2000 PLP 1858 (MLD)

After recording evidence of the parties the learned Rent Controller dismissed the petition vide his judgment, dated 22‑6‑1999. The respondent filed an appeal before the learned District Judge, Attock who accepted it vide his judgment, dated 16‑11‑1999 and ordered the appellant's eviction from the disputed shop. The appellant was allowed time till 28‑2‑2000 to vacate the shop and hand over its possession to the landlord.

4. The appellant's learned counsel strenuously urged that the bona fide personal need of the landlord was not made out from the evidence on the record; that the landlord himself is residing abroad 'and did not enter the witness‑box and on his behalf his father/general attorney appeared as a witness; that under the provisions of section 13(3) of the .Punjab Rent Restriction Ordinance, 1959 the landlord can get the business premises vacated for his own need or that of his male children; that the need of father and real brother is not contemplated under the law; that the respondent's evidence also shows that the shop was sought to be evicted for the business of father and brother of the landlord; that the judgments relied upon by the Appellate Court are distinguishable; that in Mamood‑ul‑Hassan's case (1980 CLC 829) the landlord had himself appeared and deposed that he needed the shop for his own business and that at the spot business would be run by his employee but the earnings will belong to him.

5. On the other hand, the respondent's learned counsel urged that the personal need of the landlord inherent included the needs of his dependants who or any one of them could run the business in the disputed shop to lesson or share the financial burden of the landlord. In this connection, he relies on the following judgments:‑‑ (i) "Abdul Salam Akhtar v. Dr. Najam Pervez" (1976 SCMR 52). (ii) "M.A. Khan v. Mst. Masooda Shaheen" (1981 CLC 1358). (iii) "Saeed Ahmad v. Tariq Nazir Butt and another" (1987 SCMR 220). (iv) "Syed Abdul Rauf v. Abdul Sattar" (1998 SCMR 2525). (v) "Mst. Amina Bibi v. Muhammad Khalid Ehsan" (1998 CLC 1825). He further urged that it was established on the record that the respondent's father and brother were dependent on the landlord who used to send money for their day‑to‑day expenses from abroad, hence the Appellate Court had rightly accepted the respondent/landlord's appeal and ordered the appellant's eviction from the disputed shop.

6. There is considerable force in the arguments raised by the respondent's learned counsel. By virtue of the provisions of section 13(3)(a)(ii) of the Punjab Rent Restriction Ordinance, 1959 a landlord can seek eviction of a tenant from a non‑residential building or a scheduled building or rented land if, "he requires it in good faith for his own use or for the use of any of his male children". For this purpose he is required to fulfil the following statutory conditions embodied in section 13(3)(a)(ii) (b) and (c) of the Ordinance:‑‑ "(b) he or his said child is not occupying in the same urban area in which such building is situated for the purpose of his business any other such building or rented land, as the case may be, suitable for his needs at the time; and (c) he has not vacated such a building or rented land without sufficient cause after the commencement of this Ordinance, in the said urban area:" It is not the appellant's case that the landlord or his children are occupying any other building in the same urban area which is suitable for their needs or that they had vacated any building without sufficient cause after commencement of the Ordinance. The main thrust of the appellant's argument is that legally the personal need of the brother and father is beyond the ambit of the provisions of section 13(3)(a)(ii) of the Ordinance. It is correct that a landlord cannot set up the personal need of his father, brother or any, other near relatives for seeking eviction of a rent unless the said relatives are his dependents. Under the law the personal need of the landlord inherently includes his needs for maintaining and supporting his dependents. So far as the children are concerned, eviction of a tenant can be sought for their needs even if they are not dependents of the landlord. In the present case the landlord instituted the petition through his general attorney and clearly averred in paras. 2 and 2‑A that he had purchased the property for his personal need; that he intended to run hotel business through his father and brother who being members of joint family were his dependents and he used to send money from abroad for their day‑to‑day expenses. He made it clear that he will make investment and the business though run by his brother will personally belong to him. In order to support his claim he produced A.W.l Muhammad Rafiq, A.W.2 Muhammad Sajjad (brother) and A.W.3 Ghulam Khan (father as well as general attorney). On the other hand, the appellant made a statement as R.W.1 to rebut the respondent's claim. A.W.1 stated that the father and brother, of the respondent/landlord had no source of income and that the respondent used to send money from abroad for their expenses; that in this background "they" wanted to run their business which will be financed by the respondent/landlord. The word "they" used by this witness was not limited to the brother and father but also covered the landlord, hence it cannot be said that this witness had deposed to the personal need of the brother and father alone. In cross‑examination no specific question was put to this witness to challenge his statement that the respondent used to send money for their brother and father to support them. Hence this part of his statement will be deemed to have been admitted. A.W.2 Muhammad Sajjad, real brother of the respondent, clearly stated that he as well as his parents had no source of income and were dependent, on the respondent who was living abroad; that "they" wanted to run hotel business to earn their livelihood. He further stated that: In cross‑examination this witness was questioned about the number of family members and it was suggested that the respondent landlord did not need the shop for his own use and that the ejectment petition was filed to secure enhancement of rent. His statement that he as, well as his parents were dependent on the respondent who used to send them money from abroad was not challenged in cross‑examination and would be deemed to have been admitted. A.W.3 Ghulam Khan is father and general attorney of the respondent. He also stated that he as well as his other children were living jointly; that his son/respondent sends them money from abroad; that they needed the shops for running hotel business which will be financed by the respondent. In cross‑examination it was suggested to him that he as well as his other sons were not dependent on the respondent but he denied the suggestion. As mentioned above no such suggestion was made either to A.W.1 or A.W.2 and their statements to the effect that the respondent used to send money for their brother and father who were entirely dependent on him would be deemed to have been admitted. Therefore, the suggestion made to A.W.3 that his brother and father were not dependent on him is inconsequential. The statement made by the appellant as R.W.1 that Muhammad Sajjad and Iftikhar (brothers of the landlord) were not dependent on him cannot be given much weight. In cross‑examination R. W.1 admitted that Muhammad Tufail, respondent had himself made investment for purchasing the shops. He expressed ignorance whether the respondent used to send money from abroad for maintaining his father and brothers. He also admitted that in the notice sent to him by the respondent/landlord he had demanded the shop for his own business and that of his brothers.

7. From the totality of the evidence on the record it can be safely gathered that the respondent's father and brother Muhammad Sajjad are his dependents who have no source of income; that the respondent sends money for them from abroad for their livelihood; that the shops were purchased with the funds provided by the respondent/landlord and hotel business will also be financed by the respondent though run at the spot by his father and brother in this way the respondent will be relieved of his obligation of sending money from abroad for his father and brother and his personal need to support his dependent would be satisfied.

8. The view that the need of the dependent is essentially one of the landlord finds support from the judgments relied upon by the respondent's learned counsel. In the case of Abdul Salam Akhtar the property was got vacated for the need of a disabled brother. In this case, the Hon'ble Supreme Court was pleased to hold that the personal needs of the landlord would include the need of those dependent upon‑him. In the case of M.A. Khan cite landlord needs the premises to accommodate old parents‑in‑law. It was held as under: "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." Obviously the old parents‑in‑law were to live with the landlady like her dependents, hence it was treated as her own bona fide personal need in the case of Sued Ahead the Hon'ble Supreme Court was ply to hold as under:‑ "If the landlord during such period had employed himself in a gainful lion such as going abroad for earnings, such fact cannot negate assertion of bona fides on his pact. So far as the question that respondent No.1 was not at, independent person is concerned it was urged that interests of the landlord could be looked after by his agent and if the father of respondent No. l was looking after his interests while he was away it did not imply that his claim for personal use was false.' In the present case starting of hotel business for maintaining the respondent's dependents was obviously in his own interest as in that eventuality he would be relieved of his burden to support them from his earnings abroad. In the case of Syed Abdul Rauf it was held that in matters pertaining to ejectment of a tenant on the ground of bona fide personal use of premises by a landlord, every case must be decided keeping in view its peculiar facts and circumstances and no hard and fast rule can be laid down. It was further held as under:‑‑ "In our opinion, it will not be in the interest of justice to lay down that in every case where a party does not appear or arranges his appearance through attorney, an adverse inference should be drawn against him. Such a rule if laid down, would result into great hardship in cases where the parties, for instance, reside abroad, who will have to sue and defend themselves through their attorney." In this precedent case the landlord's real brother had appeared as his attorney to depose to his personal bona fide requirement of the premises. Therefore, it was held that non‑appearance of the landlord was not fatal to his case. In the case of Mst. Amina Bibi it was held that it would not be a requirement of law that the landlady (or a landlord as the case may be) should personally appear in the Court and depose about her personal requirement and that such a statement could be made by her attorney.

9. I respectfully follow the views expressed in the above‑quoted judgments.

10. For the foregoing discussion, I hold that the Appellate Court had rightly reversed the order passed by the learned Rent Controller, allowed the appeal filed by the respondent/landlord and ordered the appellant's eviction from the disputed shop. I do not find any merit in this appeal which is dismissed, leaving the parties to bear their own costs. Q.M.H./M.A.K./M‑212/L Appeal dismissed.