AKBAR HUSSAIN Versus ZEHRA BAI

SYED DEEDAR HUSSAIN SHAH, J. ‑‑‑Leave to appeal is sought against the judgment of the High Court of Sindh, at Karachi, dated 12‑12‑2000, passed in F.R.A. 773 of 2000.

Brief facts are that the petitioner is tenant of the respondent in Shop No.2 on Plot No.5‑C, Phase‑V, Defence Housing Authority, Karachi. Respondent Mst. Zehra Bai instituted Rent Case No. 19 of 1998 in the Court of Additional Rent Controller, Clifton Cantonment, Karachi, for eviction of the petitioner on the plea that she needed the shop for her own use as well as that of her son to open a general store.

3. The Additional Rent Controller dismissed the rent application, vide order, dated 25‑4‑2000.

4. The aforesaid order was challenged by way of appeal in the High Court of Sindh, at Karachi, which was allowed by impugned judgment dated 12‑12‑2000. Hence, this petition for leave to appeal.

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5. Mr. N.C. Motiani, learned Advocate‑on‑Record for the petitioner, inter alia, contended that the learned High Court failed to appreciate the facts of the case and misread the evidence on record; that the respondent/landlady admitted in her cross‑examination that she did not need the demised premises for her personal use and occupation, but she required the rented shop for the use arid occupation of her son who was already doing job arid is engaged in business. In support of his contentions he has relied on Nek Muhammad v. Haliz Abdul Hameed (1989 CLC 732) and Muhammad Yousuf v. Mrs. Noor Jehan Bi through Attorney (2000 CLC 1252).

6. On the other hand, learned counsel for the respondent has supported the impugned judgment‑and submitted that the petition may be dismissed. In support of his submissions he has relied on Col. (Recd.) Dr. Wahaj A. Mirza v. The District Judge, Karachi and 2 others (1983 CLC 1036) and Mst. Firdous Sabir v. Haji Mushtaq Ahmed Pervaiz (1994 SCMR 355).

7. The provisions of section 17(4) (b) (i) (ii) (iii) and the provisions laid down in section 17 of the Cantonments Rent Restriction Act, 1963, read as under:

"Subsection (4). A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession:‑

(a) ??????? in the case of residential building, if‑‑

(i) ???????? he requires it in good faith for his own occupation or for the occupation of any member of his family;

(b) ??????? in the case of a commercial building, if‑‑

(i) ???????? he requires it in good faith for his,own use."

As far as there is no dispute that the demised premises is a. commercial premises and the landlady or landlord can get ejectment of toe tenant on her or his bona fide personal need. The landlady was examined by the Rent Controller. During trial, in cross‑examination, she in unequivocal terms stated on oath asunder:‑‑ ' ‑

"It is correct that I am Pardah‑observing lady and I never did not job or business during entire life; and

' "I have not filed the case for my personal use'."

8. In view of the above provisions of section 17(4) and the admission of the landlady it would be advantageous to dilate upon the case‑law cited by the learned counsel for the parties. The case of Nek Muhammad (supra) pertains to Sindh Rented Premises Ordinance (XVII of 1979 wherein the ejectment was sought on the ground of personal requirement, and the learned Judge observed as under:‑‑

"It will be significant to note that the Legislature had inserted word 'own' between word 'his' and 'occupation' or 'use' with a purposeful meaning. Every word in a statute is to be given its meaning and no word is to be taken as being redundant. 'Own' when used as an adjective means belonging to oneself, exclusive, individual, particular, peculiar, private and proper according to Corpus Juris Secundum. The words "'for his own occupation or use" used in subsection (2)(vii) of section 15 of the Ordinance would simply mean for the exclusive or individual occupation or use of the landlord."

In the case of Muhammad Yousuf (supra) the learned Single Judge of High Court held that:‑‑

"The landlord under Cantonments Rent Restriction Act, 1963, could seek ejectment of tenant from residential building if same was required in good faith by landlord/landlady for his/her own occupation or for occupation of any member of his/her family, but position with commercial premises, would be different.‑‑‑Need of spouse, children of landlord/landlady or any other person in respect of commercial premises was irrelevant and it had to be shown that the premises was required by landlord/landlady for his/her own use."

The case of Col. (Retd.) Dr. Wahaj A. Mirza (supra) is under Cantonments Rent Restriction Act (XI of 1963). In this matter the petitioner approached the High Court through a Constitutional petition, which was dismissed, holding that in Constitutional petition the factual controversies with regard to f6videtice and documents cannot be discussed or dilated upon. However, the learned Judge observed that:‑‑

"The second contention of the learned Advocate for petitioner, that under provisions of section 17(4)(b), respondent No.3 could only seek ejectment of the petitioner on ground of his own personal and bona tide need and not on account of the need of his wife, in my opinion, has great force. It is clear from the wordings of section 17(4)(b) read with section 17 (4)(a)(1) of the said Act, that Legislature deliberately restricted the scope of section 17(4)(b) for purposes of ejectment from commercial premises. In view of this the conclusion of the learned Rent Controller that need of wife, would include respondent's own need, on the basis of case reported in 1976 SCMR 53 is misconceived, as the said case relates to the interpretation of the provisions of West Pakistan Urban Rent Restriction Ordinance, 1959, which are different from Cantonments Rent Act. However, I find that learned Appellate Court also fail in this error of law, but I find from impugned judgment, that the learned Appellate Court also considered the statement of the respondent No.3 on record and arrived at conclusion of fact, that respondent No.3 required the premises for his own use as well as not for exclusive use of his wife. This is finding of fact and if this finding can be sustained on the basis of the evidence adduced by respondent No.3, then, of course it cannot be assailed, by this petition in my opinion."

So far the provisions of section 1.7(4) pertain to the commercial premises, Legislature had put definite restriction that landlord or landlady could seek ejectment of the tenant for his or her personal bona fide need. In our opinion, the parties approached the Sindh High Court by way of Constitutional petition, and keeping in view the limited scope of the writ jurisdiction, the same was dismissed with the observations referred to hereinabove.

The case of Mst Firdous Sabir (supra) is under Cantonments Rent Restriction Act (IX of 1963), wherein the Court observed that the landlady in her application for ejectment had categorically stated that shop already in her occupation was not sufficient for her requirement and she needed two shops in question for extension of her business. The husband of the landlady after his retirement was looking after the business, which clearly shows that the landlady was already in business and she wanted the expansion of her business, for which she also intended that her husband after retirement would join the business.

In the case in hand it is not mentioned that the landlady/respondent herself would do the business, whereas on the contrary she in unequivocal terms stated that she never did any job or business and she did not tile the case for her personal use. The provisions of Cantonments Rent Restriction Act, referred to above and the case‑law discussed in the above part of the judgment support the contentions of the learned counsel for the petitioner, and the Cantonments Rent Restriction Act has completely put restriction that ejectment from the commercial premises could only be made when personal bona tide requirement of landlord or landlady for his or her occupation is proved. The admission of the landlady has clearly shattered her own case and she was not able to prove her bona fide requirements of the demised premises.

10. We have considered the material available on record and after going through the case‑law, we are of the firm opinion that the impugned judgment of the High Court is not sustainable in the eye of law.

11. For the foregoing reasons, we accept this petition, convert it into appeal, allow the same, set‑aside the impugned judgment of the learned High Court and restore that of the Rent Controller.

Q. M. H./M.A.K./A‑184/S ????????????????????????????????????????????????????????????????? Appeal allowed.