1969 PLP 222 (SCMR)

ABDUS SATTAR, J.‑This appeal by special leave is directed against an order of a learned Single Judge of the High Court of West Pakistan at Karachi, summarily dismissing a second appeal arising out of a proceeding for the ejectment of the appellant under section 13 of the West Pakistan Urban Rent Restriction Ordinance. The appellant was a sub‑tenant under one Mirza Muhammad Din in respect of a shop situated in flat No. 4 of Ibrahim Mansion, No. 2 Burness Street, Karachi, Mirza Muhammad Din died on the 2nd of August 1961 and thereafter the respondents herein, who are his heirs and legal representatives applied for the eviction of the appellant on the grounds that he was a defaulter and that the premises were bona fide required by the respondent No. 1 for her own personal use where she wanted to set up a Tea shop for the support of herself and her dependent children. The Rent Controller found that the appellant was not defaulter but the respondent No. 1 bona fide required the shop for her own use and occupation and ordered the appellant's eviction. This finding was confirmed on appeal by the Additional District Judge. The High Court, in second appeal, refused to interfere as in its opinion the points raised in the case were concluded by concurrent findings of fact. Leave to appeal was granted in this case to consider two questions, viz.‑ (1) that where a property is owned by more than one person then the requirement of one of them is not by itself sufficient. It must be the requirement of all and not of any one of them ; (2) that the High Court failed to notice that on the question of bona fide requirement the first appellate Court had accepted an oral statement made at the Bar by the learned counsel for the respondent No. 1 to the effect that her son‑in‑law with whom she wanted to carry on the business had actually been evicted from a shop in the same area where according to the petitioner he already had a similar business. Section 13(3) (a) of the West Pakistan Urban Rent Restriction Ordinance (hereinafter called the Ordinance) provides inter alia :‑ (3) (a) "A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession‑ (i) in the case of residential building, if‑ (a) he requires it in good faith for his own occupation or for the occupation of any of his children ; (b) he is not occupying another residential building, suitable for his needs at the time in the same urban area in which such building is situated ; and (c) he had not vacated such a building without sufficient cause after the commencement of this Ordinance in the said urban area ; (ii) in the case of a non‑residential building or a scheduled building or rented land‑ (a) he requires it in good faith for his own use or for the use of any of his male children ; (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 :" The learned counsel for the appellant contended that the language of clause (a) of section (3)(a)(ii) of the Ordinance clearly points to the conclusion that a female owner of a non residential building cannot claim ejectment of her tenant on the ground of bona fide requirement for her own use. According to the learned counsel this follows from a comparison of the language of clause (a) of section (3)(a)(ii) with clause (a) of section (3)(a)(i). It is pointed out that while in clause (a) of section (3)(a)(i) the words are "of any of his children" in clause (a) of section (3)(a)(ii), the words used are "of any of his male children". The argument appears to be that in respect of a non‑residential building that is to say a building which is being used solely for the purpose of business or trade; no order of ejectment can be passed for bona fide requirement of the owner if the owner happens to be a female. We are unable to accept the contention of the learned counsel that the Legislature intended, a total exclusion of female owners from claiming possession of a' non‑residential buildings. It is true that ejectment from such a A building cannot be claimed on the ground of requirement of a female child of the owner but from that it does not follow that if the owner is a female she cannot claim ejectment on the ground that she herself wants to set up a business. We cannot give to the language of the section the extended meaning contended for by the learned counsel for the appellant. The respondents in their application under section 13 of the Ordinance clearly alleged that the premises in question were required for setting up a tea shop for the support of respondent No. 1 and her dependant children as Mirza Muhammad Din, .the husband of respondent No. 1 had not left them with sufficient independent means. The evidence given in this regard found favour with the Rent Controller who observed :‑ "The applicant No. l is the widow with no source of income and has a large family to support and therefore requires some business as the source of income for the family." In the appeal preferred against the decision of the Rent Controller the learned Additional District Judge affirmed the above finding. The order of ejectment, therefore, was not passed for the requirement of respondent No. 1 alone. The learned counsel for the appellant then contended that as respondent No. 1 admittedly had some interest in a tea shop which was run by her son‑in‑law and the tea shop is still being run by him and there was no basis for the statement made by the learned counsel for the respondent that the son‑in‑law had actually been evicted from the said shop, the prayer for eject ment should have been rejected in view of clause (b) of section (3)(a)(ii). On being questioned the learned counsel for the respondent admitted that the said shop is still in occupation of the son‑in‑law of respondent No.

1. Nevertheless we do not think that the application for ejectment can fail on that ground as the interest of the widow in the said shop is not enough to disentitle the respondents to claim ejectment on the ground of bona fide requirement of the shop in dispute. The contentions raised by the learned counsel for the appellant have, no substance. The appeal, therefore, is dismissed with costs. Appeal dismissed.