PLD 1971 Supreme Court 494 (PLP)

It appears that after the judgment of the High Court in the second appeal but before the presentation of the petition for special leave to appeal, the appellant, by a registered deed, dated the 20th November 1968, created a trust in respect of her properties, including the shop in dispute and appointed herself as the first trustee. The fact of creation of this trust and the consequential change in her status in relation to the disputes shop were not, however, disclosed in the petition for special leave The petition for special leave was, in fact, filed by the appellant in her individual capacity as owner landlord, notwithstanding the change of her status due to her own voluntary action, The creation of the trust by the appellant came to light after the lodgment of the concise statement by the respondent. In her concise statement, the appellant also admitted the creation of the trust by her in November 1968. Mr. S. M. Zafar, learned counsel for the respondent contends that with the creation of the trust the sole ground for ejectment of the respondent, namely, the requirement of the disputed shop in good faith for the appellant's own use, disappeared for the reason that the establishment and running of a clinic by the appellant-in the said shop will not be a purpose of the trust or enure to its benefit. It is, accordingly, contended by the learned counsel that the ground for ejectment having disappeared, the appellant's right to elect the respondent abated and the appeal is liable to be dismissed. Mr. Mahmud Ali, learned counsel for the appellant, on the other hand, contends that the ground for ejectment being the bona fide requirement of the disputed shop for the landlord's own use and `trustee' being covered by the definition of `landlord' in section 2(c) of the Ordinance, the requirement of the shop, either for the appellant's personal us! or for the use of the shop by the trustee as such, will be a valid ground for ejectment. Both the learned counsel have cited certain English decisions in support off their respective contentions. These are Sharpe v. Nicholls ((1945) 2 All E R 55), Parker v. Rosenberg ((1947) 1 All E R 87), McIntyre v. Hardcastle ((1948) 1 All E R 696), Wetherall & Co. Ltd. v. Stone ((1950) 2 All E R 1209) and Piper v. Muggleton ((1956) 2 All E R 249). Both the counsel conceded that the English Statutes with regard to ejectment of tenants are materially different from the West Pakistan Urban Rent Restriction Ordinance, 1959, where under the appellant sought to eject the respondent. It appears that even the definition of `landlord' in the relevant English Statute, as quoted in (1945) 2 Alf E R 55, materially differs 4 from the definition of 'landlord' in section 2(c) of the Ordinance. In view of the substantial differences between the English Statutes and the Ordinance, it would be unsafe to invoke the assistance of English decisions in construing the relevant provisions of the Ordinance as was pointed out by the Privy Council in the cases) of Mi. Ramanandi Kuer v. Mt. Kalawati Kuer (AIR 1928 P C 2) and Thiagaraja Bhagavathar v. Emperor (P L D 1947 P C 103) may be cited with approval. The deed of trust executed by the appellant on the 20th November 1968 is at page 60 of the paper-book. It appears therefrom that the appellant created a trust in respect of her properties at Lahore, including the disputed shop for religious and charitable purposes and that she herself is the first trustee. In view of this trust the question arises whether there still remains a valid ground for ejectment of the respondent. In other words, can it be said that the requirement of the disputed shop for the appellant's personal use, even if it is bona fide, is still a valid ground for ejectment? The above question is to be considered having regard to the relevant provisions of the Ordinance. Section 13 (3) (a) (ii) of the Ordinance reads thus: "13 (3) (a).-A landlord may apply to the Controller for an order directing the tenant to put the landlord in pos session- (ii) in the case of non-residential building or a scheduled 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 . . . . : ' Now, the definition of "landlord", as given in section 2(c) of the Ordinance, runs thus: "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 title under a landlord." According to this definition, a trustee is indeed a landlord for the purposes of section 13 of the Ordinance. Mr. Mahmud Ali, therefore, contends that the appellant, as trustee, is the landlord in the instant case and, as such, the expression "for his own use" occurring in section 13 (3) (a) (ii) means also the use by the appellant in her individual capacity. Accordingly, it is submitted that there still exists a valid ground for ejectment of the respondent. Mr. S. M. Zafar, however, differently construes the words "for his own use" occurring in section 13 (3) (a) (ii). According to him, the words "for his own use" mean the landlord's own use, that is, the use by the landlord as such. As, however, the appellant, in her capacity as trustee, became the landlord with the creation of the trust, the requirement of the disputed shop for running a second clinic by the appellant for her own purpose, in the opinion of the learned counsel, cannot be said to be the requirement of the shop for the trustee as landlord. There is a great deal of force in this contention. 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 a 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 the appellant's B personal use as a clinic will rather cause harm to the trust in that the trust would be deprived of the monthly rental of Rs. 150 payable by the tenant for the shop. Its is conceivable that the trustee, as landlord, may require the disputed shop for the use of the trust, say, for setting up of 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 require ment 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 will be all the more clear if we take the case of a receiver. A receiver appointed by a Court for the Management of a tenanted premises is also a `landlord' according to its definition in section 2 (c). Such a receiver, by the very nature of his appointment, is only to manage the premises and not to use it himself. That being so, the receiver, in spite of his being the landlord, cannot maintain an action for ejectment of the tenant on the ground that he requires the premises for his personal use. It is thus clear that the ground for ejectment in this case, namely, bona fide requirement of the disputed shop for the landlord's own. use as provided in section 13 (3) (a) (ii), does no more subsist. Accordingly, it is not necessary to consider if there was any misreading of the evidence by the two Courts below. In the result, I would dismiss the appeal, but having regard to the point of law raised for the first time in this appeal, would leave the parties to bear their own costs. HAMOODUR RAHMAN, C. J.-I agree. WAHIDUDDIN AHMAD, J.-I agree. K. B. A. Appeal dismissed.