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First Rent Appeal No. 611 of 1984. decided on 23rd November, 1985.

‑‑‑Ss. 15 & 21‑‑Ejectment application, maintainability of‑‑After death of real tenant, ejectment application originally filed against him was amended by landlord in which legal heirs of original tenant were impleaded‑‑Such legal heirs of tenant filed their written statement and proceedings were conducted in their presence‑‑There being no question of limitation and ejectment order having been passed against legal representatives and not against dead person, technical objection that ejectment application was not maintainable as same was filed against dead person, held, was of no force in circumstances.

A I R 1956 Madh. Bha. 76 and P L D 1980 S C 97 ref.

‑‑‑Ss. 15 & 21‑‑West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S. 2(d)(g)‑‑Ejectment of tenant‑‑Godown, whether residential or non‑residential building‑‑Godown in dispute admittedly was being used by tenant for purposes of storing goods‑‑In absence of any allegation from either side that same was ever used as residential premises, godown in dispute, held, evidently would be treated as non‑residential building would be considered for business requirements of landlord in circumstances.

‑‑‑S. 15 (2) (vii)‑‑Bona fide personal requirement‑‑Proof‑‑Where landlord had sufficiently established that he wanted premises bona fide to start business of his own, such landlord, held, would not be forced to prove that he had made necessary preparation for purposes of starting that business or that he had obtained licence for that business or that he had sufficient experience of that business‑‑Where landlord due to extreme need was using his house for business purposes, he could not be forced to continue the inconvenience that he was presently suffering from.

S. Aziz Hassan for Appellant.

Kanwar Mukhtiar Ahmed for Respondent.

Dates of hearing: 3rd and 4th November, 1985.

This appeal is directed against the ejectment order passed by XIIIth Senior Civil Judge and Rent Controller, Karachi on 29‑4‑1984.

2. The respondent had sought ejectment of the original tenant Abdul Hasnain on the ground of personal need. The premises in dispute are admittedly a godown. The original application was not competently filed as Abdul Hasnain was dead in 1975 when it was filed. However, the legal representatives of Abdul Hasnain were brought on record. On 22‑1‑1976 an amended application was filed showing Abdul Hasnain and his legal representatives. The appellant denied that the premises were needed by the respondent.

The issues of personal requirement and maintainability of application were framed.

3. The respondent examined himself in person and stated that he was head of family of six members one of whom was invalid and one of his daughters, was a widow residing with him with her two children. He stated that he wanted to have the premises to open the workshop of Electro‑Plating Plant. He further stated that he had been dealing in that business previously and in that respect he produced two electricity bills, Exh.2 and Exh.2/1. He also stated that at the moment he was manufacturing metal polish at his house and that the said polish is also used for the purpose of electro‑plating. In cross‑examination he stated that he did not know at the time of filing of application that Hasnain was dead. He also admitted that licence in necessary for electro‑plating business. He further admitted that the disputed godown is not situated in industrial area. He denied that he did not require the premises for his own use. The receipts of K.E.S.C. produced by him relating to 1965 and 1966.

The appellant filed his affidavit in defence and stated that the application had been filed with ulterior motives to get Pugree or he wanted to get higher rent. In cross‑examination he admitted that his late father was doing business in the name of Muslim Tobacco Store and that in the premises in dispute they also used to keep tobacco but they also keep some other goods, in it. He further stated that they had closed the business of Muslim Tobacco Store which they were running in their own shop but that shop was let out during the lifetime of his father. He denied that the premises had been demanded by the respondent for personal need. He further denied that they had demanded Pugree for vacating the same. He also denied the personal need of the respondent but admitted that the rate of Pugree of such godown in this area had increased. He did not know if one of the child of the respondent was invalid. He further stated that the respondent did not require the premises for his need as he was negotiating talks of sale of the godown and demanded Rs.1,00,000 while Yakoob Ali had offered only Rs.25,000. The Rent Controller directed the ejectment of the appellant and hence this appeal.

4. The appellants counsel, Mr. Azizul Hassan, submitted that the application as originally filed was incompetent because it had been filed against a dead person. The objection would have been of great force if the other appellant had not been impleaded but since the other appellants have been impleaded before anything happened in the case and an amended application was filed by the respondent on 20‑1‑1976 and the present appellants had filed their written statements in opposition to the same and the proceedings have been conducted in the presence of the appellants, therefore, the objection to the maintainability of the original application is merely a technical one. There was no question of any limitation involved in this matter, therefore, if the original application against the present appellants had been filed on 22‑1‑1976 the same would have been all right and similarly the present amended application, as it was filed on 22‑1‑1976, was clearly competent. There was no prejudice of any sort involved in this matter. The learned counsel had relied upon the provisions of Civil Procedure Code in this regard. It is no doubt true that a decree against a deceased is a nullity. Similarly it has been held that a suit against a sole defendant who was dead at the institution of the suit is a nullity. A I R 1956 Madhya Bharat 76. In P L D 1980 S C 97, it was held that a writ petition filed against a dead person was incompetent and High Court conclusion recorded on basis of merit had no significance being nullity in law. These authorities are good law and are binding but are not applicable. The facts of the' present case are that the amended application bringing all the legal representatives had been filed on 22‑1‑1976 and the ejectment order has been passed against the legal representative and not against the dead person alone and, therefore, this technical objection is of no force.

5. The next objection taken by the appellant's counsel is that a godown is not a non‑residential building. The learned counsel has not been able to cite any authority or law on this point. Section 2(d) of West Pakistan Urban Rent Restriction Ordinance, 1959, defines non‑residential building as a building being used solely for the purpose of business or trade and section 2(g) defines residential building as a; building which is not a non‑residential building. In 1940 edition of Law, Mexicon by P.R. Aiyer godown is explained as "storage, warehouse for goods". The storage or warehouse of goods is ordinarily incidental to a business or trade and no one can contend that a place where goods are stored can be treated as a residential building. Moreover, in the present case before me the appellant Yakoob had clearly admitted that the godown had been used by his father for the purposes of storing tobacco and other goods. No one has ever alleged that this godown was ever used as a residential premises. Therefore, it is evidently of the nature of a non‑residential building and could be considered for the purpose of the requirements of the respondent for an electro‑plating, plant.

6. The next submission of the learned counsel for the appellant was that the respondent had made no preparations for the purpose of starting the electro‑plating business in these premises. This submission is devoid of any substance. No reasonable person could start making any preparations in respect of a future business which he was to conduct in a premises which was in the possession of a tenant and it would have required a great deal of time before he could get the possession of the premises. The insistence of the appellant that the licence for the electro‑plating plant should have been obtained by the respondent is not correct because a licence can be issued only in respect of a premises and unless and until a person shows that he has a particular premises with him no licence could be issued in his favour. Moreover, as I have observed earlier that it would have been completely an exercise in futility to seem a licence unless and until he had the possession of the disputed premises with him. The objection has been raised that the respondent was not seeking the premises bona fide because he had no experience in this behalf. In the first instance, no experience of any particular nature is required from a landlord if he wants to establish a business of his own. In the second instance, in this case, the respondent had made a statement that he had carried on such a business before in 1965‑66 for which he produced electricity bills and the appellants failed to cross‑examine him on this aspect of the case and, therefore, the statement of the respondent has to be accepted on this point which means that he had the requisite knowledge or experience for such business.

The appellant's counsel further raised the plea that since the respondent was producing polish which is used for electro‑plating business in his own house, therefore, it should be treated that he has the necessary premises with him. There is hardly any justification for making such a submission because the production of polish which is used for the purposes of electro‑plating business is far different from) the electro‑plating workshop which the respondent wanted to establish in these premises requiring large premises. Moreover, only because the respondent is using his house for preparing the polish which is used in the process of electro‑plating does not mean that he does not require the disputed premises for the purposes of electro‑plating workshop. It is because of the extreme need of the respondent that he is making use of his house for the purposes of preparation of the polish and he cannot be forced to continue using his own house for the purposes of the polish making. In any case, as I have observed earlier a mere polish making is quite distinct and different from an electro‑plating workshop which requires a spacious space and a person who has got a large family, as shown by the respondent, out of whom one is invalid, cannot be forced to continue the inconvenience that he is suffering today.

7. Consequently, this appeal is dismissed. The appellant is, however, allowed four months time to vacate the premises provided they continue depositing the rent in Court. Direct writ of possession without notice to the appellant will be issued after four months from today or even earlier if they do not deposit the rent.

H . B . T . Appeal dismissed,

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