1985 PLP 241 (SCMR)

"I accept the submission which Mr. Megarry put before us, that a landlord of a rent restricted house, who applies for possession has a number of obstacles placed in his way by the Acts which he has to overcome if he is to obtain an order. But if, on the evidence and considering reasonableness and whatever the various matters are as proved at the hearing, the county Court Judge makes an order for possession, then that is an order which devolves to his personal representatives or to his heirs, or beneficiaries according to the circumstances. It is not an order which ceases on his death. It may be said there is a certain want of logic about that, and there is, of course, force in the consideration which moved the county Court Judge to come to an opposite conclusion. There must however be finality at some stage. It would never have been suggested that if a man who had obtained an order such as in this case, having got possession, died perhaps before he had time to move in, that the tenant could come and say the status quo ought to be re-established. Other instances could be thought of. I think the conclusion to which I have come is reinforced by the difficulties of applying to some of the other circumstances in other cases which might arise the principle which the Judge based himself upon." One of the concurring Judges also supported the conclusion by observing as follows:- "In my view, therefore, one should adhere to the principle that the conditions required to enable an order for possession to be made should be judged at the date when the case is heard and judgment is delivered, and that the validity of the order is not to be affected by any subsequent event." These general principles of law, viz. the vesting of the property rights, i.e. of the estate of the deceased in the legal heirs, and the need to give certainty and finality to adjudications by reference to the date of institution of the proceedings and its hearing are controlled by yet another principle,- that in appropriate cases an appellate Court may mould the relief according to the changed or altered circumstances, on facts or law. This last overriding principle finds statutory recognition in sections 107 and 151 , Order VII, rule 7 Order XLI, rule 27 of Civil Procedure Code, section 15 of Urban Rent Restriction Ordinance, 1959 and section 21 of Sind Rented Restriction Ordinance, 1979. It finds` recognition as a principle of equity in the words that follow:- "A decree in equity generally operates on the parties and subject-matter as they stood at the commencement of the suit, but it does not only to subserve the ends of justice, and where a radical change in the ultimate rights of the parties has been brought about by the passing of time and knowledge of this change is judicially before the Court or is brought in by appropriate pleading, its decree is addressed to the rights existing, not at the commencement, but at the time of determination of the suit or date of the decree provided there was sufficient foundation for the suit when it was commenced, and such relief is pertinent to that sought by the bill, and provided further it would be equitable and just to recognize the intervening rights" 30 C J S

990. This Court enjoys such a power on the strength of Article 1871 of the Constitution read with Order XXXIII, rules 5 and 6 of the Supreme Court Rules, 1980. There are two illustrative cases on this point decided by this Court, one in which the relief was granted, the other in which the relief was refused, solely on the basis of events' subsequent to the date of institution or hearing. In the case of Mst. Amina Begum ejectment of the tenant of a property transferred under Displaced Persons (Compensation & Rehabilitation) Act was obtained within the period of statutory protection of six years on the sole ground that the property was required for reconstruction. It was admitted on all hands that this ground was not at all available for eviction before the expiry of six years and the action was prematurely instituted so far as this ground was concerned. This Court held:- "If the case were to commence afresh after 11 years of this litigation by the 28th of February, 1977 when the impugned order was passed by the High Court, the result on account of the accepted position on the merits of this issue would not be very different." and concluded by holding that-- "in our considered opinion a discretion is vested in this behalf in the Courts to be judicially exercised in proper cases in order to avoid multiplicity of proceedings, to shorten litigation, and to do complete justice between the parties and mould the relief according to the altered circumstances in the larger interest of justice." The relief was granted, the ejectment order was maintained not on the basis that any such right existed when the proceedings were instituted or the order of eviction was passed but on the ground that the legal defect in the order stood removed subsequently simply by lapse of- time. In the case of Dr. Miss I. Ali Muhammad the landlady was already running a clinic but wanted another shop also for running a clinic. The Rent Controller passed the order of ejectment. The first appellate Court revered the order holding the bona fide personal need was not established. The High Court affirmed this. After the judgment of the High Court but before the filing of petition for leave to appeal the landlady created a trust of her properties including this shop. The consequential change in her status and its effect on the proceedings came up for consideration. It was held:- "It is thus clear that the grounds for ejectment in this case, namely, the bona fide requirement of the disputed shop for the landlord's own use as provided in section 13(3) (9)(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. A survey of decisions of this Court on the specific question involved is necessary to ascertain how these principles have influenced the decisions. The landlord's need for residential premises has always been considered to be the need of the family. Hence his death pending proceedings makes no difference. Those cases will not therefore be relevant and are altogether excluded from consideration. Abdul Hayee v. Mst. Riaz Begum and 9 others 1979 S C M R

372. Muhammad Rafique was the owner and occupying a godown. He had let out a passage (4-1/2' x 3-1/2') leading to it to Abdul Hayee. On 26-5-1976 he filed an ejectment application seeking eviction of Abdul Hayee on the ground that he had failed to pay the rent and that the premises were required for the use of his son without particularizing him. Before the evidence could be recorded, he died. His widow, four adult sons, two adult and two minor daughters were brought on record. Amended petition was filed. The ground of personal need as set 'out by Muhammad Rafiq was allowed to stand. The Rent Controller found default proved. As regards, personal need the Rent Controller held as follows:- "It is contended by the learned counsel for the respondent that after the death of the original petitioner Muhammad Waheed for whom the disputed property was allegedly required has become one of the co-owners of the shop in which his father Muhammad Rafique deceased alongwith two sons were carrying on their business, therefore, he cannot have the disputed shop vacated on the ground of personal need but in my opinion this contention is not forceful because Muhammad Waheed the son of the deceased may have become one of the co-owners of the other said shop but no evidence has been produced by the respondents to prove that the said Muhammad Waheed has come into physical possession of the same after the death of his father. At the most his possession being the legal heirs of the deceased but not physical possession, therefore, he can claim the possession of the disputed property for his bona fide personal need." On appeal the Additional District Judge reversed the finding on default but maintained the eviction affirming the reasons given by the Rent -Controller. On second appeal the High Court disposed of this objection as follows: - "The next contention raised by the learned counsel for the appellant was that the plea of requirement of the shop for the personal bona fide use of the son of the appellant was not available after the death of the landlord. Elaborating his contention he submitted that since all the respondents had become landlords on account of the death of the original landlord, requirement of' one of them cannot be taken as requirement of all the landlords. This plea of the learned counsel is obviously without any merit. The word 'landlord' in the context used in the said section will be inclusive of one of them. The plea otherwise also is not available in that the other joint landlords concur in the prayer that the shop in dispute was needed by one of them and as such this being their personal arrangement, the tenant has no locus standi to raise an objection in this regard. The interpretation which the learned counsel wants me to put on section 13(3)(ii) would lead to anamolous situations, to which I would not like to be a party." This Court refused leave to appeal after noticing the legal grounds advanced and answering them as hereunder:- "The learned counsel contended before us that: (1) the Courts below, including the High Court, were in error to hold that the respondents needed the shop in dispute, bona fide, reasonably and in good faith, and (2) that after the death of Muhammad Rafique, the ejectment appli cation filed by him against the petitioner lost efficacy inasmuch as his son Muhammad Waheed, for the use of whom the shop in dispute was sought to be vacated, would be deemed to have come into the possession of the shop of his late father alongwith his other brothers. We are afraid, there is no force in either of the contentions. The concurrent finding of the Courts below, including the High Court, is that the shop, in dispute, was required bona fide, reasonably and in good faith for the use of Muhammad Waheed, who, admittedly, was not working in the shop of his late father. In these circumstances the said finding, which is based an evidence, cannot be questioned in this Court as the same is necessarily a finding of fact. As regards the other contention urged by the learned counsel, the learned Judge in the High Court took the view that: "This plea of the learned counsel is obviously without any merit. The word 'landlord' in the context used in the said section will be inclusive of one of them. The plea otherwise also is not available in that the other joint landlords concur in the prayer that the shop in dispute was needed by one of them and as such this being their personal arrangement, the tenant has no locus standi to raise an objection in this regard. The interpretation which the learned counsel Wants me to put on section 13(3) (ii) would lead to anamolous situations, to which I would not like to be a party." With this view of the learned Judge we find ourselves in agreement. The admitted position is which even finds support from the title of the petition itself, that late Muhammad Rafique had a large family consisting .of his widow, 3 grown-up sons, 2 grown up daughters and 4 minor children. Out of the 3 grown-up sons two were working with him in his shop whereas his son Muhammad Waheed was unemployed, and it was for his benefit that he had sought the ejectment of the petitioner from the shop in dispute. In these circumstances, it cannot be said that the view taken by the High Court is illegal or improper."

2. Dr. Major Abdul Ahad Khan v. Soofi Muhammad Yasin and Brothers P L D 1984 S C

200. The landlord was a doctor running a clinic in the whole building except two shops on ground floor. He sought eviction of the tenant from one of these shops on the ground that he needed it for himself as well as for his son and two daughters who were all doctors. The Rent Controller dismissed his application on the ground that his needs were not "pressing". The District Judge on first appeal reversed this finding and ordered ejectment. The High Court accepted the appeal of the tenant and restored the order of the Rent Controller. Pending appeal in the Supreme Court Dr. Abdul Ahad Khan died. The son for whom the premises were required not only himself became the co-owner of the entire property including the clinic, the need of the original landlord who instituted the proceedings disappeared with his death. This Court examined in detail the merits of the claim as originally preferred and adjudicated, and concluded as follows:- "On an overall consideration of the evidence it appears to me that the landlord had sufficiently established the requirement of the premises for personal use. Nothing has been pointed out to us from the record to indicate that the landlord or his children had any ulterior motive in asking for the eviction of the respondents except a vague allegation orally made by the witness of the respondents that the possession was being obtained for letting out the premises on Pugree. One aspect of the matter that seems to have escaped the notice of the learned Single Judge was that the desire of the owner of a clinic for the time being to convert it into a full-fledged hospital by providing X-ray and Pathological sections is a business requirement connected with the efficiency and operation of the hospital establishment. The death of the landlord does not by itself, therefore, obliterate the basis of such requirement unless the plans for such improvement are abandoned by the successors of the deceased for which there is nothing on the record. On the contrary the heirs of the deceased, as already noted, are pressing for the eviction of the respondents on the same grounds after the death of the original landlord. In view of all these circum stances I am of the firm view that there was no misreading of the evidence or exclusion of material evidence from consideration on the part of the first appellate Court so as to call for inter ference with the finding of fact recorded by him, specially when there was no question of law raised in the Second Appeal." This Court thereafter restored the order of the Additional District Judge

3. Abdul Rahman v. Fazal Karim 1980 S C M R

758. Fazal Karim the landlord applied for the eviction of his tenant from a shop on the ground of default, and his personal need to go in tailoring business. The Rent Controller refused him the order of ejectment. The District Judge on appeal reversed the order on the ground of personal need only. While tenant's second appeal was pending in the High Court Fazal Karim died. On his death both the parties filed applications seeking permission to lead additional evidence on the ground of personal need of the legal representative of Fazal Karim. The were not allowed to do so and the tenant's appeal was dismissed by the High Court. The tenant's appeal to this Court was allowed mainly on the concession of the opposing counsel recorded in the following words:- "Learned counsel informed us that he also could not defend the impugned judgment and that both parties were entitled to produce evidence in the new situation created by Fazal Karim's death." The case was thereafter remanded to the High Court from where it went down to the Rent Controller and started more or less as a fresh case concerning the need of the two sons of Fazal Karim which were examined independently of the estate of Fazal Karim. 1982 C L C 2641.

4. Messrs Ally Brothers & Co. v. Additional District Judge Rawalpindi 1984 S C M R 1212. Fahmida Khanum sought the ejectment of the tenant from the shop and obtained it. The appeal followed by a constitutional petition filed by the tenant failed. Fahmida Khanum expired thereafter. A fresh constitutional petition was filed on the ground that with the demise of Fahmida Khanum her cause of action had also died with her as the need was for her own personal benefit. The High Court dismissed it on the ground that the proceedings had concluded during her lifetime and the right to "repossess her property having come to vest in her lifetime, will pass on to her heirs on her demise". This view was affirmed and leave to appeal was refused by this Court on 5th of February, 1984.

5. Muhammad Ismail v. Mst. Dilshad Kausar C.P. K-76 of 1981. Nasirullah, the landlord sought ejectment of the tenant from a shop on the ground that he wanted to do business personally to support his large family. Before the issues were framed the landlord died and was succeeded by his widow, four sons and two daughters. They continued the proceedings on the same plea. The tenant also kept intact his earlier defence. It appears that the two sons were in employment. The widow led the evidence to show that she wanted to run the business herself. The Rent Controller held:- "I am convinced that there are reasonable requirements existing to justify that her demand is bona fide:" and ordered the ejectment of the tenant. The learned Additional District Judge maintained the order observing as follows:- "The need of the original landlord through his widow still continues in the circumstances of the case, therefore, that need has not vanished and ended with the death of original landlord." The High Court upheld this order by holding as follows:- "I am of the view that the pleading in the original and amended application had mentioned that the business was for the support of the large family and, therefore, Mst. Dilshad Kausar could prove her own need after the death of her husband as she was in the position of landlady. The objection of Mr.Ahmed Ali Memon is, therefore, of a highly technical in nature and I would be making a fettish of technicality if I allowed the same. In any case the pleading and the evidence are not inconsistent." The tenant was refused leave to appeal by this Court observing as follows:- "in seeking leave to appeal Mr.Akhtar Mahmud raised the same plea as was urged before the High Court and in support of it he relied on Muhammad Ashraf v. Mst. Azizan and 4 others PLD 1981 Leh.

201. However, we do not find any substance in this plea for another reason, namely, that the respondent in his amended written statement did not plead that the ejectment application had become infructuous as the personal need of the husband did not survive; and if the respondent had taken this objection, Mst. Dilshad Kausar would have certainly taken steps to remove the technical objection. Therefore at this stage we agree with the High Court that on such a technicality the result of the case should not rest. Further the respondent himself participated in the proceedings and cross-examined Mst. Dilshad Kausar at great length to show that her requirement was not genuine. On this view of the matter he could not be said to have been taken by surprise as he had become aware of the plea of the need of Mst. Dilshad Kausar for her own personal use. This awareness excludes prejudice." There are a few cases decided by the High Courts which too deserve notice. In the case of Muhammad Ashraf v. Mst. Azizan, Muhammad Ali, the landlord had sought eviction of the tenant from a shop and obtained it on the ground of his personal need. While tenant's appeal before District Judge was pending Muhammad Ali died. The tenant pleaded that the order of ejectment could not be availed of by his legal representatives. The District Judge repelled this holding that his son was in a position to use it. The High Court, however, upheld this objection on the following two grounds:- "It may not be possible for a landlord to set up a business for his son in the rented non-residential building after the eviction of the tenant if the order of ejectment was passed against the tenant on the ground that the said building was required by the landlord in good faith for his own use as he is entitled to get the possession of the rented premises for the use of his male children and since he had not obtained the possession of the rented premises for the use of his son, he cannot transfer the possession of the rented premises to his son for his use. An order of ejectment passed against a tenant of a non-residential building, on the ground that the rented premises were required in good faith by the landlord for his own use, would not enure to the benefit of the legal representatives of the landlord after his death for another reason also inasmuch as it would not be possible to meet the requirement of subsection (4) of section 13 of the Ordinance which lays down that the landlord must occupy the rented premises within one month of the date of obtaining possession because otherwise the tenant who is evicted, may apply to the Controller for an order of restoration of the possession of the rented premises. An order of ejectment passed against a tenant of a residential building can be executed by the legal representatives, even after the death of the landlord, though the rented premises were got vacated by him for his own occupation because the rented premises could also be occupied by his family in view of the interpretation of the expression "for his own occupation" as noticed in the cases referred to above. The requirement of subsection (4) of section 13 of the Ordinance would also be met if in execution of an order of ejectment, possession of the rented premises is obtained by the legal representatives of the deceased landlord for the afore mentioned reason." In the case of Irshad Ali v. Muhammad Umar P L D 1981 Kar. 273 Mst. Zulekha, the landlady applied for the eviction of the tenant of a shop inter alia on the ground of her personal need. She failed before the Rent Controller and in first appeal before the District Judge. Her second appeal was pending in the High Court when she died. After re-hearing of the appeal on the point whether her son (particularly) and two daughters who substituted her could avail of this ground the Court held:- "I accordingly hold that upon the death of the deceased the appeal in so far as it relates to the ground of personal and bona fide requirement of the deceased, cannot be maintained by the present appellant." The executability of the order of the eviction, or compliance with section 13(4) of the Ordinance does not play any part in determi nation of the issue involved in this appeal. It is not the contention of any of the parties that a beneficiary under an ejectment order has to survive till one month after the date of obtaining possession, as prescribed therein. Such a contention stands rejected in Ally Brothers case referred to earlier. The upshot of the above discussion is as follows:- (i) the need of the landlord under section 13(3)(a)(ii) of the Ordinance of a non-residential premises is personal to himself or his male child, or to both, as the case may be. It implies therefore, that if the death of the relevant person takes place during the pendency of the proceedings before an order of eviction is made, the proceedings abate and do not survive his death. (ii) once an order of eviction of the tenant is made under section 13(3)(a)(ii) of the Ordinance, it becomes, on the death of the landlord beneficiary of the order, a part of his heritable estate and the legal representatives can defend the order and claim the benefits arising there under subject to all the limitations and, exceptions attaching to such an order. (iii) The ordinary powers of a Court of appeal is to scrutinise the judgment or order under appeal by reference to facts, circum stances, and record as before the Authority or Court passing the impugned order, supplemented by such further inquiry as may have been- undertaken under section 15(6) of the West Pakistan Urban Rent Restriction Ordinance or under section 21(3) of the Sind Rented Premises Ordinance, 1979 and administer the law of the land at the date when the appellate Court is administering it. (iv) Exceptionally, in its discretion, the appellate Court, may take note of and give effect to admitted or proved subsequent events in order to avoid multiplicity of proceedings, to shorten litigation and to do complete justice between the parties and mould the relief according to the altered circumstances in the larger interest of justice." In the appeal before us the exclusive beneficiary of the order is alive, has himself become the landlord and is in a position to avail of the order. Strictly speaking the case is not of the death of the beneficiary and survival of the cause, but of a material alteration of facts and circumstances which according to the learned counsel for the appellant make the order under appeal, not a just and proper order. The change or alteration pleaded is the death of his father thereby making Salim himself a co-sharer alongwith his brother and four sisters in the business run earlier in the other shop by his father. He will not on account of it be in need of any more accommodation. In other words the appellant is inviting the exercise of an exceptional power of this Court, a discretionary power to take note of the altered facts and to give effect to, it in a manner to, grant relief to the appellant as against the respondent. The legal question arising in the appeal has been answered. Now the appeal be itself set down for hearing so far as the merits of the order under appeal is concerned and the extent to which the altered circumstances, require remoulding of the relief. M. Z. M. Order accordingly.