WASIM AHMAD Versus NAJAT KHANAM

1. The appellant purchased a double storey building bearing No. l‑C, 6/7, Nazimabad, Karachi on 8‑2‑1975 and sale deed was registered on 17‑3‑1975. One Fateh Hussain, the predecessor‑in‑interest of the respondent was a tenant in respect of the first floor premises of the said building on a monthly rent of Rs.250. He died during the pendency of this appeal and his legal heirs have been brought on record as respondents. On the ground floor, two rooms are occupied by the appellant and the other portion has been rented out to some other tenant. After purchasing the property the appellant served a notice under section 13‑A in August, 1975 calling upon Fateh Hasnain to pay rent at the rate of Rs.250 p.m. from April, 1975. He also asked him to vacate the premises as it was bona fide required by him for his personal use. The said respondent replied through his Advocate's letter dated 27‑8‑1975 stating that the rate of rent is Rs.170 p.m. and he has paid it to the previous owner upto May, 1975. He also demanded from the appellant title documents. It is an admitted position that on 13‑11‑1975 the previous landlord had also sent a notice to the said respondent intimating the transfer and directing him to pay the rent to the appellant. On 19‑11‑1975 the appellant filed application for ejectment on the ground that the said respondent has defaulted in payment of rent from 17‑3‑1975 to 31st October, 1975 at the rate of Rs.250 p.m. and further alleged that the premises is required for his personal bona fide use. The said respondent filed written statement denying the allegations. He admitted receipt of the notice under section 13‑A of Sind Urban Rent Restriction Ordinance and pleaded that rent upto May, 1975 had been paid to the previous owner at the rate of Rs.170 p.m. which was the agreed rent. It was further pleaded that the appellant was requested to satisfy about his title but no reply was. made. The appellant's claim for personal use was also denied. The learned Controller granted the ejectment application on both the grounds but this order was set aside by the impugned Judgment passed by the learned First Appellate Court.

2. Mr. Iqbal Ahmed the learned counsel for the respondent has raised a preliminary objection that the second appeal is not maintainable and has referred to section 27 of the Sind Rented Premises Ordinance, 1979. Subsection (2) of section 27 provides that all appeals filed under the Sind Urban Rent Restriction Ordinance, 1959 hereinafter referred as the 'repealed Ordinance' shall be disposed of in accordance with the said Ordinance. Therefore, the pending appeals were to be decided in accordance with and under the provision of the repealed Ordinance. This subsection does not debar a party from filing a second appeal under the repealed Ordinance. Subsection (2) permits continuance of the appeal and further that it should be decided under the old Ordinance. As a substantive right to file a second appeal vested in the appellant, which has not been specifically taken away by the Sind Rented Premises Ordinance, 1979 this appeal is maintainable.

3. Mr. Alvi the learned counsel for the appellant contended that the finding of the learned First Appellate Court is erroneous and illegal as material evidence on record relating to default has been misread or ignored. It may be seen that notice under section 13‑A was issued on 21‑8‑1975 and it was replied by the respondent's Advocate on 27th August, 1975. The notice would have been received by the respondent either on 26th or 27th August, 1975. Taking 27th August as the date when notice would have been received by the respondent, he was obliged to pay the rent within 30 days from that dates It is therefore, to be considered whether any wilful default has been committed and is there sufficient reason for non‑payment of rent within 30 days.

4. The main contention of the learned counsel for the respondent is that immediately on receipt of the notice the respondent pointed out that demand for higher rent was not correct, the quantum of rent was also not proper and further that the title documents should be produced or shown to the respondent. He has also contended that prior to 31‑11‑1975 no notice by the previous landlord was issued. It is not necessary in law that such a notice should be issued by the previous landlord under section 13‑A. It is the duty of the new owner to serve a notice and intimate the tenant about the transfer of property in his favour. It is correct that if a tenant requires the new landlord to satisfy him about his title necessary information should be provided but it does not mean that if such information is not furnished the tenant should remain quiet without making a proper enquiry within a period of 30 days, the time allowed by the statute to pay the rent. The date of registration of sale‑deed was furnished in the notice and it was open to the respondent to have made proper enquiry in the office of the Registrar or with the previous landlord to ascertain such facts. If the contention of the learned counsel for the respondent that unless the new landlord satisfied the tenant about his title he is not bound to pay rent is accepted serious consequences will follow and the very provision of section 13‑A will become nugatory. The purpose of providing 30 days time is to give the tenant sufficient time to ascertain the correct fact at his end. Therefore, in the facts and circumstances of the case mere demand of document of title was not sufficient to delay the payment beyond the period of 30 days.

5. As regards the rate of rent the landlord is entitled from the date of purchase to recover the rent at the rate on which the tenant has been paying. But if higher demand is made, the tenant can pay the rent within the specified time at the rate he had been paying to the previous landlord. If such payment is made within the permissible period he will not be deemed to be a defaulter. The law does not permit that if higher demand has been made the amount the tenant had been paying should not be paid.

6. Mr. Iqbal Ahmed the learned counsel for the respondent has contended that the respondent had approached the appellant who had agreed to accept the rent after he comes back from Germany. In this way the payment has been delayed: This statement of the respondent has not been challenged in cross‑examination. However, unchallenged statement may prove‑ a fact, if it is not contradictory and not proved to be incorrect. The respondent has stated that he had never met the appellant. This completely negates the plea that he had approached the appellant for payment of rent. In the circumstances, it cannot be accepted that the appellant had allowed the respondent to pay the rent at a future date.

7. Mr. Iqbal Ahmad has referred to 1968 S C M R 828 and PLD 1976 Pesh. 126 and contended that in second appeal on question of facts the finding of the First Appellate Court is final. The finding of the First Appellate Court can be challenged in case it is established that such finding has been arrived at by ignoring any material evidence or misreading the evidence. Where there is no proper evidence ignored the finding of facts by the 1st Appellate Court can be set aside. Reference can be made to P L D 1971 S C 189, 1980 S C M R 760 and P L D 1959 Lah. 826. As discussed above, I have observed that the 1st Appellate Court has completely misread the evidence by ignoring material facts. In the circumstances, I would be justified to set aside the finding of the First Appellate Court.

8. The learned counsel for the appellant contended that the First Appellate Court has failed to take into consideration entire evidence which proves the bona fide requirement of the appellant. The appellant had stated in his application, that he had purchased the house for his own bona fide use and occupation and he requires it in good faith. From the evidence, it is clear that prior to the pruchase of this house he was residing at Orangi in a rented house with 11 persons including himself. All of them were living in a joint family system. He himself shifted in a portion of the ground floor premises in which the respondent is a tenant of the first floor. Presently the appellant is occupying two rooms and according to the appellant five persons are living there. The other six persons are still residing at Orangi. According to the appellant the house in which he is residing is insufficient. The appellant's father was also examined who has stated the same facts. He has given details of the family members that he has four sons of which two are married. He has his wife and four granddaughters. It is not clear that the four granddaughters are the daughters of the appellant. It is however sufficiently established that the appellant is a married person and has old parents. The appellant's brothers, the wife of one of his brothers and their children cannot be termed as; the family members of the appellant. However, the parents cannot be excluded from the category of persons whose requirement may be included within the meaning of appellant's own use. It has, therefore, to be considered whether two rooms accommodation in possession of the appellant is sufficient to cater the needs of the appellant and his parents. The appellant is a young man who is married and is a Bank officer. If the parents of the appellant came to live with the appellant then surely two room accommodation will be insufficient to satisfy the requirements of the appellant.

9. The learned counsel for the respondent has referred to Mumtaz Humayyun v. Major Habibur Rehman P L D 1969 Lah. 886 where it was held that the word 'occupation' read with word 'own' under section‑13 (3) (a) (i) (a) means that the need of the landlord should be such which should compel him to occupy the building himself physically. In the present case the appellant has nowhere stated that he wants the disputed premises to accommodate his family members separately. He has all along maintained which has been corroborated by his father that the appellant has been living with his parents and other brothers in a joint family system. The appellant, therefore, needs the premises for living jointly with his parents and not to put them separately on their own in the disputed premises. In these circumstances in my view the judgment quoted by the learned counsel for the appellant is completely distinguishable.

10. The learned counsel for the respondent contended that the respondent can be evicted only if the respondent requires the premises for his physical occupation and not for his parents or other relations who are not family members. Before considering this argument it may be clarified that I am taking into consideration the requirement of the appellant, his wife and parents. The contention of the learned counsel for the respondent is based on a narrow interpretation of the words 'for his own occupation and will restrict the requirement of the landlord only to his physical occupation and would not include the requirement of such family members who are dependent on the landlord. In Abdul Salam v. Dr. Najma Pervaiz 1976 S C M R 52 it was held that personal need of the landlord includes need of those dependent on him including needs of family members. This view was followed in Suba v. Sirajuddin PLd 1977 Lah. 1263, Mohammad Abbas v. Mst. Khalida Khatoon 1979 CLC 660, Tahir Ali v. Mansoori Begum and 4 others 1980 CLC 1332. In the last case it was held that "the expression 'for his own occupation' as it occurs in section 13 (3) (i) (a) of the Urban Rent Restriction Ordinance, 1959 has received a liberal interpretation to include not only the need of the family of the landlord, dependents and the persons, essential for such occupation, but also all other genuine requirements of the landlord including better and healthier accommodation vide Adamali Hasan Ali v. Rabab Bai P L D 1966 Kar. 408 and Adamali Hasanali v. Rabab Bai P L D 1967 Kar. 437. Therefore, the consensus is that the expression 'own occupation' is to be liberally construed to include the requirement of the dependents and family members of the landlord. In the present case the appellant requires the premises as he wants to keep his father and mother with him, who have been residing in the same manner even in the house in which the appellant was previously residing. At the time the evidence was recorded in the year 1975 his father was 66 years of age and today he would have attained 76 years. The old parents require the company of their children and if a son wants to keep them and maintain them with himself this would be his own requirement. The requirement of a landlord has to be assessed in the light of his status in life, moral, social and legal obligations. The Islamic way of life creates an obligation on a son to maintain his old parents. The Holy Quran enjoins upon the Muslims to be kind, affectionate and give company to the parents in their old age. These injunctions of Islam have been taken note of by my learned brother Naimaddin, J. in Suit No. 236 of 1976 ‑Muhammad Nawaz and 4 others v. Iltaf Rasool and 2 others. This was a case under the Fatal Accidents Act in which the parents had claimed compensation for the death. of their 8 years old son who was killed in an accident. After a review of the case law which enumerate the principle that damage could be granted where the child was either giving some help to his parents or where the child was about to earn; it was observed as follows:‑

11. "Further, economic and fiscal policies, political and social conditions in a country do vary from time to time and do directly or indirectly affect income or opportunities of employment or nature of service to parents or family. In assessing compensation the normal expectancy of life is also taken into consideration, which again is based on certain amount of guess‑work. Lastly, the answer to the question whether the child would have been helpful or useful to his parents or not, would also depend on the social or economical conditions in which it was living, way of life it was following, the religion which it was professing, for in oriental or Muslim society service to or maintenance of parents by their children or vice versa is must as it is an article of faith with every member of Muslim family. Here I may quote English translation of three verses from Holy Quran which enjoins every Muslim to be kind and give company to parents, which in my opinion, imply material support and maintenance:

12. "The Lord hath decreed that ye Worship none but Him

13. And that ye be kind

14. To Parents. Whether one

15. Or both of them attain

16. Old age in thy life,

17. Say not to them a word of contempt, nor repel them,

18. But address them

19. In terms of honour.' (S.XVII‑23)

20. 'And kind to his parents,

21. And he was not overbearing

22. 'Or rebelliun'. (S.XIX‑14)

23. 'We have enjoined on man

24. Kindness to his parents.

25. In pain eid his mother.

26. Bear him, and in pain.

27. Did she give him birth.

28. The carrying of the (child)

29. To his weaning is

30. (A period of) thirty months.

31. At length, when he reaches

32. The age of full strength

33. And attains forty years,

34. He says '0 my Lord

35. Grant me that I may be

36. Grateful for Thy favour which Thou hast bestowed

37. Upon me, and upon both

38. My parents, and that I

39. May work righteousness

40. Such as Thou mayest approve,

41. And be gracious to me

42. In my issue. Truly

43. Have I turned to Thee

44. And truly do I bow

45. (To Thee) in Islam!'

46. (S.XLVI‑15)

47. Further, it is common experience that in Muslim Society poor parents and other members of the family are normally maintained by their children and parents also maintain their children irrespective of their ages till they (children) start earning. In my opinion, what may be termed in Continental Society under certain conditions a merely speculative possibility may not be so in our society at a given time." The moral, social, religious structure and the society in which a Muslim is born casts a duty upon the son to maintain his old parents. If a son observes these rules or for their fulfilment requires accommodation for keeping his parents with him and maintain them it shall be deemed to be the landlord's own use and personal need. The appellant has fully established that he wants to keep his parents with him, maintain them and thus requires the disputed premises. The impugned Judgment passed by the learned First Appellate Court is set aside. The respondent is granted six months time from 8‑4‑1985 to hand over vacant possession of the disputed premises, to the appellant.

48. The appeal is allowed

49. A.A. Appeal allowed