MUHAMMAD YOUSUF vs Mrs. NOOR JEHAN BI through Attorney

' This appeal is directed against the order of the Additional Rent Controller, Clifton Cantonment, dated 18-6-1994, allowing the respondent's application for ejectment of the appellant from a shop on ground floor, commercial area "A" Defence Housing Authority, Karachi.

2. It appears that the respondent sought ejectment of the appellant on the ground that the shop in question was required for the bona fide personal need of her husband and sons. It was stated that the respondent's husband was carrying on business of lumbering in a rented shop, one of her sons was a physiotherapist and intended to open a private clinic while four of her sons were jobless and .Intended to commence business but are unable to do so for want of accommodation.

3. The appellant resisted the application alleging that the same was not maintainable under section 17(4)(b) of the Cantonment Rent Restriction Act, the appellant had paid substantial amount of Pugree and could not be ejected without refund of the same and that the respondent did not, in good faith require the demised premises. The learned Rent Controller recorded his findings against the appellant on all grounds and directed his ejectment.

4. While all the findings so recorded have been questioned I requested the learned counsel for the parties to address the Court on the question of maintainability of the ejectment application first because a finding on that question would go to the core of the matter. Mr. Abdul Rasheed, learned counsel for the appellant drew rhy attention to a clear distinction between clauses (a) and (b) of section 17(4) of the Cantonment Rent Restriction Act, 1963, which, unlike the Sindh Rented Premises Ordinance, makes a distinction between residential and commercial premises for the purposes of conferring the right to seek ejectment of a tenant on the ground of personal need. He pointed out that under the Cantonment Rent Restriction Act, though a landlord could apply to the Rent Controller, to be put in possession of a residential building if the same was required in good faith for his own occupation or for the occupation of any member of his family, the position with commercial premises was somewhat different. In such cases, the need of a spouse a child or any other person was irrelevant and it had to be shown that the premises were required by the landlord for his own use.

5. In support of his contention, learned counsel relied upon the judgments of this Court in Ghayoor Alam v. Muhammad Jameel 1983 CLC 1274 and Nek Muhammad v. Hafiz Abdul Hameed 1989 CLC

732. In the first case it was held that the restrictive provisions of section 17(4)(b) clearly shows that the view to the effect that the need of a wife would also include a landlord's own need was totally misconceived. In the second case Imam Ali Kazi, J. (as his Lordship then was) emphasised expressed "own" and applying the principle that every word of the statute had to be given effect, held that, the need of any other person could not be treated as a ground for ejectment of a tenant from commercial premises under the above Act.

6. Mr. S.M. Akhtar Rizvi, learned counsel for the respondent on the other hand attempted to defend the order of the Rent Controller and argued that the need of the wife could be legitimately taken to be that of the husband and in view of two reported judgments of the Honourable Supreme Court the cases cited by Mr. Abdul Rasheed could no longer be treated as good law. He relied upon the case of Ghulam Mohiuddin v. Nazir Bibi and others 1983 SCM R 715, which was a case under then West Pakistan Urban Rent Restriction Ordinance, 1959, where the requirement of a landlady for bona fide use of the disputed shop by her husband was not disturbed. He also referred to Muhammad Zaman v. Hasbunnisa 1991 SCM R 1307, where leave to appeal against a judgment of this Court, wherein section 17(4)(b) of the Cantonment Rent Restriction Act, was found to be applicable to commercial properties, where husband and wife intended to start joint business, was refused.

7. With profound respects the above pronouncement of the Honourable Supreme Court appear to be clearly distinguishable and do not support the respondent's case. In Ghulam Mohiuddin's case their Lordships declined to grant leave to appeal, where the petitioner was unable to show any error in the finding of fact recorded by the Courts below to the effect that the bona fide requirement of the respondent's husband stood established. The legal question whether a landlady could seek ejectment of tenant on the ground that of the personal need of her husband was neither raised nor considered. In Muhammad Zaman's case the provisions of section 17(4)(b) of the Cantonment Rent Restriction Act were found applicable because of a finding of fact to the effect that the husband and wife (landlady) intended to start joint business. It goes without saying that if a landlord/landlady intends to start business in the demised premises after ejecting a tenant.

Jointly with a family member or even an outsider, her bona fides cannot be doubted.

8. Mr. Akhtar Rizvi also attempted to distinguish the cases cited by Mr. Abdul Rasheed by urging though it had been held that a husband could not seek ejectment of a tenant on the ground of peed of the wife, the contrary was not true. He emphatically argued that in a Muslim Society the need of the husband is invariably the personal need of the wife.

9. I regret I am unable to subscribe to this view. In the first place it cannot be overlooked that the Muslim Law has always recognised independent property rights of husband and wife and the concept of joint ownership on account of marriage does not exist in our legal system. Secondly when the statute in question makes specific distinction, enabling ejectment of a tenant from a residential premises on the ground of need of any family member, but restricting such right to eject in the case of a commercial premises only in the event of the need of landlord himself, the Courts cannot stretch its meaning to defeat the legislative intent. Thirdly while it may be possible to seek ejectment of a tenant, when a wife intends to conduct a joint business with her husband, but this is so because every landlord has a right to carry on business in partnership and such arrangement would not negate the concept of self-occupation. Fourthly the argument put across by Mr. Rizvi would amount to creating a distinctive on the basis of sex alone which is forbidden by Article 25 of the Constitution.

10. Since the ejectment application is itself found to be not maintainable it is not necessary to consider the factual aspects of the bona fides of the respondent's husband and sons. I would, therefore, allow this appeal and recall the impugned order of the Rent Controller.