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Civil Appeal No. 737 of 1984, decided on 29th October, 1985.

(On appeal from judgment of Lahore High Court, dated 5‑3‑1984 in Writ Petition No. 1434 of 1983).

‑‑‑Art. 185(3)‑‑West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S.13(3)(a)(ii)(a)‑‑Leave to appeal granted to examine contention that High Court omitted to consider that after death of landlord (father of appellants an amended petition was submitted by appellants with leave of Supreme Court, setting up a plea of personal requirement of premises by them and also further evidence in support of that plea was led which could sustain finding in their favour.

‑‑‑S. 13(3)‑‑Ejectment‑‑Shop‑‑Personal requirement‑‑Legal represen tatives of a deceased landlord on devolution of interest of deceased, held, could not in same proceedings prosecute claim for ejectment on ground of personal use of deceased landlord as such cause of action being personal in nature would not survive to legal representatives of deceased landlord.

Muhammad Aslam v. Wazir Muhammad P L D 1985 S C 46 rel.

‑‑‑S. 13‑‑Ejectment‑‑Shop‑‑Personal requirement‑‑Landlord dying after filing ejectment application against tenant on ground of personal requirement of premises‑‑Appellant, (children of landlord; amending ejectment application, with permission of Court, impleading themselves in place of their father and setting up an independent plea of their own personal requirement of shop in question‑‑Appellants not claiming, ejectment of tenant by virtue of devolution of rights from deceased landlord qua: plea of personal requirement but pleading their own case in their own rights as landlords for time being‑‑Amended ejectment petition qua such plea was for all intents and purposes a fresh petition which they could maintain in their own right‑‑objection of tenant that such procedure was illegal or not permissible in law, field, purely technical and of no consequence.

‑‑‑S. 13‑‑Ejectment‑‑Shop‑‑Personal requirement‑‑Appellants seeking ejectment of tenant from demised premises in their own right qua personal requirement after death of their father who originally filed application for ejectment‑‑Judgment of High Court in Constitutional petition that S.13(3)(a)(ii)(a) of West Pakistan Urban Rent Ordinance, 1959 did not enure for benefits of legal representatives of landlord after his death, held, proceeded on misconception of factual basis of case which resulted fn an error in its decision‑‑Such error appearing to have crepe in on account of basic error committed by appellate Court who initially approached case on facts from an erroneous angle by proceeding on assumption that appellants were prosecuting same cause of action which survived to them on death of previous landlord qua personal requirement of premises‑‑Appellate Court as such left case undetermined on question of appellants' personal requirement‑‑Judgment of High Court set aside and case remanded to appellate Court for a fresh decision of appeal filed by appellants in accordance with law.

A.W. Butt, Advocate, Supreme Court for Appellants. Ghulam Mujtaba, Advocate‑on‑Record for Respondent.

Date of hearing: 29th October, 1985.

‑The respondent is in occupation 3f shop bearing, No. 3‑S/65, situated in Urdu Bazar, Sargodha, as a tenant at a monthly rental of Rs.300.

2. On 21st February, 1979, Ghulam Muhammad, the owner and landlord of the shop sought ejectment of the respondent under the Urban Rent Restriction Ordinance, 1959, on the three‑fold grounds, namely, default in the payment of rent, damage to the demised premises and bona fide personal need, of the landlord. The respondent resisted this application and denied the allegations made against him. The learned Controller on the pleadings of the parties, framed the following issues:‑‑

"(i) Whether the respondent is entitled to special costs (O.P.P.)

(ii) Whether the respondent has committed default (O .I. A. )

(iii) Whether the applicant requires the disputed shop in good faith for his personal need (O.P.A.)

(iv) Whether the respondent has impaired the value and utility of the disputed shop (O.P.A.)

(v) Relief."

On the aforesaid issues the landlord produced his oral evidence and the respondent ire rebuttal appeared as his own witness, as well as produced three witnesses. But before further proceedings could take place, Ghulam Muhammad expired an 8th August, 1980. The present appellants and their two sisters, who are the children of the former landlord Ghulam Muhammad, were then substituted on record as petitioners. On their application the petition for ejectment was allowed to be amended and an amended petition was filed in the Court of the Controller on 15th November, 1980. In this petition besides the other grounds urged by the previous landlord, the appellants also took up the plea that the demised shop was required by them for their bona fide personal use. A written reply was submitted by the respondent to the amended petition thus filed by the appellants, controverting the allegations contained ill the amended ejectment application. It seems that during the further proceedings of the case one o the appellants, namely, Muhammad Iqbal, appeared as a witness but no further evidence was produced by the respondent.

3. On 2nd March, 1982, the learned Controller dismissed the application for ejectment upon his findings against the appellants, on all the issues including the question of personal requirement pleaded by them. Being aggrieved by this decision the, appellants challenged the same before the Additional District Judge and succeeded on the' ground of bona fide personal requirement, with the result that an order of ejectment was passed against the respondent. In his judgment the learned Additional District Judge observed that the personal need of the original. landlord included that of his sons and, therefore, with the death of Ghulam Muhammad the personal need of his sons did not disappear.

4. The respondent thereupon challenged the judgment of the learned Additional District Judge in a Constitutional petition before the Lahore High Court and a learned Judge of that Court, accepted the Constitutional petition on the following reasoning:‑‑

"In the light of the above discussion, the correct legal position would appear to be that requirement of the landlord in case of a non‑residential building as envisaged in section 13(3)(a)(ii)(a) of the Urban Rent Restriction Ordinance, 1959, does not enure for the benefits of his legal representatives after his death, particularly when he had not based his ejectment application on the ground that he required the tenanted premises for the use of any of his male children.

In this view of the matter, the view adopted by the learned Additional District Judge in his' impugned judgment that the personal need of the landlord or that of his sons means one and the same thing is held to be fallacious and not in accordance with the aforementioned provisions of the Rent Restriction Ordinance. This writ petition is accordingly allowed and the impugned judgment, dated 4‑4‑1983, passed by the learned Additional District Judge, Sargodha, is declared to be without lawful authority and of no legal effect."

4‑A. The judgment of the learned Single Judge of the High Court, dated 8th March, 1984, was challenged in a petition for leave to appeal in this Court and leave was granted in order to examine the contention that the learned Judge in the High Court omitted to consider that after the death of the father of the appellants an amended petition setting up a plea of personal requirement of the premises by them was submitted and also further evidence in support of that plea was led, which could sustain the finding in their favour.

5. We have .heard Mr. A.W. Butt and Mr. Ghulam Mujtaba, learned counsel appearing for the appellants and the respondent, respectively. The grievance of the appellants is that the learned Judge in the High Court totally ignored .the amended ejectment petition in which the appellant; on being impleaded in place of their predecessor‑in‑interest, set up an independent plea of their own personal requirement, and proceeded to determine the case on the basis of abatement of the cause of, action on such plea raised by the deceased landlord for his personal use. The respondent, on the other hand, supported the impugned Judgment of the High Court on the proposition that the appellants, on, devolution of the interest of the deceased landlord could not in the same proceedings prosecute the claim for ejectment on the ground of personal use of the deceased landlord as such cause of action, being personal in nature did not survive to the legal representatives of the deceased landlord. On a purely legal plane the contention of the respondent is unexceptionable. This Court in Muhammad Aslam v. Wazir Muhammad P L D 1985 S C 46 has laid down that unless the personal action of a landlord on the ground of personal requirement has matured into a judgment, decree or an order of a Court, it does not vest in his estate to survive to his legal representatives on his death and accordingly would abate on his death if the same occurs during the pendency of proceedings before an order of eviction is made.

6. But the position in this case is different. The appellants were not obviously claiming ejectment of the respondent by virtue of the devolution of rights from the deceased landlord qua the plea of personal requirement. As already observed they were allowed to amend the petition and plead their own case of personal requirement in their own right as landlords for the time being. On the death of Ghulam Muhammad, the previous landlord, they succeeded to him as landlords and could obtain possession if they required the premises for their own use. Therefore, the amended ejectment petition qua this plea was for all intents and purposes, a fresh petition which they could maintain in their own right. This is what actually happened as is reflected from the proceedings and in fact one of the appellants appeared as their witnesses to support their plea of personal requirement. We are unable to see any force in the submission of the respondent the such procedure was illegal or not permissible in law. The objection is purely technical and of no consequence.

6: In view of the above it is clear that the judgment of the High Court proceeds on a misconception of the factual basis of the case which has resulted in an error in the decision of the case. Although we have come to this conclusion, we are at the same time unable to uphold the order of the learned Additional District Judge directing the ejectment of the respondent. We find that the error in the impugned judgment of the High Court has crept in on account of the basic error committed by the Additional District Judge, who initially approached the case on facts from an erroneous angle, by proceeding on the assumption that the appellants were prosecuting the same cause of action which survived to them on the death of the previous landlord qua personal requirement of the premises. As already pointed out the learned Controller had considered the case of the appellants in their own right for their personal requirement. The net result is that the learned Additional District Judge, who was the appellate forum left the case undetermined on the question of appellants personal requirement. If the learned Judge in the High Court had been pointed out this legal defect; we are sure he would have remanded the case for rehearing and fresh decision to the Additional District Judge, so that the appellants had at least one remedy of appeal on facts. The case has, therefore, to be remanded to the Additional District Judge for a fresh decision in the light of what has been stated above.

8. In the result this appeal succeeds and the judgment of the High Court is set aside. The case shall be remanded to the Additional District Judge for decision of the appeal filed by the appellants afresh in accordance with law. In the circumstances of this case, there will be no order as to costs.

M . Y . H . Appeal allowed.

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