis for claiming ejectment. The trust is not in any way, concerned, with the running of a clinic by the appellant in her individual capacity. Accordingly, although the appellant as trustee is still the landlord the requirement of the shop for her use as a clinic cannot be said to be a requirement of the shop for the use of the trustee as landlord." This case is clearly distinguishable on facts. The trustee there had filed an application for her own personal use, but such personal use was not covered by the purpose of the trust. It was the individual need of the trustee, which was not sanctioned by the trust deed. In the present case, the respondents have filed ejectment application for their personal need which is in accordance with the trust deed and purpose of the trust. The purpose of the trust is to maintain the trustee being the beneficiaries mentioned in the trust. According to Mr. Mirza the purpose of the trust was to provide maintenance and not residence. The meaning placed by the learned counsel on the word "maintenance" is too narrow to be accepted ` There is nothing in the trust deed to show that the respondents or beneficiaries are entitled to the benefit to the extent of only receiving money from the income of the trust. The word maintenance has a wide meaning. It includes giving money, food, lodging, boarding, clothing, education, medical aid and other benefits which are necessary for living. Maintenance cannot be restricted only to giving money. The trust was created for the welfare of the beneficiaries, and it will be incorrect to assume that the beneficiaries cannot reside in the premises, if they do not have any proper accommodation to live in. In my view the word 'maintenance' will include the provision for lodging and residence of the beneficiaries as well. In these circumstances, the respondents being the landlords are entitled to make a claim for their personal bona fide requirement. The trust property and its income can be used as provided by the trust deed. A trustee being a landlord within the meaning of section 2(f) Sind Rented Premises Ordinance, 1979 is entitled to file application for ejectment for his personal requirement provided such requirement is covered by the purpose of the trust, I am strengthened in my views by the observations of Dorab Patel, J. (as he then was) in Syed Rashid Husain v.Husain Hap Ahmed P L D 1973 Note 138 at 209 where relying on Adamali Hasan Ali v. Mst. Rubab Bai P L D 1965 Kar. 408, P L D 1967 Kar. 437 and Agha Muhammad Ilyas v . Masjid Committee, Rahim Yar Khan P L D 1968 Lah. 863, it was observed that the provisions of section 13(3) (a) of the Urban Rent Restriction Ordinance have been very liberally construed and: 'Thus, in the case of property held on a trust, only the trustees of the property are the landlords under the Ordinance and this is in consonance with the law of trust.' While referring to Agha Muhammad Ilyas's case where premises required for the Imam of the mosque was "considered to be required by the mosque and its managing committee for its own occupation" Patel, J. (as he then was) observed as follows:‑ "But with great respect, this conclusion could only be reached on the further principle that when property is held on trust the requirement of the trustees under clause (a) of the subsection must be deemed to be the requirements of the person or person; for whose benefit the property is held on trust or the require ments necessary for fulfilling the object of the trust. This i: the necessary consequence of the principle of trust, and in my humble opinion the case rests on this view. I am fortified in my opinion by a passage in the judgment of Akram J. In para. 5 o1 the judgment, thus, the learned Judge has observed:‑ As association or a body of persons, the members of which cannot possibly reside together may require a building for conducting a school must be in their 'occupation', directly i1 the members conducted or run it, or constructively if it is done through others. Therefore, a premises, genuinely needed by an association in order to fulfil aims and objects for which it is established, may be considered to be required for its own occupation." In a recent judgment Darul Uloom Naeemia Trust Karachi v. Muneer Ahmed 1984 C L C 3483 similar question as in this appeal came up for consideration, where my learned brother Naimuddin, J. referring to section 2(f) of the Sind Rented Premises Ordinance, observed as follows: ‑ "Since the Ordinance applies to Trust premises, therefore, its provisions are to be construed keeping in view the nature of the Trust, its objects and needs. Thus in the case of Trust properties, the trustees could require the premises either for their own residence on the premises to carry out the Trust more effectively or for the use of beneficiaries or for the purposes of Trust, say, to open the office of the Trust or to carry out the object of the Trust." Coming to the next aspect of the case Mr. Mirza contended that the respondent has not established bona fide requirement. According to him the claim lacks bona fides, as prior to the filing of the ejectment case, the respondents had shifted to a rented house, and are alleged to have rented out their house at Jamshed Quarter. In this regard the respondent's witness has stated that they have shifted from the house at Jamshed Quarter belonging to the Trust, as they wanted to sell that house. The agreement to sell was subject to the condition that it will be registered on obtaining' permission from the High Court. As the High Court did not permit the sale of the property, the purchaser,', who had been put in possession was treated as tenant. In such circumstances, it cannot be held that the respondents have acted mala fide. The burden to establish mala fides is on the person alleging it. The appellant has not produced any evidence to show that the respondents have vacated the premises with the intention of obtaining possession of the disputed premises. The learned counsel for the appellant has referred to Chuttoo Bhai Panwala v. Mst. Sara Bai 1984 C L C 1769 in which the landlord had let out a premises 2/3 years prior to filing of the ejectment application and his family had not increased. The application for ejectment filed on the ground of personal bona fide use was rejected For lack of bona fides. In the present case, the respondent has explained the circumstances, in which the house was let out and as observed earlier, the lack of bona fide has not been established. The next case referred by the learned counsel is Mst. Hajra Bai Suleman v. Mst. Aisha Bai 1982 C L C 1444. In this case it was held that if the landlord is residing in a rented house, it does not ipso facto confer a right on the tenant to obtain ejectment on the ground of personal requirement. There can be no cavil with this principle. In such case, the landlord has to show that he requires the premises for his personal bona fide use and occupation. On this plea, the evidence on record produced by the respondent has remained unchallenged. Considering the number of the respondent's family members which exceeds 15 persons, the requirement in respect of a portion of the ground floor and first floor premises which is subject‑matter of First Rent Appeal No. 449 of 1984 is fully established. The net result is that the appeal is dismissed. The appellants are allowed to vacate the premises, on or before 31‑12‑1985. If they fail to vacate by this date, the writ of ejectment shall be issued without notice. A. A. Appeal dismissed.