THE DARUL ULOOM NAIEEMIA TRUST vs MUNIR AHMED

' This appeal is from the order of IXth Senior Civil Judge and Controller, Karachi, dated 29th August, 1981, whereby he dismissed the application under section 15 of the Sind Rented Premises Ordinance, 1979 filed by the appellant, for eviction of the respondent from the premises, being first floor of House No, 62, Block No, 1, Liaquatabad, Karachi, in the following circumstances.

2. The appellant is a Trust registered under the Societies Registration Act, 1860. The respondent is the tenant of the premises. The premises was donated to the appellant by its owner namely, Abu Bakr Khan under a duly registered Trust Deed, dated 17th September, 1979.

3. The appellant sought the eviction of the respondent on the grounds that the Trust intended to run a `Madaresa' in the premises to impart religious education to the children of the area since the premises in question has been donated to the Trust for using the same for charitable purposes and that the Trust also intended to start in the premises "DARS-E-QUR'AN" for adults of the 'Mohallah'.

Accordingly, the appellant claimed that it required the premises in occupation of the respondent, in good faith for its own personal bona fide use for charitable purposes to carry out its aims and objects.

4. The respondent in his written statement denied the claim of the appellant and pleaded that the appellant wanted to change the character of the premises by converting the same to commercial use. Therefore, it was pleaded that application was not maintainable.

5. On the pleadings of the parties, the Controller framed the following issues.

"(1) Whether the premises are required by the applicant bona fide and in good faith ?

(2) What should the order be ?"

6. In the affidavit filed by the respondent, he stated that the appellant did not require the premises for personal bona fide use as there is a big Madaresa in the locality adjoining the mosque and the children of the 'Mohallah' went there for religious and primary education.

7. The Controller in his order while dismissing the application stated that after considering the case of both the parties, he was of the view that although the opening of a `Madaresa' and starting Dars-e-Qur'an in the premises was a good idea, yet it could not be said that the appellant required the same for personal bona fide use. He further observed that "as for the religious affairs are concerned, no where Islam has permitted to put any bona fide resident or his family or even any body in hardship, difficulties and inconvenience just to impart religious education". He also observed that "from the question put in cross-examination it is clear that there exists a `Madaresa.

And Mosque in the locality where the appellant can open religious education without any binderance". "He, therefore, concluded that the premises in dispute was not required bona fide by the appellant for the personal use.

8. Aggrieved by the order as states in the beginning the appellant has filed this appeal.

9. I heard Mr. Ismail Kassam Advocate for the appellant and Mr. S. M. Afzal Advocate for the respondent.

10. Mr. Ismail has contended that the order passed by the Controller is not in accordance with law while Mr, Afzal has contended that the application was not maintainable as the appellant was seeking the premises for commercial purposes while admittedly it is being used for residential purposes.

11. Considering the respective contentions of the learned counsel for the parties, it is not disputed before me that the appellant is the landlord within the meaning of section 2 (f) of the Ordinance as the Trust is not excluded from the definition nor is it claimed that premises or properties of this class are excluded from the operation of all or any of the provisions of the Ordinance.

12. Since the Ordinance applies to Trust premises, therefore, its provisions are to be construed keeping in view the nature of the Trust, its objects and needs. Thus in the case of Trust properties, the trustees could require the premises either for their own residence on the premises to carry out the Trust more effectively or for the use of beneficiaries or for the purposes of Trust, say, to open the office of the Trust or to carry out the object of the Trust.

13. In the present case, the Trust, required the premises for running a 'Dini Madaresa' to impart religious education to the children of the area and to give Dars-e-Qur'an to adult residents of the area. It is not disputed that the premises has been donated to the Trust for using the same for charitable purposes and to run a `Dini Madaresa' to impart religious education to the children of the area and to give Dars-e-Qur'an to adult residents of the area are charitable purposes, if done without charging any fee and it is nobody's case that the trustees after opening a Madaresa wish to charge any fee. It is well known that in our country, for imparting religious education in `Dini Madaresa' no fee is charged from the students.

14. The reason given by the learned Controller that Islam nowhere permits to cause any bona fide resident or his family any hardship, difficulties and inconvenience just to impart religious education, is not proper for it is not a question of causing any bona fide resident or his family any hardship, difficulties and inconvenience bit to advance the objects of the Trust, which being charitable are bound to benefit a large number of people. Thus their benefit should weigh more than the mere hardship, difficulties or inconvenience to a tenant of the Trust property or his family.

The objects of the Trust should not be allowed to fail as far as possible. Further, if the reason advanced by the learned Controller for refusing eviction is accepted then no tenant could ever be evicted from the rented premises by a Trust on that ground.

15. The Controller has also relied on the statement made in the cross-examination that there exist `Madaresa' and Mosque in the locality where the applicant could open religious institution without any hinderence. It would suffice to say that no such pleas was taken by the respondent in the written reply filed by him and it cannot be said that what is the capacity of that Mosque or `Madaresa' and whether that is sufficient to accommodate all the children in the area wishing to get religious education, and therefore, no reliance could be placed thereon. Further, in the absence of such plea in the written reply no amount of evidence could be looked into.

16. Taking up the contention that the application was not maintain-D able as the appellant wanted to convert the residential premises into non-residential premises, it may be stated that a distinction was made between a residential and non-residential building in the definition clauses

(d) & (g) of section 2 of the Sind Urban Rent Restriction Ordinance, 1959 or in section 3 (a) (i) and section 3 (a) (ii) of the said Ordinance but such distinction has been done away with under the Sind Rented Premises Ordinance, 1979, because in the new Ordinance no provisions similar to those contained in sections 2 (d), 2 (g), or 13 (3) (a) (i) and (ii) have been made.

' Mr. Afzal cited Ajmal Ahmad v. Mst. Sultana Jehan Begum (1), Suba v. Siraj Din (2) and Raja Qurban Khan v. Begum M. M. Sharif and another (3). But these cases are on section 13 of the Sind Urban Rent Restriction Ordinance, 1959 and for the aforesaid reason are distinguishable.

17. I therefore, allow the appeal. However, in the circumstances of the case I grant the respondent more than normal time of one year to vacate the premises and put the appellant into possession thereof.

' The parties shall however, bear their own costs in the circumstances of the case.

(1) PLD 1974 Kar. 319 (2) PLD 1971 Lah. 1263

(3) 1980 SCMR 590