1986 PLP 1652 (MLD)

Nazir Ahmad Bhatti for Respondents. Date of hearing: 3rd February, 1986. Through filing this constitutional petition Muhammad Ashraf and two others, petitioners herein have prayed that the judgment, dated 28th September, 1983, passed by Additional District Judge‑I, Rahimyar Khan, be declared to be without lawful authority and of no legal effect whereby the petitioners have been ordered to vacate the disputed shop.

2. Briefly the relevant facts are that Muhammad Ashraf as a tenant under Muhammad Saghir Shahid, respondent No.2 occu,,ied shop bearing No. 329/ C‑B‑II/ 569, situate in Sadar Bazar, Khanpur, district Rahimyar Khan, since the year 1973. The landlord/ respondent filed an application in the Court of Rent Controller, Khanpur, on 15th March, 1978, seeking ejectment of the petitioner on the ground that he in violation of terms of tenancy had sublet the shop in dispute to his father Ghulam Muhammad (petitioner NoA) and brother Muhammad Aslam (petitioner No.3) and that he needed the shop for his bona fide personal use because his real sister's son, namely, Suleman was jobless whom he wanted to settle in life by setting up business in the said shop. The petition was strenuously contested. The pleadings of the parties gave rise to the following issues:‑ (1) Whether the respondent No.l has sublet the shop to the respondents Nos.2 and 3? O.P.P. (2). Whether the petitioner required the shop in question for his sister's son? O.P.P. (3) Relief. Both the parties led evidence in support of their respective claims. The landlord/ respondent conceded issue No.1 therefore, it was decided against him. On issue No.2, learned trial Court considering material on record held that the landlord /respondent had failed to establish his bona fide personal need, since the 'nephew' is not covered by the expression 'children' of the landlord used in section 13(3)(ii) of the Punjab Urban Rent Restriction Ordinance, 1959, and, therefore, he dismissed the application, vide his judgment, dated 21st September, 1980. Feeling aggrieved the landlord respondent preferred appeal before the District Judge which was ultimately heard and decided by Additional District Judge, Rahimyar Khan, who, vide the impugned judgment, dated 28th September, 1983, accepting the appeal ordered ejectment of petitioner on two‑fold grounds. Firstly, it was held that shop in question was originally owned by the father of Muhammad Saghir Shahid, landlord/ respondent, i.e. Suleman's maternal‑grand father, after whose death, the shop had devolved upon Muhammad Saghir Shahid (respondent) and his three brothers and three sisters including mother of Suleman, therefore, Suleman being "child" of a co‑landlord, his case was covered by section 13(3)(ii) of the Punjab Urban Rent Restriction Ordinance, 1959. Secondly, it was held that Suleman besides being nephew of Muhammad Saghir applicant /respondent was also brought up by him, therefore, Suleman being dependent of applicant is his responsibility, hence, Suleman's need was like his own child's need. Feeling aggrieved of ejectment order based on misinterpretation of law, as they call it, the tenants /petitioners filed the instant constitutional petition.

3. I have gone through the record with the help of learned counsel for the parties and also heard them at length.

4. In the first instance I would say that the observation of learn Additional District Judge that because Suleman's mother is co‑share with Muhammad Saghir Shahid applicant (respondent) in the suit shop, therefore, he (Suleman) should be treated as child of a co‑landlord is not correct. It is noteworthy that Muhammad Saghir Shahid responden did not mention in his ejectment application that his sister (mother o Suleman) was co‑sharer in the disputed shop with him. To the contrary he had avered to be sole owner of the suit shop. It is thus clear that the respondent, having realised that his application based on the ground that the premises was required for use by his sister's son Suleman would fail, had changed his stance and stated that Suleman is son o co‑owner of the shop obviously to bring the case within four corners of section 13(3)(ii) of the Ordinance. It is noteworthy that Suleman's mother has not filed in Court any ejectment petition and did not appear either claiming to be co‑owner of the shop. Learned counsel for the respondent during the arguments has taken out from his papers a rent note and shown to me wherein Muhammad Ashraf petitioner has bee recorded as tenant under the applicant/respondent alone, therefore, learned Additional District Judge has not only gone beyond the pleading rather he based his above finding on the respondent's after though plc which is tainted with mala fides.

6. As far the question that the term male children of landlord occurring in section 13(3)(ii) of the Ordinance would cover applicant' sisters son, finds a negative answer in Muhammad Zahir Khan's case reported in P L D 1980 Lah. 125, wherein Muhammad Ilyas, J., b surveying the relevant law from 1943 up‑to‑date made following valuabl observation. "As regards the term 'child' used in paragraph (a) of sub‑clans (i) of clause (a) of subsection (3) of section 13 of the Ordinance it has also been used with reference to parentage. Therefore, it means the sons and daughters of the landlord. There is nothin in the context to suggest that the said, term was intended t apply, to the entire progeny of the landlord. It seems that while enacting the above paragraph the framers of the Ordinance desire a tenant to make room for the landlord himself or the firs generation of his off springs, namely, his sons and daughter because it is his responsibility to cater for their needs. As far his grand‑children or other descendants beyond the firs generation it is the headache of their respective parents to take care of their needs."

7. Respectfully agreeing with the above view, I find that the sister' son of the landlord is not covered by the term 'male children' of landlord used in section 13(3)(h) of the Punjab Urban Rent Restriction Ordinance, 1959. The impugned ejectment order is, therefore, found t have been passed by the Additional District Judge against the expres word of law which is hereby declared to be without lawful authority and of no legal effect. There is, however, no order as to costs. A.A. Petition accepted.