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First Rent Appeal No. 1061 of 1982, decided on 18th December, 1984.
---S. 15--Ejectment--Application of--Maintainability--Held, one of co-owners of property was in position of a landlord and thus could validly file application for ejectment from such property.
---S. 15--Ejectment--Bona fide requirement--Status of legal represen tatives--Ejectment of a house secured in benefit of landlord could enure to benefit of legal representatives after his death while an ejectment of a tenant from a shop secured by landlord could enure to benefit of his legal representatives only if original claim was that landlord needed Shop for his personal use as well as for his family or at least evidence had been led by landlord that he alongwith his family needed Shop In case where no such evidence was on record, ejectment secured for benefit of landlord personally could not be availed of by legal represen tatives of deceased landlord--In such eventuality either appeal of tenant was to be allowed leaving legal representatives to seek their remedy or to remand case to trial Court for decision on need of legal represen tatives.
1981 S C M R 673; 1984 S C M R 200; P L 1) 1981 Kar. 273(275); 1982 C L C 1577(1580); P L D 1981 Lah. 201 and P L D 1984 Lah. 179 ref.
Rehan-ul-Hassan Farooqi for Appellant.
Shahabuddin Memon and Qaiser Qureshi for Respondents.
Date of hearing: 18th December, 1984.
This appeal is directed against the Judgment of XVII Senior Civil Judge and Rent Controller, Karachi dated 14-10-1982 by which the appellant was directed to hand over the possession of shop No. 77, Commercial Area No. 2, Khalid Cloth Market, Liaquatabad, Karachi to the respondent landlord. The respondent had claimed that he and his brothers and sisters had inherited the said shop from his father but he and his two sisters had relinquished their interest in favour of Farooq Ahmed. The property had again devolved upon the respondent and his two sisters and the sisters had relinquished their shares in favour of the respondent and he had become the sole owner of the same. The respondent had claimed that he wanted to start his own business in the said shop. In the written statement the appellant had denied the requirements of the disputed shop by the respondent and had also challenged relinquishment of the shares by the sisters in favour of the respondent. Two issues were framed, whether the applicant is owner and landlord of the property in dispute and whether the applicant needs the property in good faith.
2. The respondent examined himself and produced an affidavit of his sisters Exh. 6 where they had relinquished their interest of the disputed property in favour of Ausaf Ahmed. In cross-examination he had stated that he had been authorised by his sisters to file the case and in support of that he had produced the said affidavit of his sisters relinquishing their rights in his favour. The respondent Ausaf Ahmed had stated in his evidence that he wanted to work on the shop and the same was required by him. There was hardly any cross- examination in respect of the personal needs of Ausaf Ahmed. Mansoor Ahmed, appellant, examined himself and stated that he did not need the premises for his use and that he could use the upper portion viz. room on the shop for his business but he had rented out the said room to some other tenant. In cross-examination he admitted that the upper portion of the shop was being used by the tenant for residence purposes. He denied that he had been rented out the shop for two or three months.
3. The Rent Controller decided that the appellant had admitted the respondent to be the landlord of the said shop and, therefore, he did not give his finding on issue No.1 but because the respondent was entitled to receive rent, therefore, he decided issue No.1 in affirmative. In respect of issue No.2 he held that the respondent needed the shop for his bona fide use and, therefore, he granted ejectment.
4. During the pendency of this appeal respondent Ausaf Ahmed died, and, therefore, his Legal Representatives, namely Mst.Amina Begum widow Irfan Ahmed, Kalim Ahmed sons and Nasra Begum and Farida Ahmed daughters were brought on record as L.Rs. During the pendency of this appeal an application under Order I, rule 10. C . P . C . was moved by Ilhami Begum and Sajida Begum the two sisters of Ausaf Ahmed wherein they prayed that they may be joined as a party of this appeal as they claimed to be the owner of the property alongwith Ausaf Ahmed. Since Ausaf Ahmed had expired by that time, therefore, the said application was opposed by Mst.Amina Begum widow of Ausaf Ahmed. The intervenors had claimed that they had never relinquished their rights in favour of Ausaf Ahmed while Mat. Amina Begum contended that they had signed relinquishment deed. Since admittedly Ilhami Begum and Sajida Begum were the co-owners of the property with. Ausaf Ahmed after the death of their brother Farooq Ahmed and Ausaf Ahmed had admitted in his cross-examination that he had filed the application with the permission of his two sisters, therefore, without deciding the question whether the alleged deed of relinquishment was effective or not I allow Ilhami Begum and Sajida Begum to be impleaded as respondents to this appeal. The question of title to this property is already in dispute between the present intervenors and the respondents L.Rs. and, there fore, it is not appropriate in these rent proceedings to finally decide the question of title. The appellant's counsel, and the intervenors, counsel as well as the respondent's counsel have been heard. The intervenors' counsel has not supported the respondent and he stated that the property is required by the intervenors.
5. Mr. R.M. Farooqui, learned counsel for the appellant submitted that the first issue has been incorrectly decided and that respondent was not the owner and landlord of the property in dispute as his sisters the co-owners of the property. This submission is not correct. Admittedly Ausaf Ahmed was one of the owners of the property and hence he was the landlord of the same. It is an admitted position in law that one of the co-owners of the property is in the position of a landlord and hence issue No.1 was correctly decided.
6. In respect of issue No.' counsel for the appellant submitted that the respondent Ausaf had sought ejectment for his personal need and after his death the ejectment could not enure to the benefit of his family. Mr. Shahabuddin Memon, as Advocate for L.Rs of respondents submitted that the decree of ejectment could be pursued by the L.Rs, of the person who has died. Reliance was placed upon 1981 S C M R 673 where it was observed that requirement of house by landlady does not affect the requirement of the children after her death. In this case the house was claimed for the occupation of the landlady and her family.
Reliance was also placed upon 1984 S C M R 200 where it was held that ejectment for the benefit of landlord and his sons for a clinic enures to the benefit of sons after the death of the landlord. However, in this case it had come in evidence that the landlord wanted to run the clinic with the benefit of his sons, therefore, these two cases are distinguishable from the present case where the claim set up by Ausaf Ahmed was that he wanted to run the shop himself and he had made no mention of the need of the shop for any member of his family.
7. Appellant's counsel referred to P L D 1981 Kar. 273 (275) where it was observed that the bona fide requirement of the landlord personally cannot be availed by his L.Rs. In 1982 C L C 1577 (1580) it was observed that after the death of landlord a cause for personal use and occupation of shop cannot be pursued by his Legal Representatives. In P L D 1981 Lah. 201 it was observed that an order obtained for ejectment of shop for use of landlord cannot enure to the benefit of his Legal Representatives. In P L D 1984 Lah. 179 in a case where ejectment for personal need of landlord had been granted and landlord had died during the pendency of the appeal and the Legal Representatives had claimed that the ejectment should enure to the benefit of Legal Representatives the learned Judge, after observing that since there was no evidence in the case showing the need of the Legal Represen tatives, remanded the case back to the trial Court for decision on the question whether the Legal Representatives need the permission for their bona fide use or not. To me it appears that an ejectment of a house secured in the benefit of landlord can enure to the benefit of Legal Representatives after his death while an ejectment of a tenant from a shop secured by the landlord can enure to the benefit of his Legal Representatives only if the original claim was that the landlord needed the shop for his personal use as well as for his family or atleast evidence had been led by the landlord to the effect that he alongwith his family needed the shop. But in case where no evidence has been led that the shop was required by the landlord as well as his family then, the ejectment secured for the benefit of landlord personally cannot be availed of by the Legal Representatives. In that case there are 2 courses open, one is that the appeal can be allowed and the Legal Representatives be left to pursue their remedy while the other is to remand the case back to the trial Court for decision on the need of the Legal Representatives.
8. In the present case before me there was no evidence led by Ausaf Ahmed deceased, to the effect that the shop in question was needed by any member of his family as well, and I am, therefore, of the view that the appeal has, therefore, to be allowed as the ejectment cannot enure to the benefit of the respondent L.Rs. as their need was never determined by the Rent Controller. I had, therefore, accepted this appeal on 18-12-1984 and remanded the case to the Rent Controller for decision whether the Legal Representatives Ausaf Ahmed required the premises in dispute. I have remanded the case as I am of the view that there should not be multiplicity of proceedings. These are the reasons for the short order, dated 18-12-1984.
A . A . Appeal accepted.
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