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Civil Petition for Leave to Appeal Nos. 383‑K and 384‑K of 1985, decided on 25th May, 1986.

(On appeal from the judgment and order of the High Court of Sind, dated 1‑7‑1985, in F.R.A. Nos. 408/84 & 574/84).

‑‑‑Art. 185(3)‑‑Sind Rented Premises Ordinance (XVII of 1979) S.15(2)(ii)‑‑Default in payment of rent‑‑Death of original tenant Effect of‑‑Leave to appeal granted to consider whether respondents were not liable for default committed by original tenant, whom they succeeded as tenants.

Muhammad Azim and others v. Sh. Muhammad Nawaz and others P L D 1966 S C 182 ref.

‑‑‑Art 185(3)‑‑Sind Rented Premises Ordinance (XVII of 1970, S.15(2)(vii) & 21‑‑Ejectment‑‑Personal need of landlords children/ grand‑children‑‑Leave to appeal granted to consider whether under S.15 of Ordinance (XVII of 1979), it was no longer permissible to determine suitability of accommodation in occupation of landlord at time of ejectment application on ground of personal need if the same was in good faith and whether requirement of a child of landlady would also include the use of such child's own children.

Suleman Kassam, Advocate Supreme Court and A.A. Dastgir, Advocate‑on‑Record for Petitioners.

Nemo for Respondents

Date of hearing: 25th May, 1986.

As these two petitions have been filed by the landlords against the same respondents who are their tenants and arise out of the same ejectment proceedings, we propose to dispose of both these petitions by this common order.

2. Mst. Farrukh Nisa predecessor‑in‑interest of the petitioners brought an ejectment application against the respondents, inter alia, on the ground of non‑payment of rent from 1st January, 1981, to 31st March, 1981, and personal requirement of the demised premises for the use of her daughter Najma Bano (petitioner No. 2 in the present petition). The respondents repudiated the pleas taken by the landlady and contested the ejectment application. The learned Rent Controller accepted the ground of default and rejected the plea of the landlady on the ground of personal need. Accordingly he ordered the ejectment of the respondents on the former ground alone. Being aggrieved by the rejection of the ground of personal requirement the landlady preferred an appeal before the Sind High Court. Likewise the respondents also challenged the order of their eviction on the ground of non‑payment of rent by a separate appeal in the High Court. The learned Single Judge who heard the appeals, by two separate judgments, dated 1st July, 1985, disposed of the appeals. The result was that the appeal filed by the landlady was dismissed and the appeal filed by the respondents was accepted and the order of eviction passed against them was set aside. Being aggrieved by the aforesaid two judgments the petitioners have filed these petitions for leave to appeal.

3. In Civil Petition for Leave to Appeal No. 383‑K/1985, which relates to the question of default allegedly committed by the respondents, the crucial point is as to the effect of the death of the original tenant on 17th February, 1981, as a result of which the tenancy rights in the premises devolved on the respondents. Learned Single Judge has taken the. view that the respondents became statutory tenants with effect from the aforesaid date by operation of law and although under the ordinary law they were liable to pay the arrears of rent due from the original tenant, but under the Sind Rented Premises Ordinance they will not incur the liability of the default committed by the original tenant before his death on 17th February, 1981. On this view of the matter the learned Single Judge held that the respondents were only liable for the non‑payment of rent with effect from 17th February, 1981 and since they started depositing the rent from 24th April, 1981. in the Court of the Controller, which was within the grace period of 60 days, they were not guilty of non‑payment of rent so as to be evicted.

4. Learned counsel contended that the view taken by the learned Judge is contrary to the dictum laid down by this Court in Muhammad Azim and others v. Sh. Muhammad Nawaz and others P L D 1966 S C 182, that the representatives of the deceased tenant would be responsible for his default committed before proceedings were taken by the landlord. Learned counsel referred to the passage from the opinion of B.Z. Kaikaus, J, in the aforesaid case to the following effect:‑ "I do not take those words to mean that if the proceedings had ,not been filed during the lifetime of the father the children would not be affected by the default. If the children derived their right from the father then they would be affected by the default committed by him even though proceedings for ejectment had not started in his lifetime."

5. After hearing the learned counsel we feel that an important question of law has been raised which requires consideration whether in the facts of this case the respondents were not liable for the default committed by the original tenant whom they succeeded as tenants committed during his lifetime. This question of law requires consideration and we, therefore, grant leave to appeal in Civil Petition for Leave to Appeal No. 383‑K/1985.

6. In Civil Petition for Leave to Appeal No. 384‑K/85, the learned Single Judge found that the landlady's daughter, Dr. Najma Bono petitioner No. 2, was residing with the landlady in the same house along with her husband and two minor daughters. The plea of the landlady was that the accommodation in her occupation is not sufficient for her purposes as well as to accommodate her daughter. On analysing the evidence the learned Judge came to the conclusion that the accommodation Presently in occupation of the landlady's daughter was stated to be insufficient because the latter's children had grown up. Therefore, while interpreting subsection (2) of section 15 of the Sind Rented Premises Ordinance, the learned Judge came to the conclusion that the requirement of grand children of the landlady was not a valid ground for eviction of the tenants, although the law permitted such eviction in respect of the children of the landlord. It is inter alia, contended by the learned counsel that under section 15 of the Sind Rented Premises Ordinance, it is no longer permissible to determine the suitability of the accommodation in the occupation of the landlord at the time of ejectment application on the ground of personal need if the same is in good faith. Secondly it is urged that the learned Judge over looked the fact that requirement of a child of the landlady, would also include the use of such child's own children. These contentions seem to require consideration we, therefore, also grant leave to appeal in Civil Petition for Leave to Appeal No. 384‑K/85.

7. Security Rs.500 in each case to be furnished by the petitioners.

M. I. Leave granted.

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