P L A 1981 Lahore 201 (PLP)

This is a Second Appeal against order dated 5-1-1978 passed by the learned Rent Controller, Jauharabad, directing the appellant and Abdus Sattar, respondent No. 5, to deliver the vacant possession of Shop No. 2518 situated in Main Bazar, Jauharabad, to Muhammad Ali, predecessor-in interest of respondents Nos. 1 to

4. This order was affirmed in appeal by the learned District Judge, Sargodha, on 6-11-1978, and the appellant and Abdus Sattar, respondent No. 5, were ordered to deliver the possession of the rented shop to respondents Nos. 1 to 4, as during the pendency of the appeal Muhammad Ali, who had leased out the shop in question to the appellant and Abdus Sattar, respondent No. 5, had died.

2. Muhammad Ali filed an application under section 13 of the Punjab Urban Rent Restriction Ordinance, 1959 (hereinafter to be called as "the Ordinance") on 26-1-1976 for the eviction of the appellant and Abdus Sattar respondent No. 5 from Shop No. 25/B situated in Main Bazar, Jauharabad, which in the first instance was leased out to respondent No. 5, but after 3-4 months was also allowed to be occupied by the appellant as co-tenant of respondent No.

5. The grounds, on which ejectment of toe tenants was sought, were that they had committed default in payment of rent and a sum of Rs. 3,550 was due from them as arrears of rent ; that they had caused damage to the shop and impaired its value and, lastly, that the applicant required the rented shop in good faith for his own use.

3. The appellant and Abdus Sattar, respondent No. 5, both contested the application. They controverted the applicant's allegations inasmuch as respondent No. 5 was not occupying the shop as tenant of the applicant nor he had anything to do with the rented shop ; that the applicant was entitled to receive Rs. 75. per mensem as the rent of the shop and not Rs. 150 as claimed by him ; that the entire rent due from the appellant had either been paid to the applicant or had been deposited for him in Court ; that no damage had been caused to the rented shop by the appellant who was its sole occupant and that the rented shop was not required by the applicant for his own use as he was residing in Chak No. 660/MB and was engaged in cultivat ing his land. The learned Rent Controller framed the following issues which arose from the pleadings of the parties :- (1) Whether the monthly rent of disputed shop was fixed at Rs. 150 ? (2) If issue No. I is not proved, then what was the monthly rent ? O. P. Parties. (3) Whether the respondents have not paid the fixed rent since May, 1975 ? O. P. A. (4) If issue No. 3 is not proved, whether he has made any default in the payment of the fixed rent ? If so, since when ? O. P. Parties. (5) Whether the respondents have damaged the disputed shop and thereby decreased its value ? O. P. A. (6) Whether the disputed shop is in good faith needed by the applicant for the personal use ? O. P. A. Issue Nos. 1, 3 and 5 were found against the applicant while Issues Nos. 2 and 4 were left undecided. Issue No. 6 was found in favour of the applicant and as a result of the said finding an order of ejectment was passed against the appellant and respondent No.

5. The learned Rent Controller also held that respondent No. 5 was in possession of the rented shop as a tenant of the applicant.

4. The order of ejectment passed by the learned Rent Controller was challenged in appeal before the learned District Judge by the present appel lant alone. During the pendency of the appeal, Muhammad Ali applicant died and the appellant was allowed to pursue his appeal against respondent Nos. 1 to 4, who were imploded as legal representatives of Muhammad Ali, deceased. The appellant contended that since the applicant, who required the rented shop for his own use, had died, the order of ejectment passed against the appellant could not ensure to the benefit of respondents Nos. 1 to 4 who were the legal heirs of the applicant. The learned District Judge, however, repelled the above contention and held that the rented shop could be used by the applicant's son, respondent No. 1, as was disclosed before him by the respondents' counsel. The order of ejectment passed against the appellant was, therefore, upheld by the learned District Judge and the appellant's appeal was dismissed on 6-11-1978:

5. Learned counsel for the appellant has raised the same question in this Court which has been considered by the learned District Judge, namely, whether the order of ejectment passed against a tenant of a non-residential building on the ground that the rented premises were required by the landlord in good faith for his own use, can enure to the benefit of landlord's heirs, after his death.

6. Learned counsel for the respondent has referred to the provisions of section 13(3)(a)(i)(a) which deals with the case of a residential building and the provisions of section 13(3)(a)(W(a) of the Ordinance which are applicable in the case of a non-residential building and has argued that a male child of a deceased landlord is entitled to derive benefit from an order of ejectment passed in the case of a non-residential building in the same manner as in the case of a residential building as the provisions in respect of residential build ing and non-residential building mentioned above are identical. Although the learned counsel has not been able to lay his hand on any authority dealing with the case of a non-residential building, he has referred to the decision of Hasan Khan v. Mst. Munawar Begam (P L D 1976 Kar. 832) where the landlord had died during the pendency of proceedings of ejectment initiated by him against the tenant on the ground that the residential building let out to the tenant was required by him in good faith for his own occupation. It was held in this case that the wife and the son of the deceased landlord could pursue the cause of action after his death as the requirement of rented premises by the landlord for own occupation also included the requirement of the wife and the family of the landlord. Reliance was placed on the decision in Adam All Hasan Ali v. Mst. Rabab Bai (P L D 1965 Kar. 408) which was affirmed on appeal by a Division Bench of the same High Court in the case reported as P L D 1967 Kar.

437. Learned concel the respondents also referred to a judgment of this Court in the case of Sh. Muhammad Abbas v. Mst. Khalida Khatun (1979 C L C 660) where the expression "own occupation" used in subsection (3) of section 13 of the Ordinance was interpreted thus :- "A careful look at the provision of subsection (3) of section 13 of the said Ordinance would reveal that by the word "own occupation of the entire family of the landlord and not of the landlord alone, and by occupation of any of his children' they had in mind the occupation of grown up and married children of the landlord who planned to live independently and separately."

7. Learned counsel for the appellant, on the other hand, has submitted that in the present case, Muhammad Ali deceased applicant had sought the ejectment of his tenants from the-rented shop as he required it in good faith .?:: its "own use". He could have pleaded that the rented shop was also required by him for the use of his son, in which event the order of ejectment pasted against the tenants would have certainly ensured to the benefit of his son after his death, but since he chose to get the shop vacated for his own use, the appellant was not bound to vacate the rented premises after his death. According to the learned counsel, the; provisions of section 13(3))(a)(i)(a) of the Ordinance, which deal with the case of a residential building, are not identical with the provisions of section 13(3)(a)(ii)(a), and the authorities cited by the learned counsel for the respondents are not applicable to the facts of the present case.

8. Section 13(3)(a) provides "A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession (i) in the case of a residential building, if- (a) he requires in good faith for his own occupation or for the occupation of any of his children ; (b) . . . . . . . . . . . . . . . . . . . . . . . . (c) . , (ii:) in the case of a non-residential building or a scheduled or rented land, If- (a) he requires it in good faith for his own use or for the use of any of his male children ;". A careful examination of the provisions of sorb-paragraphs"(i) (a) and (ii) (a) of paragraph (a) of subsection (3) of section 13 of the Ordinance would reveal Chat the expression "for .his own occupation" used in sub-paragraph (i) (a) has a different connotation from the expression "for his own use" occurring in sub-paragraph (ii) (a) inasmuch as in the case of a residential building the landlord may occupy, it along with his family as the expression "for his own occupation" has been rightly interpreted t:, embrace not only the needs of the landlord but also the needs of his familv. In Adamali Hasanali v. .V Mst. Rahab Bai (P L D 1967 Kar. 437) it was observed :- . "Mr. Fakhruddin would have us hold that the words `his own occupa tion' are restricted to the personal and individual requirement of the owner to the exclusion of the needs of the owner's family, ii this narrow view is taken, it dvoulld never be possible for a landlord to take up residence in larger premises belonging to him. Thus a land lord of a bungalow, who is himself residing in a one-room flat, would not, on his marriage, be entitled to require his tenant to vacate the bungalow. The one-room flat in his occupation should, according to Mr. Fakhruddin's interpretation of section 13(3) of the Ordinance, be sufficient for his own individual requirements though tire accommoda tion may not he suitable for a married couple. l n our view, such a construction of the expression `for his own occupation' would lead to absurd results." In the case of a non-residential building, however, the landlord's need may not be the need of his family because law permits him to get the non-residen tial building vacated only either for himself or for the use of any of his male children. In other words, a landlord is not entitled to get a non-residential building vacated for the female members of his family. Although, there is no legal restriction if the landlord chooses to join others in the business which he may set up in the rented non-residential building after the ejectment of the tenant, yet he cannot be permitted to entrust his business to others, while he himself remaining out of it because in such a case, it may be said that the rented premises were not required by him in good faith for his own use. Thus, 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. 9.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 ensure 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 for 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 interpre tation 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 b; tire legal representatives of the deceased landlord for the aforementioned reason. 10. 1n view of the above facts and considerations, the order of ejectment passed against the appellant in respect of the shop in his possession does not ensure to the benefit of respondents Nos. 1 to 4 because the appellant was required to vacate the rented shop only for the use of his landlord Muhammad Ali, since deceased. Learhed District Judge's view that the rented shop can be used by Muhammad Tufail respondent No. 4 son of Muhammad Ali deceased, as he is jobless, cannot be upheld because, firstly, there is nothing on the record to show that the said respondent is jobless (a bare statement of the learned counsel for the respondents at the bar could not be considered evidence for that purpose) and, secondly, the case of Adamali Hasanali, on which reliance was placed by the learned District Judge, did not deal with a non-residential building, as noticed above. Another reasoning given by the learned District Judge in support of his view that Muhammad Ali deceased being 70/72 years of age, would have joined his son in the business because of his old age, is also without any force as it is based merely on conjectures.

11. The upshot of the above discussion is that this appeal is allowed and the order of ejectment passed against the appellant and Abdus Sattar respondent No. 5, by the learned. Rent Controller on 5-1-1978 as affirmed in appeal by the learned District Judge on 6-11-1978, is set aside. In view o f the circumstances of the case, the parties are left to bear their own costs. S. Q. Appeal allowed.