MINHAJUL ABIDIN KHAN Versus SHAMIM AKHTAR

Appellants have challenged judgment, dated 30‑1‑1988 passed by learned Civil Judge‑cum‑Controller, Sibi directing their eviction from Shop No. 3‑1/74, Liaqat Bazar, Sibi.

2. Facts briefly stated are, that on 1‑11‑1986 respondent filed an application for eviction of deceased Zainul Abidin (predecessor‑in-?title of appellants) from Shop No. 3‑1/74 situated at Liaqat Road, Sibi. The eviction was sought on the ground of (i) personal bona fide requirement for her son Muhammad Zahoor, and (11) default for the months of September and October,, 1986. Deceased Zainul Abidin filed written statement on 16‑11‑1986, categorically repudiating all the averments relating to claim set up in the application. It was pleaded that Muhammad Zahoor was actually 'step son' of respondent landlady, therefore, eviction application was not maintainable. According to him real intention for initiating action, was to enhance the monthly rental. During pendency of these proceedings Zainul Abidin Khan died, consequently appellants were substituted as heirs. Later amended pleadings, on almost identical lines were filed, by the parties. However, it was specifically asserted that Muhammad Zahoor was not legal heir of respondent, therefore, application seeking eviction for his benefit was not maintainable. Initially trial Court on 16‑11‑1986 framed following five issues:‑--

(i) Whether the shop in dispute is required by the applicant/ landlady for the personal bona fide use and occupation of her son, Muhammad Zahoor?

(ii) Whether the son of the applicant, Muhammad Zahoor ? is unemployed?

(iii) Whether the respondents have failed to pay/tender the rent for the months of September and October, 1986 to the applicant/landlady?

(iv) Whether the applicant /landlady wants to ,enhance the monthly rent of the shop in dispute?

(v) Whether the applicant is entitled to the relief claimed?

However, after amended pleadings, following issue was added on 4‑3‑1987:---

(i) Whether the application is not maintainable in view of preliminary objection?

Respondent /landlady examined 5 witnesses namely (i) Allah Dad, (ii) Ghulam Rasool, (iii) Muhammad Ayub, (iv) Muhammad Anwar (v) Behram apart from herself to substantiate bona fide requirement of the premises of her stepson, Muhammad Zahoor. Where as appellants also adduced 5 witnesses i.e. (i) Nanoo Mal (ii) Abdul Majid (iii) Ghulam Qadir, (iv) Qadir Bakhsh and (v) Behram Khan besides statement of respondent Moinul Abidin for himself and attorney for others. Learned Civil Judge‑cum‑Controller, Sibi on appraisement of evidence led by parties, granted eviction application and directed ejectment of appellants, by means of judgment, dated 30‑1‑1988. It may be mentioned that issue regarding default and maintainability was decided in negative whereas relief was allowed on the point of personal bona fide requirement for her step son. Feeling aggrieved from aforesaid eviction order present appeal was preferred on 9‑2‑1988.

3. Mr. Basharatullah learned counsel for appellants referring to preliminary objection concerning maintainability of eviction proceedings, emphatically canvassed that word "children" occurring in section 13(3)(a)(ii) of Ordinance VI of 1959 does not cover 'step son'. He maintained that since, impugned order has been passed on the sole ground of bona fide use for the benefit of step son, therefore, same is patently without jurisdiction.

Mr. Basharatullah further submitted that 'children' of respondent presupposes her 'off‑springs' born out of her wedlock with deceased husband. He therefore emphazised that other relations whether dependent or not such as, step son, step daughter, brother, sister, adopted child, grand‑child, nephew, niece etc. cannot be covered by the word 'children' occurring in aforementioned provision of law, as such application on the ground of bona fide requirement of 'step son' was evidently incompetent.

4. Mr. Mohammad Aslam Chishti, learned counsel for respondent/ landlady on the other hand strived hard to argue that 'child' includes 'Step child', grand child, illegitimate child of 'adopted child". Reference was made to the definition of 'child' contained in Words and Phrases legally defined by John‑B Saunders 2nd Edition Vol: I‑252. He thus contended that relevant provisions be liberally construed, so as to cover all dependants, associated with the need of family, including, 'step children'. To substantiate his submissions following judgments are referred:‑‑---

(i) Allah Wasaya v. Sultan Ahmad P L D 1976 Lah. 62.

(iii) Syed Ibrahim etc. v. Dr. Mrs. Salima Firdaus P L D 1982 Quetta 35.

(v) Adam Ali Hassan Ali v. Mst. Rubab Bai 1982 C L C 410.

5.Since fate of eviction application instituted by respondent revolves around, entitlement to get premises for the benefit of her 'stepson', it would be appropriate to first determine this legal aspect. ? For better understanding relevant portion of section 13(3)(a)(ii)(a) of Baluchistan Rent Restriction Ordinance, VI of 1959 hereinafter called "The Ordinance" is reproduced below:‑--

"Section 13(3)(a). The landlord may apply to the Controller for an order directing the tenant to put the landlord in possession".

(i) ............................................................

(a).........................................................

(b)...........................................................

(c).............................................................

(ii) In case of non‑residential building or a scheduled building or rented land if:‑

In case of non‑residential building or a scheduled building or rented land if

(a) he requires it in good faith for his own use or for the use of any of his children.

Note:‑Word male occurring in this provision was deleted vide Baluchistan Ordinance VIII of 1985 dated 6‑2‑1985.

(b) ............................................................

(c) ............................................................

Provided.......

Provided.......

6. It may be seen that term 'children' ordinarily means real sons and daughters of first degree and does not include those who are not "off‑spring" of marriage between the spouses. It is obviously indicative of blood relation of 'children' with landlord, which by? implication in case of landlady would suggest, to be "Children" born out of hex' womb. Therefore, word children cannot be legitimately extended to any other close relationship, like children of second degree or step children, etc. The observations in cases; (i) Muhammad Zahir Khan v. Ch. Shah Muhammad P L D 1980 Lah. 125, (ii) Tahir A. Khairullah v. Mst. Zareefun Nissa P L D 1968 Kar. 182); (iii') Dr. Miss I. Ali Muhammad v. Muhammad Shafiq P L D 1971 SC 494, (iv) Rustom Khudadad v. Arakan Furniture Mart P L D 1962 Kar. 79 (v) Mumtaz Humayon v. Major Habibur Rehman P L D 1969 Lah. 886 (vi) Abdullah Baluch v. Adam Ali P L D 1961 SC 28 and Muhammad Israil,, Biswas v. Amrita Lal Choudhry P L D 1961 Dacca 25 are .quite instructive in this behalf. Additionally principle of law enunciated in Lahore judgment reported as Sirajuddin v. Mst. Rehmat Bibi and others 1983 C L C 2090 is on all fours in the instance case, wherein it was expressly propounded that 'Step son' does not fall within the purview of section 13(3)(ii)(a) of the Rent Restriction Ordinance, 1959.

7. Now considering arguments concerning liberally interpretation raised by learned counsel for respondent it may be observed that there is no cavil to said legal proposition. Generally broader and objective view, which may be more beneficial, and conducive to the spirit of law, needs to be adopted. But simultaneously it cannot be over‑looked, that functions of the Court are primarily restricted to interpret the law and not to amend, modify or improve the same. Obviously while interpreting as far as possible, neither, any word could be added nor subtracted from any statute. Besides Courts do not enjoy powers, to introduce by implication certain words or meaning which otherwise, does not exist. Therefore, even by a liberal construction word 'step' cannot be deemed or introduced in section 13(3)(a)(ii)(a) of Rent Restriction Ordinance, 1959. It is a cardinal principle of law that when there is no ambiguity, the words of a statute must prima facie be given their ordinary meaning. Thus omission cannot be sought to be supplied when words apparently are simple and plain: Main purpose is always to ascertain and achieve real intent of the` legislature. In the light of above discussion reverting to the provision of law word 'his' preceding to 'children' used by legislature is of considerable significance. Thus word 'his' is relatable to "children" appearing in aforequoted provision of law. Now applying golden rule of plain literal meaning it requires to be examined whether 'step son' can be deemed to be 'her child', obviously answer would be in negative.

8. Learned counsel for respondent then attempted to argue, that factually it was need of respondent herself and 'stepson' was merely to look after business for the needs and benefit of family members. May as it be, as regards present proceedings, not an iota of evidence has been adduced to support the stand taken at the time of arguments. Even in her own deposition, respondent plainly stated that premises was required for the need of Muhammad Zahoor. Therefore, it is not possible to allow respondent, to set up absolutely new case. Had the respondent /landlady claimed premises for her own personal requirement or for operating business through her stepson, perhaps case would have been quite different in the light of observation of reported judgment, Muhammad Farid Khan v. Haji Mir Zaman Khan P L D 1982 SC 278. A fake attempt was also made by learned counsel for respondent to suggest, that property initially belonged to late husband of respondent, therefore, 'step son' of appellant is entitled to relief in his own right as co‑owner. Since respondent in her statement recorded on 4‑4‑1987 categorically claimed exclusive ownership of shop in dispute, therefore, there is hardly any scope for raising such plea, specially when this stand was not taken during trial. Thus objection in this behalf, is apparently fallacious. The issue regarding default was decided against landlady and no grievance in respect thereof has been made in this Court even during arguments. Relief was allowed only on the point of personal requirement for 'step‑son', whereas I am inclined to hold that said ground was not available to respondent under the law. On such view of the matter, it would be unnecessary to dilate upon evidence concerning bona fide requirement of 'step‑son'.

For the foregoing reasons appeal is accepted, and judgment dated 30‑1‑1988, passed by Rent Controller, Sibi is set aside.

Parties are left to bear their own costs.

A. A./311/Q ???????????????????????????????????????????????????? Appeal accepted.