1986 PLP 808 (CLC)

‑‑Ss. 15(2)(vii) & 21(1)‑‑Personal bona fide need‑‑Plea‑‑Determination‑ Landlord in his affidavit of evidence stated that he required premises in dispute for himself and for his 4 sons who had no place of business‑‑In his cross-examination landlord made certain admissions that he had other shops in his own possession and in possession of his sons‑‑In cross-examination or in other evidence brought on record it was not clarified that who among landlord and his sons occupied premises admitted by landlord in his cross‑examination‑‑Landlord himself had died‑‑In view of admissions made by landlord in his cross‑examination regarding existence of at least three business premises‑‑Rent. Controller, held, should have examined plea of bona fide need of landlord and cross with reference to his admissions in circumstances‑‑Landlord having since died and his sons having inherited shop in his occupation, it was, held further, to be examined by Rent Controller whether that shock could meet the needs of four sons of deceased:-- G.H. Malik for Appellants. M. M. Mahmudi for Respondents. Date of hearing: 20th November, 1985. This appeal under section 21 of the Sind Rented Premises Ordinance, 1979 is filed .by the tenant /appellant against the order of eviction passed by the Rent Controller in Rent Case No. 341 of 1980 which was instituted by the deceased K. M. Ahmed. In the rent application the deceased K.M. Ahmed sought eviction of the appellant on two grounds, naively, that the agreement between the parties which was for a period of five years has expired and, that premises in occupation of the appellant were required by the deceased as well as by his four sons, namely, Furqan Ahmed Gulzar Ahmed, Mehtab Ahmed and Shadab Ahmed for their personal and bona fide requirement. It appears that at the hearing of the case the ground that the tenancy of the appellant expired and, therefore, the deceased was entitled to evict the appellant from the premises was not seriously pressed and it is also not agitated in this appeal. The deceased in support of his application on the ground of personal and bona fide requirement examined himself and his son Gulzar Ahmed and another son Mehtab Ahmed. He also filed affidavit of one of his sons Furqzan Ahmed but he was not produced for cross‑examination before the Rent Controller. The appellant in rebuttal examined one of his officers Anwar Khurshid Rizvi. After assessing the evidence produced by the parties the Rent Controller reached the conclusion that the sons of the deceased had no place of business and, therefore, they have succeeded in establishing personal and bona fide requirement and he accordingly made an order of eviction against the appellant. Mr. G.H. Malik, learned counsel for the appellant has raised following contentions in this appeal. It is firstly contended by the learned counsel that the application for eviction filed by the deceased was not maintainable in view of the first proviso to subsection (3) of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959. On merits it is contended by the learned counsel that the deceased and his sons in their evidence before the Rent Controller categorically stated that the deceased had no place of business whereas the deceased in cross‑examination admitted that he was in occupation .of one of the shops in the same building which was adjacent to the bank besides admitting that one shop was in possession of one of his son Amin and another shop is in possession of Irfan and one cabin in Katcha Gall. In, view of above admissions made by the deceased in his cross‑examination the learned counsel contended that there was sufficient business accommodation available with the deceased to accommodate his four sons named in the application which was suppressed in examination‑in‑chief and, therefore, the application licked bona fides on the part of the deceased. In so far the first contention of the learned counsel that the application was not maintainable is". concerned, I am unable to agree with the same. The tenancy agreement Exh.7 which is on record in its recital reads as follows:‑

Whereas the landlord has agreed to rent out a portion admeasuring about 1,600 sq. feet marked with red in the Plan enclosed herein, on the ground floor of the said building (hereinafter called the "demised premises" on a monthly rental of Rs.3,200 payable in advance for five years." A reading of the above recital in the tenancy agreement makes it clear that the agreement was initially for a period of five years. No doubt other terms of tenancy agreement do show that after expiry of first five years the appellant was to continue as tenant of the promises on payment of monthly rent but such provision in the agreement could not limit or restrict the right of landlord to file application for eviction of tenant on the ground of personal and bona fide requirement The learned counsel in this connection referred to section 2(j)(i) of Ordinance XVII of 1979 to contend that the eviction application against a tenant can only be filed after termination of tenancy agreement and as in the present case the agreement of tenancy entered into between the parties in 1974 was still subsisting, the landlord could not institute the ejectment case. The argument of the learned counsel proceeds on a misconception of the definition of tenant given in section 2(j) of Ordinance XVII of 1979 which reads as follows:‑

"(j) "tenant" means any person who undertakes or is bound to pay rent as consideration for the possession or occupation of any premises by him or by any other person on his behalf and includes:‑ (i) any person who continues to be in possession or occupation of the premises after the termination of his tenancy; (ii) heirs of the tenant in possession or occupation of the premises after the death of the tenant;" A bare reading of the above provision will show that a 'tenant' means a person who undertakes or is bound to pay rent as consideration for possession or occupation of any premises by him or by any other" person on his behalf. This definition leaves no room for any doubt that a tenant who is in possession of a premises under a subsisting agreement of tenancy is a tenant and could be sued for eviction under section 15 of the Ordinance XVII of 1979. The clause (i) of subsection (j) of section 2 of the Ordinance relied by the learned counsel only included in the above definition of 'tenant' also a tenant whose tenancy is terminated but he continued to occupy the premises after termination of his tenancy. There is absolutely no justification to contend on the basis of section 2 (j)(i)(ibid) that a tenant who is holding the premises under a subsisting contract of tenancy cannot be treated as a 'tenant' against whom ejectment proceedings could be filed under section 15 of the Ordinance. The learned counsel urged that a reading of tenancy agreement Exh.7 will show that the tenancy between the parties was for an indefinite period and this being so, as long as the appellant paid the rent, the eviction application could not be filed on the ground of personal and bona fide requirement as such an application was barred under first proviso to section 13 (3) of Ordinance VI of 1959. The learned counsel contended that in spite of repeal of Ordinance VI of 1959 the rights and liabilities of the parties continued to be governed under the repealed Ordinance as the tenancy agreement was executed in the year 1974 when Ordinance VI of 1959 was very much in the field. This argument of the learned counsel is equally without any merit. Ordinance VI of 1959 was repealed by Ordinance XVII of 1979 which came into effect on 21st November, 1979. It is an admitted position that or the day of repeal of Ordinance VI of 1959 no proceedings were pending for eviction of appellant from the premises in dispute. In these admitted circumstances I am unable to understand the contention of the learned counsel for the appellant that the provisions contained in the repealed Ordinance could be availed by the appellant. The ejectment application in the case was filed in July, 1980 and on that date the relationship of landlord and tenant between the parties was regulated by Ordinance XVII of 1979 which contained no provision similar to first proviso to section 13(3) of Ordinance VI of 1959. Apart from it the proviso to section 13(3) of Ordinance VI of 1959 relied on by the learner counsel was applicable only to a case where the tenancy was for a specified period. It is not the case of the appellant before me or before the Rent Controller that the tenancy was for a specified period.t The contention of the learned counsel for the appellant before me is that the tenancy is for indefinite period. There is marked difference between a tenancy for a specified period and the tenancy claimed to be for indefinite period. In the case of tenancy for a specified period, it comes to an end as soon as the period mentioned in the tenancy agreement is consumed while in the case of a tenancy for an indefinite period, it does not terminate at any specified period of time. The proviso to section, 13(3) of Ordinance VI of 1959 relied by the learned counsel is therefore, not applicable to a tenancy which is claimed to be for indefinite period. There is nothing either in Ordinance VI of 1959 or in Ordinance XVII of 1979 which debarred a landlord from filing an application for eviction of his tenant on the ground of personal and bona fide requirement where the tenancy is for an indefinite period. I therefore, overrule first contention raised by the learned counsel for the appellant. On merits the learned counsel has contended that the deceased applicant in his affidavit of evidence before the Rent Controller specifically stated that he or his sons have no place of business whereas there are certain admissions made by him in his cross‑examination that he was in possession of one of the shops in the same building where the premises occupied by the respondent are situated. He also admitted in cross‑examination that one of his sons Amin is also occupying another shop in the building where the premises in dispute is situated. Besides these two shops he further admitted in cross‑examination that his son Irfan is occupying another shop in Denso Hall while to another suggestion in cross‑examination that there was yet another shop in his possession under the name and style of 'K.M. Ahmed Plastic Works' he denied the suggestion but voluntarily stated that same is a cabin in Katchi Gali. It is, however, not clarified further in the cross‑examination or in the other evidence brought on record that who occupied the said premises. The two sons of the deceased Gulzar Ahmed and Mehtab Ahmed examined in the case also asserted in their affidavits that they alongwith 2 other sons of the deceased named in the application are carrying on business on footpath and have no place of business, and, therefore, needed the disputed shop for their occupation alongwith the deceased who also had no place of business. No question worthwhile was put to these witnesses in cross‑examination by the appellant. However, the fact remained that in view of the admission made by the deceased applicant in his cross-examination regarding existence of at least three business premises the Rent Controller should have examined the plea of bona fide need of the applicant and his cross with reference to the admission. There is yet another factor which requires further consideration. The deceased who had claimed the shop in dispute for himself as well as for his four sons has died and upon his death his property has been inherited by all the nine sons and others heirs of the deceased. It cannot be disputed that the shop in occupation of the deceased applicant could now be claimed by his heirs jointly. It is, therefore, necessary in this contest that the Rent Controller should re‑examine the case to determine whether the shop occupied by the deceased could be utilized for his 4 sons named in the application. I accordingly accept this appeal, set aside the order of Rent Controller and remand the case back to the Rent Controller with the direction to re‑examine the case of personal requirement afresh in the light of the above observation. The Rent Controller may, if he feels necessary allow the parties to lead further evidence of the issue of personal and bona fide requirement in view of the change in the circumstances. There will be no order as to costs. H. B. T. Appeal accepted.