2022 PLP 1442 (CLC)

MIRZA VIQAS RAUF, J.

This appeal under Section 24 of the Cantonment Rent Restriction Act, 1963 (hereinafter referred as "Act, 1963") is directed against the order dated 12th April, 2018, whereby the Additional Rent Controller, Rawalpindi Cantonment proceeded to dismiss the ejectment petition filed by the appellant under Section 17 of the Act ibid seeking eviction of respondent No.1 (hereinafter referred as "respondent") from shop No.1 (Swasey Mobiles) 49/62 Uni Building, Bank Road, Saddar Rawalpindi Cant (hereinafter referred as "rented premises").

2. Facts in brief necessary for the adjudication of instant appeal are that the appellant filed an ejectment petition under Section 17 of the "Act, 1963" seeking eviction of the "respondent" on two fold grounds, firstly that the "respondent" failed to comply the terms and conditions of the lease agreement and secondly the appellant needs the "rented premises" for his personal use. The "respondent" while resisting the ejectment proceedings, submitted his written reply wherein he controverted the factual assertions. From the divergent pleadings of the parties, following issues were framed:-

1. Whether petitioner requires the suit property for his personal need and occupation? OPP

2. Whether the ejectment petition is not maintainable in view of the preliminary objections raised by the respondent in his written reply? OPR

3. Relief. After framing of issues, both the sides produced evidence and on completion of the same, ejectment petition was dismissed through impugned order.

3. Learned counsel for the appellant contended that "rented premises" were required by the appellant for his personal use. He added that though overwhelming evidence was produced to this effect but it has been discarded without assigning any lawful reasoning. Learned counsel emphasized that impugned order is not tenable under the law.

4. Conversely, learned counsel for the "respondent" vehemently resisted this appeal.

5. Heard. Record perused.

6. The relationship of landlord and tenant inter se parties is not in dispute. The appellant being the landlord moved an ejectment petition seeking eviction of the "respondent" mainly on the ground of personal bona fide need. Needless to observe that the "rented premises" is a shop, which is commercial building. Section 17 of the "Act, 1963" lays down the grounds for eviction of tenant. Section 17(4)(b) deals with the matter in issue, which is reproduced below:-

17. Eviction of tenant.- (1) . (2) . (3) . (4) A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession,-- (a) in the case of a residential building, if- (i) he requires it in good faith for his own occupation or for the occupation of any member of his family; and (ii) he or the member of his family, as the case may be, is not occupying any other residential building suitable for his needs at the time, in the Cantonment Area concerned or in any local area in the vicinity thereof; and (iii) he or the said member has not vacated such a building in the said area or vicinity without sufficient cause after the commencement of this Act; and (b) in the case of a commercial building, if-- (i) he requires it in good faith for his own use; and (ii) he is not occupying in the Cantonment Area concerned or in any local area in the vicinity thereof in which such building is situate for the purposes of his business any other such building suitable for his needs at the time; and (iii) he has not vacated such a building in the said area or vicinity without sufficient cause after the commencement of this Act: Provided that where the tenancy is for a specified period agreed upon between the landlord and the tenant, the landlord shall not be entitled to apply under this sub-section before the expiry of such period: Provided further that when the landlord has obtained possession of a residential or a Commercial building under the provisions of sub-clause (a) or sub-clause (b) he shall not be entitled to apply again for the possession of any other building under that sub-clause, unless the building of which he had previously taken possession has become unsuitable for his needs: Provided also that this subsection shall not apply to serais, hotels, dak-bungalows, lodging-houses, boarding houses, residential clubs, restaurants, eating houses, cafes, refreshment rooms and places of public recreation or resort or premises dealing in sales or production of materials of books of educational and cultural values except where the landlord requires any such building to carry on any such business of his own, in which case he may make an application under this sub-section after having served two years notice on the tenant; but no building which is not on the commencement of this Act, being used for any of the aforesaid purposes, or has not after such commencement been let out expressly for any such purpose, shall be converted to any such purpose except with the consent in writing of the landlord. (Underlining supplied for emphasis) It is thus clearly manifest from the above that in case of residential building, the landlord can move the ejectment petition if he requires it in good faith for his own use or for the use of any member of his family subject to fulfillment of other conditions as well but if the building is commercial, then landlord can only move the ejectment petition for his own use.

7. Though in the ejectment petition, the appellant has narrated that he needs the rented premises for his personal use but while appearing in the witness box as AW-1, he departed from his stance and deposed as under:- From the perusal of above extract from the statement of the appellant, there remains no cavil that the appellant is seeking eviction of the "respondent" from the "rented premises" not for his own personal need but for the use of his children. Section 17 (4) (b) of the "Act, 1963" does not recognize the need of the children of the landlord as a valid ground for eviction of tenant and it is restricted to personal bona fide need of the landlord/landlady.

8. Looking from another angle, when evidence is examined qua the personal bona fide need of the appellant, it evinces therefrom that he has failed to lead cogent and tangible evidence to establish personal bona fide need. It is also established on the record that the appellant is not only owning so many other shops but two multistoried commercial buildings/Plazas in the posh area (Saddar, Rawalpindi). It is also evident from the record that the appellant has recently got vacated two shops in one of his commercial building (Uni Plaza), which are lying vacant. Guidance in this respect can be sought from Mrs. Noor Jehan Bi v. Muhammad Yousaf (2002 SCMR 1933). The relevant extract from the same is reproduced below: - "

9. It is important to note that under sub-clause (i), clause (b), sub-clause (4) of section 17 of the Act, 1963 a landlord/ landlady competently can apply to the Controller for an order directing the tenant to put him/her in possession of the premises subject-matter of proceedings if he/she requires it in good faith for his/her own use in the case of commercial building. At this very stage, it is important to note that conversely law givers in respect of a residential building under section 17(4)(a)(i) of the Act, 1963 have used expression that he/she (landlord/landlady) requires it in good faith for his/her own occupation or for the occupation of any member of his/her family, he/she can apply to Controller for the ejectment of tenant. Therefore, visible distinction in both the provisions is that for commercial building landlord or landlady can only ask for the ejectment of tenant from the building if he/she requires it for her/his own use. Whereas in respect of residential building such requirement can also be put forwarded in respect other member of his/her family including the husband and son, etc. In Black's Law Dictionary (7th Edition) at page 1130 the word 'own' has been defined as 'to have or possess as property' to have legal title to'. From the dictionary meaning of the word 'own' no other inference can be drawn except that landlord/landlady can ask for ejectment of the commercial building for his/her own personal use without asking ejectment of the tenant for the use of any other family member in respect of commercial building under section 17(4)(b)(i) of the Act, 1963. Though such strict interpretation of the expression for 'own use' can cause difficulty in some exceptional cases, but Court is bound to interpret the law as it has been legislated and if there is any omission, that cannot be supplied without any cogent reason." The above view was further reiterated in the case of Muhammad Yousuf v. Mrs. Noor Jehan Bi through Attorney (2000 CLC 1252). 9.For the foregoing reasons, instant appeal fails and is dismissed with no order as to costs. Office to return the record of learned Additional Rent Controller, Rawalpindi Cantonment accordingly. MQ/M-137/L Appeal dismisse