ASSISTANT COMMISSIONER,GUJRANWALA Versus PARVAIZ AKHTAR

This judgment will dispose of not only the present appeal but also Cross- Objection No.5 of 1986 as both arise from an order dated 27-2-1986 of the learned Rent Controller, Multan Cantt. whereby the appellants' application for ejectment of the respondent-tenant from the disputed shop was dismissed.

Initially the shale shop belonged to Mst.Nazir Akhtar, appellant No.3 who gifted 2/3rd thereof by a registered deed dated 3-12-1983 in favour of the other two appellants, who were her own sons. Since it was already occupied by the respondent as tenant, they sent him a notice of the gift through registered post for purposes of attornment. His ejectment was sought on two grounds firstly, that he had committed default an making payment of rent at the rate of Rs.1,000 per month for the period from January, 1984 to April, 1984, and secondly that the shop was required by petitioner No.1 who having become a Doctor needed it to run a private Clinic.

4. The respondent contested the petition pointing out that it was not based on good faith inasmuch as even earlier similar petitions were filed by appellant No.3 who had ultimately withdrawn them on increase of rent. He denied to be tenant of appellants Nos.1 and 2 until any Tamleek in their favour was proved and perhaps for this reason denied their ownership as also right to get him ejected for Penal need. He maintained that even appellant No could not ask for his eviction on the ground of personal need and further that since a small factory was established in the shop, it was no more amenable to the jurisdiction of the Rent Controller. He claimed that sub-division of the shop in different shares had mad, the application for ejectment untenable. He traversed the alleged default pointing out that on account of refusal to receive the rent on the part of appellant No.3, he has deposited the same with the Rent Controller, Multan Cantt. and that nothing was due from him.

5. In their replication the appellants-petitioners denied if there was am small factory in the shop or that it had been physically sub-divided into any shares. They observed that the gift was a family arrangement to whist; respondent-tenant had no right to object. They repudiated the plea that the petition was brought for increasing rent.

6. The following issues were framed by the trial Court:-

(1) Whether the respondent has been paying or tendering the rent regular15 '

(2) Whether the premises in dispute is bona fide required for personal use of the applicant?

(3) Whether the instant petition has been filed with mala fide intention for only to enhance the rent of the premises in dispute. If so, to what effect?

(4) 'Whether this Court lacks jurisdiction to try the petition in view of the preliminary objection No.5 of the written reply?

(5) Whether the description of the said property is not correct. If so, to what effect?

(6) Whether the instant petition is not maintainable in view of to preliminary objection No.7 of the written reply?

(7) Relief.

7. The petition was dismissed primarily on the grounds that the gift having been made without sanction of the Cantonment/Military Authorities w,6, ineffective to confer title on the donees; that the property was subdivided against the relevant rules; that the petition was mala fide as earlier appellant No.3 has withdrawn two similar petitions on increase of rent; that another shop closely was lying vacant in possession of the appellants; and lastly that a young Doctor like appellant-petitioner No.1 did not really need such a large accommodation consisting of a shop and a residential portion.

8. Learned counsel for the appellants vehemently assailed the above findings pointing out that what Rule 26(v) of C.L.A. Rules, 1937, relied upon the learned Rent Controller prohibited was sub-division by means of partition of a holding into two or more parts by physical delineation thereof and that the rule was wrongly applied to the facts in hand. He submitted that the Tamleeknama was only a family arrangement, of course, conveying two/third of the dispute' premises to appellants Nos.1 and 2, but there was no element of physical partition or physical delineation of respective parts of the shop. He stressed that it remained to be the same single unit in the respondent's own possession and that indeed it was presumptuous on his part to plead that transfer of two/third spare thereof actually amounted to its physical partition by metes and bounds.

9. I think the argument appears to be indefensible inasmuch as there was nothing on the record to suggest that by merely executing Tamleeknama the mother had partitioned off various portions of the shop in favour of her two sons. For all purposes it was still jointly held by the same tenant as one unit. The learned Rent Controller misdirected himself in making an assumption, which on the face of it, was unsustainable. Indeed he was influenced by this single fact to conclude that petitioner No.1 had not become owner of the shop so as to ask for the tenant's eviction. The Tamleek conferred complete title on the donees but they may be precluded from actually partitioning the property, and obviously until the same is done, they shall remain to be the joint owners thereof.

10. The definition of the landlord as provided in Section 2(g) of the Cantonments Rent Restriction Act, 1963, does not require that he should be the owner. He may be any person who is for the time being entitled to receive rent whether on his own account or for the benefit of any other person. It will be pertinent to note here that entitlement to receive rent was something between the mother and the children in this case, and if the former conferred some sort of B right on the latter to collect rent even on her behalf, they would be as good landlords as she herself. I do not think the Tamleek of the mother in favour of the sons lacked in any manner to entitle them to receive rent even if it could not for some reason pass ownership to them. The document purported to convey not only the title but also a right to receive rent and, therefore, quite adequately established the appellants' status as landlord. The finding of the lower Court on the point is reversed.

11. The next point which weighed with the learned Rent Controller was availability of another shop to the appellant No.1 to run his clinic. No such plea was taken up by the respondent-tenant in his written statement and, therefore, the who!(, discussion about it was irrelevant. it was a question of fact to determine whether that shop was really suitable for the purposes of the appellants. They could not be taken by surprise even if by making an unwary admission, they conceded that such a shop lay vacant. The appellant in his statement as A.W.5 indicated that he had no other shop in which he may establish his clinic. This averment obviously suggested that the small shop lying vacant did not suffice for his purposes. In the matter of personal need the landlord himself is the sole arbiter. This was the rule clearly propounded in Hassan Khan v. Munnawar Begum P L D 1976 Kar. 832; Ghulam Mohyuddin v. Suba Khan P L D 1977 Lah. 1094; Sabu Mal v. Kaka Ram alias Heman Das 1973 S C M R 185 and Mansoor Ahmad v. Bashir Hussain Babri P L D 1977 Lah. 532. There was no reason to disbelieve the version of the appellant either. He stated how he had been working in the Nishtar Hospital without pay for a year and lately on a temporary employment at Khanewal where he had to go daily from Multan. His statement satisfied any objective test as to his personal need as a Doctor and to say that being a new Medical Graduate, he did not need the premises was no more than a caprice. The law is not so stringent as to the personal need of the landlord and that is why his own testimony on the point is invariably considered sufficient to discharge the onus.

12. The learned Rent Controller took the view that the premises in question consisted of a large accommodation including a residential portion and that the same may not be converted into commercial one. The truth of the matter is that the respondent obtained the whole accommodation as a single shop. Even if, therefore he started using a portion thereof for residential purposes, he could not plead that it was not a shop. In the record of the Cantonment Board as well it was shown to be a single shop. User by the tenant of its part for residence would not necessarily change its legal character which shall nonetheless remain to be commercial. A clinic may well need all that accommodation and the appellant's own statement was the final word on it.

13. An argument was raised that the shop was now being run as a factory over which the Rent Controller had no jurisdiction and secondly under the third proviso to subsection (4) of Section 17 of the Cantonments Rent Restriction Act, 1963, it was a building in regard to which two years prior notice was needed. I do not think the respondent can make any capital out of converting the shop into the alleged factory or the type of building mentioned in the third proviso referred to above. In fact the latter provision prohibits conversion of the building for any such purposes except with the consent in writing of the landlord. The respondent has not been able to bring on record any such consent of converting the building either into a factory or to any of the types enumerated in the proviso.

14. Considerable emphasis was laid on the fact that the appellant-lady had even earlier been bringing such applications and withdrawing them on increase of rent. It was considered that the present one being the third in the series was main fide for the same reason. This may be true, and indeed there were documents on the record to show that the lady had dropped previous ejectment petitions presumably on increase of rent. But this time what makes the difference is the fact that her son has become a qualified Doctor. His needs as a professional man could not be easily denied. He had been on a job without pay for a year and was now engaged in a temporary employment at Khanewal which place he daily visits. It was upto his own decision whether to continue his job or establish his private clinic and if he chose the latter, the respondent-tenant could not possibly object to it. This is how previous applications for ejectment or dropping them on increase of rent would not be much material.

15. For all these reasons the finding of the lower Court cannot be sustained. The appeal is accepted and the impugned decision is set aside. Instead the appellants' application for ejectment is allowed. The respondent-tenant shall have four months' period of grace till he actually delivers vacant possession of the shop to the appellants. The cross-objection is also dismissed. The parties shall bear their own costs.

M.Y.H./M-758/L Appeal accepted.