BATA PAKISTAN LIMITED through Company Secretary and General Attorney Versus MUHAMMAD ANWAR

MAULVI ANWARUL HAQ, J .---On 21-12-1983 the respondents filed an application for ejectment of the appellant while another respondent was Pakistan General Insurance Company Limited. I am told by both the learned counsel that so far as the said other respondent is concerned, at some point of time during the course of this, litigation, its matter was finalized and the said respondent was ejected. According to the application, the respondents are the owners of the building comprising 9 rooms and described in para.2 of the ejectment petition. According to the ejectment petition, the respondent No.1 owns 5/16 share while the respondent No.2 owns 4/16 whereas a decree for specific performance of agreement to sell qua the remaining 7/16 share has also been passed by a learned ADJ, Gujranwala on 15-5-1981. The appellant is in possession of a portion of the said building as described in para. 4 of the ejectment petition subject to payment of Rs.550 per month as a rent. The portion was depicted in a plan annexed with the application. The ejectment has been sought on the ground of default in payment of rent since January, 1981. The bona fide requirement for personal use and occupation by the respondent No. 1 was also pressed. It was stated that he intends to run a Restaurant in the said premises. The appellant in its written reply took the plea that the building was let out to the appellant only by the respondent No.2 by means of a written document dated 11-2-1969. On 29-6-1972 they received a notice from the L.Rs. of one Muhammad Hussain through his Advocate claiming that they are owners of 1/2 share in the building and suits are pending in the civil court at Lahore and according to the order of District Judge, Lahore, dated 3-10-1974 the appellant started depositing rent to the extent of share of Muhammad Hussain in the treasury. Ultimately, a sum of Rs.309.38 was to be paid to Shaukat Ali respondent and Rs.240.62 to the L.Rs. of the said Muhammad Hussain and the appellant had been paying rent accordingly and up to date rent stands paid. The other allegations were denied. Following issues were framed by the learned Rent Controller:--

(1) Whether the relationship of landlords and tenant exists between the petitioner No.1 and respondents Nos. 1 and 2?

(2) Whether the respondents have committed default in the payment of rent of petitioner No.2 Shaukat Ali? OPR

(3) Whether the application is bad for non-joinder of necessary parties'?

(4) Whether the petitioner No.2 Shaukat Ali cannot file an ejectment petition against the respondents on the ground of personal use of petitioner'?

(5) If issue No.4 is not proved in affirmative whether petitioner No.1 requires the property in dispute in good faith for his personal use and occupation? OPP

(6) Relief.

Evidence of the parties was recorded. The learned Rent Controller passed an order of ejectment on 8-11-1987. I may note here that the issue of default was not pressed and the ejectment was ordered on the ground of personal requirement as pleaded. A first appeal filed by the appellant was dismissed on 15-5-1990. Against this judgment, two S.A.Os. were filed. S.A.O. No.6/90 was filed by the .appellant while S.A.O. No.7/90 was filed by Akhtar Hassan, etc. I may, note here that these are the said L. Rs. referred to in the reply of the appellant. Both the S.A.Os. were allowed by this Court on 12-1-1993 and it was directed that the first appeal filed by the appellant be decided afresh and the application filed by the said Akthar Hassan, etc. be also disposed of. After the remand, the learned ADJ took all steps to issue notice to the said Akhtar Hassan, etc. and ultimately a proclamation was made but they did not turn up. Consequently, the application was dismissed for non-prosecution. The first appeal was dismissed on 18-5-2002.

2. Learned counsel for the appellant contends that since the building was let out to his client by Shaukat Ali respondent and thereafter the said L.Rs. of Muhammad Hussain intervened and the rent being paid in accordance with the order of the learned District Judge to Shaukat Ali and the said L.Rs. While respondent No.2 is also a co-owner of a portion of the said property, the ejectment of the appellant could not have been ordered on the ground of bona fide personal requirement of the respondent No.1 on the principle that one of the co-owners can seek ejectment of a tenant. According to the learned counsel, this principle would be attracted only where the ejectment is being sought on the ground of default in payment of rent. He relies on the case of Abdul Ghani v. Abrar Hussain 1999 SCMR 348. Learned counsel for the respondents, on the other hand, contends that the facts of the case being relied upon by the learned counsel for the appellant are distinguishable. He relies on the case of Anwar Khan v. Abdul Manaf 2004 SCMR 126 to support the impugned orders.

3. I have gone through the records of this case, with the assistance of the learned counsel for the parties. There is no dispute at the moment that respondent No. 1 is a co-owner of the said premises. It is also an admitted position on record that respondent No.2 had let out the building to the appellant and it was he who had put the appellant in possession. It is also a matter of record that a direction was issued by the learned District Judge, Lahore, that, the share of rent be paid to the L. Rs. of Muhammad Hussain.

4. The application which was ordered to be decided by this Court while allowing S.A.Os. Nos.6 and 7 of 1990 was tiled by the said L. Rs. in Court of learned District Judge, Gujranwala, on 13-6-1988. It is a brief application and I deem it appropriate to reproduce the same hereunder paras. 2 and 3 of the said application:--

The respondents replied that a decree for specific performance of an agreement to sell has already been passed against all the L.Rs. of Muhammad Hussain and they have also deposited the balance amount of consideration. I may note here that the copy of the said judgment and decree, dated 15-5-1981 is present on record as Exh.A-1. Be that as it may, notwithstanding the fact that all the parties were required by this Court to appear before the learned District Judge, Gujranwala, who was directed to decide the matter within two months. The said applicants never turned up after the decision of S.A.Os. and ultimately the application was dismissed in default.

5. I have examined the said judgment in the case of Abdul Ghani being relied upon by the learned counsel for the appellant. The facts of the case are narrated by their lordships in paras.3 and 4 of the said judgment. It was a case of a big mansion that was sold to as many as 59 persons and a PTO was issued. The appellants before their lordships were the L.Rs. of one of those 59 persons, namely, Nanhey Khan. Three ejectment petitions were filed by the said three sons on the ground of default and personal use. The defence taken by the alleged tenants was that the said landlords are not the co-owners of the building in their possession. Later, they pleaded sale agreements in their favour by three joint transferees of the said property and execution and registration of power of attorneys in, their favour. It was further observed by their lordships that the said transferees/co-sharers were either impleaded as parties or they appeared in court and fully supported the plea of the tenants that they had purchased their shares from them. It was in the said circumstances that after holding that there is consensus of view among the Superior Courts that one of the co-landlords or one of the co-owners can seek ejectment on the ground of his personal requirement, their lordships observed as follows at page 365 of the report:--

"The question .which requires consideration is, as to whether the above principle of law can be invoked in aid in the case in hand. Admitted position as repeatedly observed, is that the property in question is a big mansion which comprises plot of land measuring 11401 sq. yds., several buildings thereon consisting of about 285 small apartments and some other constructions. The above property was transferred to 59 persons who had contributed different amount towards the price of the above property through the compensation books. It is also evident that three of the above original transferees, or their legal heirs, have catered into agreements of sale with the respondents agreeing to transfer their interest. They have opposed the appellants' rent cases on the above two grounds. The appellants, as pointed out hereinabove, are the sons of one of the above 59 transferees. Their father contributed Rs.9,900 towards the above price of Rs.5,71,000. As the property has remained un-partitioned, the appellants cannot claim that they owned particular portion of the big mansion in question. In our view, since some of the original transferees, or their legal heirs, are opposing the appellants in the above rent cases, they cannot apply for ejectment on the ground of personal requirement, fill that time the property is partitioned and they get particular portion of the property as their share. If we accede to the appellants' contention, it would lead to an illogical/unreasonable situation, namely, a joint transferee having one paisa share out of rupee will get the possession of the entire property for his personal requirement in spite of opposition of some of the other co-owners."

6. In the present case, it is the stated case of the appellant itself that the building was let out and the appellant was put in possession by the respondent No.2. This means that he was a co-sharer in possession. Even if the said judgment and decree regarding the remaining portion of the building is ignored, admittedly, the respondent No.1 is also a co-sharer. It is not the case of the appellant that any of the co-sharers of the building have transferred or agreed to transfer their shares to the appellant. I have already reproduced the application filed by the said L. Rs. of Muhammad Hussain, which was never pursued after the decision of this Court. It has simply been stated that since they are also, co-sharers, they be impleaded as a party. I, therefore, do agree with the learned counsel for the respondents that the facts of this case are absolutely different from the facts of the said case of Abdul Ghani and under the general principle approved and laid down by their lordships in the said very judgment and re-affirmed in the said case of Anwar Khan being relied upon by the learned counsel for the respondents, ejectment can be sought for the bona fide personal use of the respondent No.1 particularly when respondent No.2 who had, admittedly delivered possession to the appellant had no objection to the sage and is fully supporting the said co-sharer. The S.A.O. is accordingly dismissed. However, the appellant is directed to deliver vacant possession of the building to the respondents on or before 7-7-2007. No orders as to costs.

7. The records of the learned courts below be remitted back immediately.

M.H./B-26/L Appeal dismisse