P L D 1985 Supreme Court 97 (PLP)

MUHAMMAD AFZAL ZULLAH, J.-This appeal through special leave of this Court is directed against the judgment dated 20-12-1973 of the erstwhile High Court of Sind and Baluchistan ; whereby a Constitutional Petition arising out of an income-tax matter, filed by the respondent Company, was allowed with the following declaration : "It is not liable to be assessed to income-tax or to pay any income-tax levied and demanded for any year, or period, and that the assessments made by the Income-tax Officer (Companies Circle III), Karachi were without jurisdiction and lawful authority, and, with this declaration, an injunction was given to restrain the respondents from taking any action or step to recover from the petitioner any income-tax levied or assessed for any year or period." Leave to appeal was granted to examine : whether the profits of the Sind Industrial Trading Estate Limited are to be regarded as income of the Provincial Government and thus exempt from tax under the provision of the A Constitution. The respondent-Company, had itself filed income-tax returns and were, assessed from assessment year 1948-49 upto 1952-53 on figures of net loss and for 1953-54 ors profit. Similarly for the pr6fits for assessment year 1954-55 the Income-tax Officer had made provisional assessment under section 23-B of the Income-tax Act, 1922 on 20-9-1957. The demand was so heavy that the respondent was advised to seek legal remedies ; because, as asserted by the respondent then, it might "have destroyed the whole project of development of Industries entrusted to it by the Provincial Government." Apart from the normal remedies pursued but not to their normal end, civil suit was filed which ended in rejection under Order VII, rule 11, C. P. C. an appeal against which was filed but not pursued. Petitions were also made to Central Board of Revenue, the present appellant, the Central Finance Ministry and President but all were rejected by 1968 when the . assessment was challenged through the Constitutional petition. Although other pleas, though in alternative, regarding the respondent Company being a "Local Authority" or carrying on work of `public utility' for purpose of section 4(3) of the Income-tax Act were raised before the High Court, the relief was granted only on the plea that the income of the Company was of the Provincial Government, therefore it was exempt from income-tax under various Constitutional provisions. The appellant's position in this behalf was that the respondent being a Company and juristic person under the Companies Act, 1913, its Memorandum and Articles of Association made it the independent "person" as defined in the Income-tax Act whereunder "every person" was chargeable to income-tax. In order to appreciate the controversy it is necessary to re-state the facts and circumstances as to how and with what peculiarities the respondent Company came into being, as mentioned in the High Court judgment ; which have not been disputed before us. They are as follows :- This corporation is a company registered under the Companies Act, 1913, and is limited by guarantee. The Company was incorporated on 29th November 1947 under a resolution of the Government of Sind dated 16th May 1947, with a view to promote industrial development of the province of Sind, and, for this purpose, to establish industrial and trading estates at Karachi, Hyderabad and Sukkur. The resolution contained the following guidelines in accordance with which this company was required to work, that is to say, (i) the Company would acquire land for the development of trading and industrial estates, to develop such lands by construction of roads and drainage, and by provision of light and to construct, whenever feasible, premises for purposes of renting them out to traders and industrialists ; (ii) the Company would have power to levy rent for the land and premises let out by it and water and electricity charges to enable it to defray its expenses ; (iii) the Company would not issue any shares to the public and would not make any profits or declare any dividends on its shares ; (iv) the Company would be financed by the Government of Sind, but would also be empowered to issue debentures to raise additional capital, (v) the Board of Directors of the Company would consist of (a) Secretaries to the Government of Sind in the Ministry of Finance, Agriculture and Industries, and the Director of Industries, and (b) three representatives of the tenants of the Estate to be elected by them on the one firm one vote principle ; (vi) the Managing Director would be appointed by the Government of Sind ; (vii) any resolution of the Board of Directors may be suspended pending 'a reference to the Government of Sind at the instance of the Managing Director or any of the ex officio Directors mentioned above, and, on such reference being made, the Government of Sind would be empowered to decide that the resolution shall have no effect or shall have effect with such modifications as may be approved but then it being is connected with immovable property was held to pass with other heritable interest in the property. The case of Muhammad Azim v. Muhammad Nawaz (P L D 1961 (W. P.) Lah. 137) is illustrative on the point. In that case the tenant had been proceeded against by the landlord, inter alia, on the ground of having committed default in the payment of rent. After he appeared in the proceedings before the Rent Controller there was also allegedly a default in complying that the orders of the Rent Controller passed under section 13, subsection (6) of the Ordinance. Before the matter could be disposed of by the Rent Controller the tenant died and his legal representatives were brought on record. After holding that on the strength of section 141, C. P C. the procedural provisions contained in Order XXII applied to the proceedings before the Rent Controller it was further held - "The default was made by Fazal Haq and though his heirs may be liable for the rent that may be found due from Fazal Haq to the extent of the property inherited by them from him, it is clear that the default committed by Fazal Haq could not be deemed to be the default of his legal representatives, who, I may mention, would be. deemed to be tenants by reason of the definition of that expression given in clause (1) of section 2 of the West Pakistan Urban Rent Restriction Ordinance, 1959. It is hardly open to question that if the proceedings for ejectment had started after the death of Fazal Haq, his default could not have been availed of against his legal representatives who would have become tenants in his place. The legal representatives of Fazal Haq have committed no default and, therefore, they cannot be ejected on the ground that they had committed a default which entailed ejectment and the defaults of the original respondent, namely, Fazal Haq, cannot, in my view, be used against his legal representatives." This matter was taken up by the landlord in Letters Patent Appeal and the Letters Patent Bench while accepting the appeal against the view taken by the Single Judge held "The death of the original tenant cannot obliterate the effect of the default which has conferred an advantage on the landlord. The default was not personal, for it was committed in respect of property, and since the children succeed to the tenancy, they succeed to the default also. We cannot accept the argument that a defaulter's death can efface the fact of the default." ?The matter was brought by the tenant to the Supreme Court P- L D 1966 S C

182. After distinguishing the case on the basis of which leave to appeal was granted, namely, Tickner v. Clifton ((1929) 1 K B 207) the Court held as follows: "It was not a case of the defects being noticed and made a ground for? eviction upon or after the death of the tenant. The tenure which? Sayyed Fazal-i-Haq enjoyed from the time when the proceedings were? started against him was subject to the result of those proceedings and? his legal representatives, who, under the law, were entitled to continue? in occupation, held that tenancy subject to this defect. I find myself? in complete agreement with the view expressed by the Division? Bench on this point. Although the legal representatives could claim? to be statutory tenants upon the death of Syed Fazal-i-Haq, yet their? tenancy was not free from embarrassment, for litigation had already been? commenced on the basis of defaults, sufficient in themselves, if found,? to extinguish that right. Therefore, in my view, the legal representatives, if they wished, to continue as tenants, were bound to undertake to establish that there was no default either in payment-of rent, or by subletting of the premises, by their deceased father Sayyed Fazai-i-Haq. Their presence in the litigation was therefore necessary. It was also necessary for the purpose of resisting the claim of the landlord that he required the premises for his own use, and that he (landlord) was entitled to delivery of possession on that ground as well." The clarification provided in a separate opinion recorded by B. Z. Kaikaus, J. in the same judgment became necessary because of the following observations made by the Letters Patent Bench of the High Court in its judgment : "We respectfully agree with the learned Single Judge that if the proceedings for ejectment had been started after the death of Syed Fazal-i-Haq, this default could not have been availed of against his legal representatives, but that is so because the landlord took no notice of his default until he lived. . It would, therefore, be assumed that he had condoned the default." The following is the relevant portion of that opinion : "However, while distinguishing Tickner v. Clifton ( (1.929) 1 K B 207) my Lord has used words which may lead to the conclusion that the children are bound by the default of the father, because prozeedings for ejectment had been filed during the lifetime of the father. I do not take those words to mean that if the proceedings had not been filed during the lifetime of the father the children would not be affected by the default. If the children derived their right from the father then they would be affected by the default committed by him even though proceedings for ejectment had not started in his lifetime. On the other hand, if they do not derive their title from the father their right would not be affected by the fact that proceedings for ejectment had started against the father for in that case those proceedings would be proceedings against the father personally and would come to an end by his death." It is clear, therefore, that personal actions connected with the individuality of a person do not survive him (actio personalis moritur cum persona). There is, however, an important exception to it i.e. where personal a,tions have matured into a decree or become part of the estate of the deceased. As Salmond has put it "A right vests when all the facts have occurred which by law occur in order for the person in question to have the right". In the words of Paton "Every right. arises from title, when all the- investitive, facts which are necessary to create the right have occurred; the right is vested". By a judgment, decree or order, as the case may be, a personal 1 action gets perfected and becomes a part of the estate of the deceased The right to immediately possess a property subject to its being tested in appeal, is a tangible, valuable property right which comes to vest in the owner of the property and on his death passes on to his heirs. The heirs inherit his estate alongwith the vested right to obtain actual physical possession of the demised premises with the attaching limitation of law in the form of conditions attaching to such an order of possession. The legal representatives can execute the order of the ejectment and take the property on the same terms on which their deceased predecessor-in-interest was entitled to it. A fairly detailed discussion of the subject is found in Shah Muhammad v. Noor Din (P L D 1954 Lab. 461). This decision is of assistance for the purposes of present proceedings to which strict provisions of the Civil Procedure Code do not apply, for understanding the general principles of law of survival of rights even where the cause of action is personal to a litigant. The conclusion which was reached with regard to the practice and procedure on such a plea being raised finds mention at page 470 in the following words : "I now pass on to the third question. I have held that neither the suit nor the appeal abates. But a plaintiff who had secured a decree has died and the appellant claims that the decree being based on a personal right, the benefit of this decree does not pass to the heirs. What should the appellate Court do? As regards the merits of the appeal I have already said that the appeal does not abate and the Court should hear the appeal on the merits if the decree is of a kind that may affect the interests of the appellants. But if the appeal does not succeed on merits, should the appellate Court go into the question as to whether the interest in the decree passes to the heirs? The ordinary rule in such cases is that a Court is only concerned with the rights of the original, patty. The legal representative of a deceased party cannot take pleas which were not open to the original party, and it may well be said that the pleas which were not open against the original party, should not be allowed to be raised. However, there is no bar to the appellate Court taking notice of the plea and deciding it. The holders of an appellate Court are very wide as held in Maharaja Sris Chandra Nandy v. Rakhalananda Thakur wherein a decree which was valid on the date it was passed was set aside on the ground that after the decree law had been enacted with retrospective effect. Of course, ordinarily the Court will leave this question to be decided by the executing Court. It is to be observed that the question which arises on this plea will be altogether new and would ordinarily have to be decided after taking of evidence. While, therefore, I would not hold there is any bar to the jurisdiction of the Court to take notice of this plea, the matter will be gone into by the appellate Court only in exceptional circumstances." The legal effect is the same even in rent control proceedings where ejectment of tenant has been obtained on the ground of personal need before the death of the person whose need accounted for the eviction order against the tenant: There are a few very illustrative decisions which recognise and give effect to this general principle of law. In the case of Goldt trope v. Bain ((1925) L R 2 Q B 455), the facts were that the landlady had obtained an order for possession of a dwelling house on the ground that she required it for the use of herself and family. An order for possession to become effective on 30th November, 1951 was passed. On August 30th of that year the landlady died and by her will left the dwelling house to her daughter. When the daughter sought possession she was denied on the ground that the order was personal to her mother and its effect ceased on her death. It was held as follows "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 curse, 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 XLII, rule 27 of Civil Procedure Code, section 15 of Urban Rent Restriction Ordinance, 1959 and section 21 of Sind Rented, Premise 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 so only to sub-serve 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 bye' 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 doubt by the bill, and provided further it would be equitable and' just to recognise the intervening rights" (30 C J S 990). This Court enjoys such a power on the strength of Article 187 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 and 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 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.? Ali Muhammad (PLD1971 SC94), 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 reversed the order holding that 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) (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 note therefore, be relevant and are altogether excluded from consideration.

1. 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 (4f x 3J') 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 failed to pay the rent and that the premises were required for the use of his son without particularising 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 application filed by him against the petitioner lost efficacy inasmuch as his son Muhammad Waheed, for the use oft 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 on 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 leaned 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 1 3 (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 fi.ids 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 illeged or improper." 2. (Dr.) Major Abdul Ahad Khan v. Soofi Muhammad Yasin and Brothers (PLD1948SC200). 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 tits 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 o: 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 circumstances I am of this 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 interference with the finding of fact recorded by him, specially when there was no question of law raised to the Second Appeal." This Court thereafter restored the order of the Additional District Judge.

3. Abdur Rahman v. Fazal Karim 1984 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 that 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 representatives of Fazal Karim. They 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 defeated 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 C. P. 530-8 of 1983. Fabmida 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 oti to her heirs on her demise". Thie view was affirmed and leave to appeal was refused by this Court on 5th of February, 1984.

5. Muhammad Ismail v. Mst. Dilshad Kauser G. 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 convicted that there are reasonable requirements existing to justify that her demand is bona fide." and ordered the ejectment of the tenant. 44 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 Kauser 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 fetish 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 follow "In seeking leave to appeal Mr. Akhtar Mahmud raised the same plea as was urged before the High Court, and in support of it be relied on Muhammad Ashraf v. Mst. Azizan and 4 others P L D 1981 Lab.

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 Kauser 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 be had become aware of the plea of the need of Mst. Dilshad Kauser for her own personal use. Thus 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 (P L D 1981 Lab. 201), 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 benefits 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 aforementioned reason." In the case of Irshad All v. Muhammad Umar (P L D 1981 Kar. 273) Mst. Zulekha, the landlady applied fur 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 Uistrict 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 determination 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 they legal representatives can defend the order and claim the benefits arising thereunder 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, circumstances, an 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 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 notice 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." On the above findings Hakim Chiragh Din succeeds to the estate of his son Muhammad Aslam. He becomes the landlord of the premises. There is nothing on the record to indicate that he suffers from any personal incapacity in the matter of occupying the premises to be vacated by the tenant. In the circumstances, it could not be held that with the death of Muhammad Aslam, at that stage of the proceedings, the need got extinguished or the order of eviction became infructuous. We accept this appeal, set aside the judgment under appeal and restore the order of eviction passed by Rent Controller anti upheld in appeal by District Judge. No order as to costs. M. Z. M. Appeal accepted.