1992 PLP 910 (MLD)

Since common questions of law and facts are involved in all these appeals they are being disposed of by this consolidated judgment. ?. The facts giving rise to these appeals filed under section 21 of the Sindh Rented Premises Ordinance, 1979, are that the respondent is the owner/landlord of a commercial complex known as "Dr. Hanif Market" constructed on Plot No.S.D‑9, Block `M', North Nazimabad, Karachi, consisting of' several shop, which are on lease with the above appellants. The case of the respondent is that he was by profession an educationist and had worked in King Saud University, Saudi Arabia in capacity of an Associate Professor, Mechanical Engineering Department, with effect from 28th September. 1907 till February, 1959. In the year 1971! the respondent planned and designed to run a hospital in the name of his wife, namely, "Meliwish Saeeda Hanif Hospital", partly on commercial and partly on charitable basis. He, therefore, purchased the commercial plot bearing No.SD‑9, Block `M' North Nazimabad, Karachi and raised construction thereon which was completed in the year 1975‑

76. He constructed 30 rooms with courtyard, open space and corridor etc., on the ground floor and on the first floor of the said building designed rooms to be used for indoor patients with necessary amenities. The respondent had to leave the country under abnormal conditions and since there was no responsible person. to look after this building he rented out different tenements at different times to various tenants including the appellants with clear understanding that they would vacate the same as and when the necessity may arise. In order to establish the said hospital the respondent returned to Pakistan in the year 1989 and by notices called upon the respective appellants to vacate the said premises for running the hospital as proposed. It was pleaded by the respondent that although he is in possession of the entire first floor and some rooms on the ground floor he could not run the hospital for want of accommodation now in possession of the appellants. The case of the respondent is that he was 61 years old and required the commercial premises in occupation of the respective appellants for his personal use to run a 'hospital on commercial and charitable basis. It is also the case of the respondent that not only he constructed the hospital building but shaped the complexion of his family in such a manner so as to promote the cause of the hospital. He has given the best possible education to his sons, two out of them are qualified doctors and the third one is in the making. His son‑in‑law is also a medical practitioner and is an `eye specialist'. It was for these reasons that the respondent asked the appellants to vacate the respective premises in their occupation and on their refusal to do so he filed separate applications against them under section 14 of the Sindh Rented Premises Ordinance, 1979, seeking their eviction on the aforesaid grounds.

3. All the appellants/tenants resisted their eviction on various grounds. They disputed the age of the respondent by stating that he was not the person categorised to invoke the beneficial provisions of section 14 of the Sindh Rented Premises Ordinance, 1979. According to them the applications for their ejectment filed by the respondent were barred under section 14(2) of the Sindh Rented Premises Ordinance, 1979.

4. The parties went to trial on the following issues:‑ (i) Whether the application under section 14 of the Sindh Rented Premises Ordinance, 1979, is maintainable? (ii) Whether the applicant is aged more than 60 years? (iii) Whether the demised premises is required by the applicant for his personal bona fide use for the purpose of establishing hospital? (iv) What should the order be?

5. The respondent examined himself (P.W.1), Dr. Nadeem Hanif (P.W.2) and Abdul Rehman (P.W.3). The appellants filed their affidavits‑in -evidence in their respective cases. However, Muhammad Ammar Usmani (Appeal No.107 of 1991) was subjected to cross‑examination on his behalf and on behalf of others, how? and why?, nobody knows. On the assessment of evidence available on record the learned Rent Controller decided all the issues against the appellants directing their eviction from the demised premises. These orders dated 24‑1‑1991 are the subject‑matters of all these appeals.

6. The learned counsel who appeared before me in these appeals referred to several points but eventually confined their arguments in the main to the following contentions:‑ (i) That the landlord shall not be entitled to avail the benefit of subsection (1), if he is in occupation of a building owned by him in any locality and since the respondent is admittedly in occupation of the entire first floor and six shops on the ground floor, his applications for ejectment of the appellants under section 14 were barred under subsection (2) of section 14 of the Sindh Rented Premises Ordinance, 1979. (ii) The personal need of the landlord/respondent does not include the need of the building for charitable purpose. (iii) The plot over which the building was constructed not being an `amenity plot' its conversion to a hospital cannot be presumed.

7. Since the decision of the main issue hinges on the interpretation of section 14 of the Sindh Rented Premises Ordinance, 1979, it would be convenient to read subsections (1) and (2) together, which are in the following terms:‑ "

14. Delivery of vacant 12ossession. (1) Notwithstanding anything contained in this Ordinance or any other law for the time being in force, the landlord of a building who is a widow, or a minor whose both parents are dead or a salaried employee due to retire within the next six months or has retired or a person who is due to attain the age of sixty years within the next six months or has attained the age of sixty years, may, by notice in writing, inform the tenant that he or she needs the building for personal use and require him to deliver vacant possession of the bidding within such time as may be specified in the ‑notice, not being earlier than two months from the receipt thereof: Provided that nothing in this subsection shall apply where the landlord has rented out the building after he has retired or attained the age of sixty years fir, as the case may be, has become widow or orphan. (2) The landlord shall not be entitled to avail the benefit of subsection (1) if he is in occupation of a building owned by him in any locality."

8. It is now apparent from the language of subsection (2) that there would be no occasion for a landlord to have recourse to subsection (1) of section 14 of the Sindh Rented Premises Ordinance, 1979, if the landlord is owner in possession of a building in any locality. Section 2(a) of the Sindh Rented Premises Ordinance, 1979, again defines a building in the following words:‑‑ "Building" means any building or part thereof, together with all fittings and fixtures thereon, if any, and includes any garden, garage, outhouse and open space attached or appurtenant thereto." The word `building' was examined in relation to ejectment proceedings under section 14 of the Sindh Rented Premises Ordinance, 1979, by this Court in Mst. Shamsa Khatoon v. Syed Anwar Ali reported in 1984 CLC 2291 and Muhammad Habib v. Muhammad Afzal Farooqui reported in 1986 CLC 905, and it was held that a part of building would be treated as `building' for the purpose of bar under subsection (2) of section 14 of the Sindh Rented Premises Ordinance, 1979.

9. In the case of Ulfat Hameed v. Mst. Birjis Khatoon reported in PLD 1982 Kar. 823 a question of considerable importance was examined in respect of the bar contained in subsection (2) of section 14 of the Sindh Rented Premises Ordinance, 1979 and it was observed:‑ "A plain reading of the above provision of law will show that landlady will be disentitled to apply under section 14 of the Ordinance only if it is shown that he or she is in occupation of another building owned by him in any locality. The learned counsel for the appellant submitted that the word `occupation' used in section 14 is not restricted to physical occupation of the landlord but would also include his constructive possession over a building. The contention of the learned counsel has no substance for even a building in occupation of the tenant against whom the landlord applies for eviction under section 14 will be deemed to be in the constructive possession of the landlord and on the reasoning advanced by the learned counsel the application for eviction could be defeated for that reason. Before an application of the landlord is held to be not maintainable under section 1.4(2) of the Ordinance two facts have to be positively proved by the tenant. Firstly it must lx; shown that the landlord is in actual and physical occupation of another building in any locality of the same type and class for which he has applied for eviction of the tenant and secondly the landlord owned such a building. In the present case the appellant has not been able to show from the record that the respondent was in actual and physical occupation of any other building of that class in locality owned by her."

10. This view was re‑affirmed by the Supreme Court in the case of Abdul Majid v. Mst. Naimun Nisa Begum, reported in PLD 1981 SC 118, wherein it was held: "The learned counsel contended that admittedly the landlady owned and possessed a residential premises in the same locality and therefore, the benefit of a summary eviction under subsection (1) of section 14 was not available to her. The learned counsel went on to argue that the language of subsection (2) is of the widest import and would mean that there would no occasion for a landlord to have recourse to subsection (1) if the landlord is owner in possession of any premises in any locality irrespective of the purpose for which the eviction was sought or the purpose to which the owned premises was in use. To our mind subsection (2) of section 14 cannot be read in isolation from subsection (1) for there has to be a nexus between the personal use for which the eviction is sought, and the premises said to be owned and possessed by the landlord in any locality referred to in subsection (2). The wide meaning sought to be put by the learned counsel to subsection (2) would negate the very intent of the Legislature which is to give the benefit to certain class of persons to obtain summary eviction for personal use only if the other building owned by the landlord was in fact not put to such use or capable of being put to such use for which purpose eviction is sought, the existence of such other building would be irrelevant for the purpose of subsection (1) of section

14. To give an illustration, a landlord may be owner occupant of a godown premises in any locality which premises cannot reasonably be used as residential premises, but if the meaning sought to be given by the learned counsel is accepted, the result will be that such landlord cannot evict a tenant from a residential premises though the same may be required for the personal use of the landlord. The contention, therefore, is without force."

11. Admittedly the respondent is in possession of the entire first floor of the building known as `Dr. Hanif Market', where the disputed premises are situated. There is also no dispute that six shops situated on the ground floor of this building are also in possession of the respondent. The plea of the respondent that the portion of building in his occupation is not sufficient to cater his needs for hospital purposes is, therefore, not tenable in view of the bar contained under subsection (2) of section 14 of the Sindh Rented Premises Ordinance, 1979. Unsuitability of a building is no ground for not applying the above bar. If any authority is needed the case of Bakhsh Elahi v. Qazi Wasif Ali reported in 1985 SCMR 291 may be cited with advantage: At page 301 it was remarked as follows:‑‑ "Unsuitability of another building in the occupation of the landlord would, therefore, be no ground for not applying the bar contained in subsection (2) in the context of the purpose for which the eviction is sought under section 14."

12. A similar question was also considered by my learned brother Saleem Akhtar, J (as he then was) in the case of Muhammad Ali Ahmad Khan v. Messrs Taufiq Engineering Works, reported in 1991 CLC 1051, who was pleased to observe as follows:‑ "The main question for consideration is whether a landlord within the purview of section 14 is entitled to file ejectment application in respect of one or more than one premises at the same time. In my view in cases which fall under section 14 the requirement and need shall be restricted to one premises. If it is extended to more than one premises then it is likely to create serious complications and dishonest claims may be pressed taking benefit of the summary procedure of section

14. In the present case it is an admitted position that respondent is a tenant in respect of three interconnected shops. This is what has been stated in the application. Therefore there are three shops which have been let out to one person. Mr. Sadiq contended that there is only one tenancy. It seems to be one tenancy because three shops have been rented to one person. So far premises arc concerned they arc three, and tenancy is always created in respect of building and premises. Therefore, in my view the order of the Controller is justified in granting ejectment in respect of one shop."

13. Mr. S.Izhar Haider Riwi, learned counsel for the respondent has touchingly pressed upon my attention to the fact that the building is required for the purpose of running a hospital, a cherished desire of the respondent who should not be denied this right merely on account of technicalities. In other words it was contended that logic of words should yield to the logic of realities. Emotion has no place in a judgment which has to be based on facts as presented by the parties in the evidence, oral or documentary and is to be recorded in accordance with the law applicable to the facts of that particular case. The respondent had a remedy under section 15 of the Sindh Rented Premises Ordinance, 1979, which remedy is still available to him.

14. Coming now to the second contention raised on behalf of the appellants about the scope of personal need of the respondent, it may be observed that it has got only academic interest now. This question was, however, considered by this Court in the case of Muhammad Saleem Khan v. Mst. Amtul Laiq, reported in 1989 CLC 513, wherein it was observed:‑‑‑ "The personal need of the landlady is there in addition to the need of her son. Again the expression `personal use' should be given a fair and liberal construction and it must be interpreted to include the use of family members of such a specified person, otherwise a minor orphan cannot be benefited out of this beneficial legislation. It is well‑settled principle that the interpretation of statutes should be beneficial and one which would advance the object of legislation and not one which would lead to its frustration. In determining the meaning of the language employed in any particular passage, it is obvious that the intention which appears to be most in accord with convenience, reason, justice and legal principles, should in all cases of doubtful significance be presumed to be true one."

15. As regards the third question, the learned counsel for the appellants have very little to say. Even otherwise in view of my finding that the ejectment applications filed under section 14 were barred under subsection (2) of section 14 of the Sindh Rented Premises Ordinance, 1979, this contention has become redundant.

16. A point not raised in the memorandum of appeal, which was touched upon during the arguments by learned counsel for the appellants may now be dealt with. It is contended that the learned Rent Controller adopted a novel procedure by permitting Ammar Usmani (F.R.A. No.107 of 1991) to be cross- examined by counsel for respondent in respect of the affidavits‑in‑evidence filed by the remaining appellants. The appellants cannot challenge this procedure which was adopted by them who offered Ammar Usmani (F.RA. No.107 of 1991) to appear on behalf of all for the purpose of cross -examination. In the case of The Deputy Registrar, Cooperative Societies v. Mst. Zulekha Bai and 4 others reported in 1990 CLC 1003, such a procedure was disapproved in the following words:‑‑‑ "A bare reading of subsection (4) would show that the affidavit‑in -evidence produced by a witness will be accepted only if such witness steps into the witness‑box for the purpose of cross‑examination. The affidavit‑in‑evidence produced by a person who did not offer himself for the purpose of cross‑examination, therefore, cannot be made use of. The object of cross‑examination is to displace so far as it is adverse, the effect of examination‑in‑chief; and as such, it is necessary to put the same witness in the witness‑box who has tendered evidence in examination‑in‑chief in whatever form. The delegation of authority to any other person for the purpose of cross‑examination defeats the very object of cross‑examination, which "if properly conducted, is one of the most useful and efficacious means of discovering truth". Therefore, the evidence tendered by the appellant through affidavit‑in- evidence produced by Syed Sirajuddin, Deputy Registrar, Cooperative Societies, Karachi will not be received." However, even if the evidence tendered by the appellants (except Ammar Usmani of F.R.A. No.107 of 1991), through affidavit‑in‑evidence is discarded, the result would remain the same because of the admitted position.

17. Mr. S. Izhar Haider Rizvi, learned counsel for the respondent finding himself on the horns of a dilemma, contended that the applications filed by the respondent may be treated as applications under clause (vii) of subsection (2) of section 15 of the Sindh Rented Premises Ordinance, 1979 and be disposed of on the basis of evidence available on record. The learned counsel for the appellants, have seriously opposed this prayer made through application under section 21(3) of the Sindh Rented Premises Ordinance, 1979, by stating that both the sections, viz. sections 14 and 15 of the Sindh Rented Premises Ordinance, 1979, afford separate causes of action to the landlord. It was further pleaded that want of bona fides is irrelevant in proceedings under section 14, while it is a valid defence in a case under section 15 of the Sindh Rented Premises Ordinance, 1979. It is an established position of law that filing of an application under section 14 would not bar filing of application under section 15 of the Sindh Rented Premises Ordinance, 1979. There is ample authority on this point including that of Supreme Court reported as Salim Ahmad Khan v. Mst. Jamila Latif 1990 SCMR 1117. The conversion of an application from section 14 to section 15 of the Sindh Rented Premises Ordinance, 1979, is, however, not permissible and that too at this belated stage of appear‑ The case of Mst. Tahira Begum v. Zamin Ali Qadri, reported in 1988 MLD 1579 lends support to this view. The case of Shan Illahi v. Mst. Mahmooda Begum, reported in 1984 CLC 931, cited on behalf of respondent is distinguishable. As a necessary coronary to this finding C.MA. No.1525 of 1991 (F.RA. No.83 of 1991), CMA No.1527 of 1991) (F.R.A. No.84 of 1991), C.MA. No.1529 of 1991 and C.M.A. No.215 of 1991) (F.R.A. No.105 of 1991), C.MA. No.1531 of 1991 and C.M.A. No.216 of 1991) (F.RA. No.106 of 1991), C.MA. No.1533 of 1991 and C.M.A. No.217 of 1991 (F.R.A. No. 107 of 1991), C.M.A. No.1535 of 1991 and C.M.A. No.219 of 1991 (F.R.A. No.108 of 1991), C.MA. No.1537 of 1991 and C.M.A. No.220 of 1WI (F.R.A. No.l09 of 1991), C.MA. No.1539 of 1991 and C.MA. No.218 of 1991 (F.RA. No.110 of 1991), C.M.A. No.1541 of 1991 and C.MA. No.221 of 1991 (F.R.A. No.111 of 1991), C.M.A. No.1543 of 1991 and C.M.A. No.222 of 1991 (F.R.A. No.‑112 of 1991), C.MA. No.1545 of 1991 and C.MA. No.22.3 of 1991 (F.RA. No.113 of 1991). C.M.A. No.1547 of 1991 and C.MA. No.224 of 1991 (F.R.A. No. 114 of 1991), C.MA. No.1549 of 1991 and C.MA. No.225 of 1991 (F.R.A. No.115 of 1991), C.M.A. No.1551 of 1991 and C.MA. No.226 of 1991 (F.RA. No. 116 of 1991), C.MA. No.1553 of 1991 (F.RA. No. 121 of 1991), C.MA. No.1555 of 1991 and C.M.A. No.239 of 1991 (F.R.A. No.123 of 1991), C.MA. No.1557 of 1991 and C.MA. No.240 of 1991 (F.R.A. No.124 of 1991), C.MA. No.1558 of 1991 and C.MA. No.241 of 1991 (F.R.A. No.125 of 1991), C.M.A. No.1560 of IWI and C.M.A. No.244 of 1991 (F.R.A. No.128 of 1991), C.M.A. No.1562 of 19`)1 and C.MA. No.304 of 1991 (F.R.A. No.l30 of 1W1), C.M.A. No.1563 of 1991 and C.MA. No.305 of 1991 (F.R.A. No.137 of 1991), C.M.A. No.1564 of 1991 and C.MA. No.284 of 1991) (F.R.A. No.147 of 1991), C.M.A. No.1566 of 1991 and C.M.A. No‑285 of 141`)1 (F.RA. No.l‑l8 of 1991), are dismissed.

18. In the result all the appeals are allowed and the impugned orders are set aside. The parties are, however, left to bear their own costs. The rent deposited in the Nazarat by the appellants be paid to respondent. All the applications made for payment thereof arc granted. H.B.T./H‑310/K Appeals allowed.