QAMRUDDIN Versus HAKIM MAHMOOD KHAN

1. MIAN BURHANUDDIN KHAN, J. ‑‑In this appeal leave was granted by this Court per order, dated 16‑3‑1983 to consider whether the learned High Court Judge has misread the evidence on record, for the petitioner in his statement categorically stated that ha owns "one more shop which is also on rent to somebody at Rs.100" and that "his other son used to deal in carpet business".

2. Appellant Qamruddin filed an ejectment application against the respondent on the ground that he needed the shop bona fidely for personal occupation and that the cause of action arose in the first week of July, 1978 when the respondent failed to vacate the shop, after notice to him.

2. Respondent was in occupation of shop No. G/2095, Mukhi Garden, Tando Yusuf Road, Hyderabad per agreement dated 17‑11‑1976 whereby he had undertaken to vacate the‑ said shop as and when required by the appellant on one month's notice. The appellant accordingly served a notice on 8‑6‑1978 on the respondent calling upon him to vacate the said shop as the same was required by the appellant for his personal bona fide use. It is alleged that the respondent did not honour his commitment and the appellant was, consequently, constrained to file ejectment application in the Court of Civil Judge/Rent Controller, Hyderabad. Contest by the respondent led to the framing of the following issues:

(a) whether the applicant /appellant requires the shop for his personal use

(b) what should order be

3. The learned Rent Controller found both these issues in favour of the appellant and allowed the application directing the respondent to vacate the shop, in dispute, within one month from the date of the order. Respondent filed First Regular Appeal in the Court of Additional District Judge, Hyderabad who accepted the appeal with the result that the application of the appellant /landlord stood dismissed. Thereafter the appellant filed second appeal in the High Court which was dismissed vide the impugned order, dated 30‑1‑1983.

3. We have heard the learned counsel for the parties at length. On going through the record we find that the learned Rent Controller, under issue No.1 reproduced the statement of the appellant wherein he categorically stated that after retirement from Government Service he was in need of the shop, in dispute, for running business of a General Store to earn his livelihood and that out of his two grown up sons he wanted to engage one in his business. The learned Rent Controller held that the appellant is supported on this score by his witness Abdul Rahman who has not been cross‑examined at all and decided the issue in favour of the appellant. The learned Additional District Judge, while setting aside the finding of the Controller on the said issue, observed as under:

4. "After the retirement from the service, a Government servant is forced to vacate the Government accommodation and then he needs accommodation suitable to his needs. But for a non?residential building or a shop, the need of a retired Government servant for a shop cannot be termed as genuine automatically because all the retired persons do not run shops, or not capable of running any shop. Running of the shops required two requisite conditions i.e. capital and some experience in the field of business. Retired Government servant has, therefore, to prove that he possesses these two necessary requisites for running a shop".

5. The learned Additional District Judge also referred to the admission made by the appellant that he had another shop but this fact had been suppressed by him, and, therefore, his case was not based on bona fide requirement for personal use.

6. The learned High Court Judge did not agree with the finding of the learned Additional District Judge and made the following observation in his impugned judgment;

7. "In my view the reasoning of the learned 1st Appellate Authority on this point is not correct. It has been proved by evidence that the appellant had retired from Government service and that he was jobless. In these circumstances if he wanted a shop for his use in which he wanted to carry on some business. It was not necessary for the landlord to establish that he had previous experience of business. If requirement of having previous business experience was mandatory, a retired Government Servant would be debarred from claiming a shop which he had rented out on the ground of personal requirement. The law does not place any such embargo on a landlord".

8. Regarding the question of having enough capital to start business the learned High Court Judge held as follows:‑

9. "As regards the question of capital, in my view, the landlord in the present case, had given evidence which was corroborated by the witness Abdul Rahman that he wanted the shop for starting the business of a general store and it was not necessary for the landlord to give evidence that he had capital available for starting such business. The appellant was not cross-?examined on this point at all. If it was the case of the respondent that the appellant did not have any capital or that he was not in a position to arrange for sufficient capital to start the business of a general store in the shop in question, the appellant should have been cross‑examined. In the absence of any cross‑examination on this point, it cannot be presumed that the appellant was not in a position to arrange for the requisite funds".

10. The learned Judge, however, disallowed the appeal on the question that neither in the ejectment application, nor in the notice given by him to the respondent before filing the ejectment application, he mentioned the fact that he owned two more shops. Consequently, in the evidence of the respondent it has been alleged that apart from the shop in question, there is another shop built on the top of the shop in question, in which one of his sons carries on carpet business and that appears to be an admitted position that the appellant had three shops namely one shop on rent with the respondent, second on rent with another tenant, and the third shop is located on the top of the house and that this fact that he owned three shops having not been disclosed in his pleadings or evidence, disentitled him to seek eviction of the respondent. The learned Judge in the concluding para of the judgment observed that this fact that a landlord had other shops rented out to other tenants, would not be sufficient to non‑suit him but in the instant case the three factors, two mentioned above, and the third in conclusion thereof, would be sufficient to reject his application for ejectment.

4. We have examined the contentions of the learned counsel for the appellant and agree that none of the facts would militate against the stand of the landlord to seek eviction of his tenant from the shop, required for his personal use and non‑disclosure of this fact in his petition would, in no way, cut at the root of the appellant's case because it is neither requirement of any law nor any rule of evidence that the landlord shall disclose all the properties which he has rented out to other tenants. All that he has to show to the Court is that he requires the shop of a particular tenant for his personal use, and the choice is his as regards the suitability of the said shop which he requires for his personal use. The only question which would disentitle a landlord to such a relief would be a case where he is in possession of other equally suitable shop in the same locality, or had rented out a shop after the institution of eviction case and has contumaciously concealed the fact in his application or statement at the trial. In the present case the appellant stated as under:

11. "Opponent is my tenant since 5/6 years. In the beginning of tenancy the monthly rent was Rs.40. It is a fact that I own one more shop which is also on rent to somebody at Rs.100 I have stated in my rent application that I need the shop for my own personal bona fide use. One of my eldest son is at Karachi. He is independent. My other son used to deal in carpet business. But now a days he is confined to bed. It is not a fact that I had demanded enhanced rent at Rs.100 p.m. from opponent who denied and I file the present application."

12. Reading this we do not find concealment of any fact, on the part of the appellant. However, the learned counsel for the respondent raised an objection about the maintainability of the appeal on the ground that Qamruddin landlord died during the pendency of the first appeal, and his bona fide requirement of the shop in question, for his personal use, therefore, came to an end. Cases cited are Abdul Rahman v. Fazal Karim and another 1980 S C M R 758; Dr. Major Abdul Ahad Khan v. Soofi Muhammad Yasin and Brothers P L D 1984 S C 205; and Muhammad Aslam through his L.Rs. v. Wazir Muhammad P L D 1985 S C 53.

13. In 1980 S C M R 758 the Rent Controller dismissed Fazal Karim's eviction application but Fazal Karim's appeal was allowed by the learned District Judge on 7‑7‑1971 on the ground that Fazal Karim had proved his requirement for the demised premises. The petitioner feeling aggrieved, filed a second appeal in the Sind and Baluchistan High Court against the order of eviction thus passed against him. And it was during the pendency of this appeal that Fazal Karim died, but the petitioner's eviction had been ordered only because Fazal Karim had proved that he himself wanted to run his business in the shop.

14. Fazal Karim landlord died during the pendency of appeal before the High Court and on the applications, filed by the landlord as well as the tenant, permission was sought to produce evidence to show that the demised premises was not required bona fidely. The learned single Judge held that the petitioner had not made out any case for producing further evidence and dismissed the appeal. The case was sent back by this Court to the High Court to record the evidence of both the parties to establish whether the premises in dispute, was required by the heirs of the landlord Fazal Karim, or not.

15. In P L D 1984 S C 205 it was held by this Court as follows:

16. "In the circumstances, if the case for requirement of the premises had been solely for the purpose of the son of the landlord, it could have been argued that on the death of the landlord, the accommodation available with the deceased landlord could have been utilised by his son for his practice and in such a case, the demand for requirement would have ceased to be valid. But in the case of personal requirement for the joint use of the landlord and his children, his death does not necessarily affect the children's requirement. It was so held in the case of Mst. Jamila Latif v. Ghulam Yazdani Khan 1981 S C M R 637, and Abdul Hayee v. Mst. Riaz Begum 1979 S C M R 372"

17. In P L D 1985 S C 53 this Court has held as follows: ‑---

18. "It is clear, therefore, that personal actions connected with the individuality of a person do not survive him (actio persohalis moritur cum persona). There is, however, an important exception to it i.e. where personal actions have ‑matured into a decree or become part of the estate of the deceased. As Salmond has put it "A right vests when all the facts have occurred which by law, occur in order for the person in question to have the right" In the words of Paton "Every right arises from title, when all the investitive facts which are necessary to create the right, have occurred, the right is vested" by a judgment, decree or order, as the case may be, a personal action gets perfected and becomes a part of the estate of the deceased. The right to immediately possess a property subject to its being tested in appeal, is a tangible, valuable property right which comes to vest in the owner of the property, and on his death, passes on to his heirs. The heirs inherit his estate alongwith the vested right to obtain actual physical possession of the demised premises with the attaching limitation of law in the form of conditions attaching to such an order of possession. The legal representatives can execute the order of the ejectment and take the property on the same terms on which their deceased predecessor‑in‑interest was entitled to it".

19. The appellant, in his statement before the learned Rent Controller stated thus:

20. "I want to run a general store in the disputed shop to earn my livelihood. I have two grown up sons also. I want to engage one of my sons in the business"

21. This statement has not been challenged in cross‑examination. This also has not been rebutted by any evidence produced by the respondent. The upshot of the above discussion is that we allow this appeal; set aside the judgments/orders of the 1st Appellate Court and that of the High Court in Second Appeal impugned before us; and restore the order passed by the learned Controller.

22. However, on the request of the respondent's counsel we allow six months time after which the respondent shall voluntarily vacate the disputed shop without resort to execution proceedings.

23. Appeal allowed. Parties to bear their own costs.

24. M . Y . H . / Q‑11 /S ?? ? ????????????????????????????????????????????????????????????????????? Appeal allowed.