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Writ Petition No. 208 of 1962, decided on 21st February 1963.
Tenancy case, plain and simple‑Cannot be taken out of purview of Act by raising pleas of "recission, breach, or specific performance"of contract or of a plea of "special case".
Controller accepting afdavit from sub‑tenant during inspection of premises and basing his findings on such affidavit --Disapproved‑Quasijudicial nature of proceedings.
Sub‑tenant‑Implied permission of landlord inferred from circum stances‑Grant of certificate to landlord disapproved‑[Ahmed v. The Chief Judge, Karachi Small Causes Court P L D 1958 Kar. 42 and Watson v. Saunders‑Roe Ltd. 1 K B 437 ref.]
‑[Son after clearing his law education required by father to join him in hotel business]‑[Economic dependence of such person or dependence for accommodation]‑[Rekhabchand Doogar v. J. R. D'Criz 26 C W N 499 ; Epson Grand Association Ltd. v. E. J. C larke 35 T L R 525 ; A I R 1951 Pat. 496 ; Raniklal v. Vithal Pandurang A I R 1952 Nag. 312 ; Beharilal v. Premchand A I R 1953 Nag. 414 and Messrs Rajani Kanta Tarak Nath Das v. Mst. Moazzama Begum P L D 1960 Dacca 379 ref.]
Ghayas Muhammad, Khalflullah and Muhammad 1qbal for Petitioners.
Shah Jamil Alam and Muhammad Hayat Junejo for Respon dent No. 3.
Khalid Ishaque, A. A.‑G. for Respondents Nos. 1 & 2.
Dates of hearing: 20th, 21st, 22nd and 23rd November 1962.
This is a Writ Petition under Article 2 (4) of the President's Post Proclamation Order I of 1958, by the petitioners praying that the orders of the respondents 1 and 2 dated 10‑2‑1962 and 8‑7‑1961 respectively be quashed, and that the respondent No. 3 be restrained from taking any proceedings on the basis of these two orders.
2. The proceedings in this case started on an application dated the 6th August 1959 made under section 10 of the Karachi Rent Restriction Act, 1953 by respondent No. 3, Muhammad Shaft, contending that he was the owner of the land with the buildings standing thereon having acquired it in 1947, and after renovating it, had made it fit for use as an hotel and a restaurant. Thereafter he started what is known as the Dilkusha Hotel with its office on the upper floor, and the Dilkusha Restaurant on the ground floor, the latter for the benefit and convenience of the lodgers in the Hotel upstairs. At that time Muhammad Shafi was working alone. His sons were minors and were, therefore, of no help to him in the effective management of the Restaurant and the Hotel. He was, therefore, on the look‑out to give the restaurant on a contract basis. In consequence, one Muhammad Ishaq, the husband of Mst. Nayar Begum, who was made a party to the proceedings under this application (being opponent No. 1) approached Muhammad Shafi in 1952 through common friends and well‑wishers intending to take over this Dilkusha Restaurant on rent, and to carry on its business under the name and style of Cafe De Khan. Muhammad Shafi, therefore, let out the ground floor to Muhammad Ishaq in June 1952 temporarily, on a clear understanding and undertaking given orally that Muhammad Ishaq would vacate the premises whenever required by Muhammad Shafi, in addition supply good food to the lodgers of Dilkusha Hotel, to keep the electric water‑pump in good working condition and the premises neat and tidy, not make additions and alterations on the ground floor without authority, and not act as a source of annoyance or nuisance to the lodgers in the Hotel upstairs or those in the vicinity, and altogether conduct himself in a manner in keeping with the leasehold interest in favour of Muhammad Shall. Muhammad Shafi's contention in the application was that Nayar Begum, earlier referred to as the widow of Muhammad Ishaq, and Muhammad Amin, who was also opponent No. 2 in the application, succeeded to the estate of Muhammad Ishaq on his death, and continued the business for sometime, but that thereafter Muhammad Amin and one Naeem Jan took over Cafe De Khan in partnership, , the occupation of Muhammad Neeam being unauthorised and without the consent and knowledge of Muhammad Shaft. Those opponents had, therefore, deliberately violated the terms of the tenancy had stopped supplying food to the Hotel upstairs, and failed to keep the water‑pump and hand pump in working order, causing harassment and inconvenience to the lodgers, were using firewood for cooking food, which was prohibited in the area, had damaged the premises and caused annoyance to the lodgers and the neighbours owing to smoke from the kitchens, consequently Muhammad Shafi's business in the Hotel had been greatly affected, and most of the rooms in the Hotel remained vacant. It was further contended that Muhammad Amin and Muhammad Naeem Jan had converted the latrine on the ground floor into a store‑room for meat and had effected other unauthorized alterations and additions and committed unlawful acts, were keeping the premises in insanitary condition and besides had created a sub‑tenancy in favour of Hafiz Zaheer Ahmed, who was running a pan‑shop attached to Cafe De Khan and one Mulla Mustaqeem described as a kabab wala, attached to the Restaurant, from whom they were recovering rents and who were allowed to do business in the premises without the consent of Muhammad Shafi. It was also contended that Muhammad Shafi's two sons had become majors and as Muhammad Shafi desired to conduct his own business with his sons, and he had no other suitable occupation to have his sons suitably employed, he required the premises then in the occupation of Muhammad Amin and Muhammad Naeem Jan for his own personal and bona fide use, and for those of his children who were dependent on him. In these circumstances, the applicant prayed to the Rent Controller that an ejectment certificate against opponents 1, 2 and 3 be granted under section 10, subsection 2 (a), (b) (ii) (c) and (d) of the Karachi Rent Restriction Act, 1953.
3. In a written statement filed on the 16th of September 1959, on behalf of Muhammad Ameen Khan and Muhammad Naeem Jan and Mulla Mustaqim, it was denied that Muhammad Shaft was the sole landlord of the premises in dispute, and that the entire running business of the Dilkusha Restaurant was purchased by the late Muhammad Ishaq, the husband of Nayar Begum at a cost of Rs. 50,000 which was paid to Muhammad Shafi in 1952, and the premises went along with the running business and Rs. 500 per month was settled as rent between Muhammad Shafi and Muhammad Ishaq with the condition that if a godown or part of the premises of Dilkusha Restaurant were not handed over to Muhammad Ishaq, the rent would be Rs. 430 per month. Muhammad Ishaq had decided on transfer of the premises in his name, to carry on the business of the restaurant in the name and style of Cafe De Khan. It was denied that Muhammad Ishaq had given any undertaking that he would vacate the premises at any time, and as he had purchased the running concern along with its good‑will, the other conditions alleged by Muhammad Shafi were denied. In paragraph 8 it was contended that Muhammad Amin Khan had succeeded to the estate of Muhammad Ishaq on his death, and that the running concern was purchased by Muhammad Amin Khan as the son of Muhammad Ishaq for a sum of Rs. 1,80,000 in consequence of Suit No. 178 of 1956 for the administration of the estate of Muhammad Ishaq.
On 5‑3‑1956 a Receiver was appointed and a restricted auction between the parties was ordered to be held in consequence of which Cafe De Khan was transferred to Muhammad Amin Khan, and Nayar Begum was paid Rs. 42,500 as her share of the business. In the written statement it was further contended that the best food was being supplied to the lodgers in Dilkusha Hotel, and that the supplies had been stopped by Muhammad Shafi, since the opponent No. 2 was initially paying a 12 % commission on the food supplied to the lodgers of the Dilkusha Hotel, but owing to the advent of Martial Law, the price of food‑stuffs and other essential commodities had been reduced, and opponent No. 2 had reduced the commission voluntarily to 6 %, which had upset Muhammad Shafi and driven him to stopping the supplies, and also to making the application under section 10 of the Karachi Rent Restriction Act. It was denied that any terms of the tenancy had been violated, it being contended that a new kitchen had been set up in furtherance of the proper use of the restaurant with the consent of Muhammad Shafi, that in fact it was intended to install a Sui Gas connection for the restaurant for which an application bad been made but which Muhammad Shafi had refused to sign. No latrine had been converted into a store room for meat and no sub‑tenancy had been created through Hafiz Zahir Ahmed Khan and Mulla Mustaqeem who were in occupation at the time the premises were taken over by the late Muhammad Ishaq. As far as Mulla Mustaqeem was concerned that he was only a kababwala in connection with the business of Cafe De Khan, incidentally making supplies to them, and that he was not carrying a separate business of his own, and that all this was to the constant know ledge of the applicant.
4. On the point of personal use and occupation, it was contended that Muhammad Shafi bad a very large business in various commodities, such as wool and watches, both in East and West Pakistan, where he owned considerable landed property, and that he had sold his business for Rs. 50,000, and further that the premises were not required by him on bona fide grounds, since the property in dispute was not held for the benefit of his sons. The grant of the certificate was, therefore, opposed on all grounds.
5. In an order extending over almost 161 typed pages devoted mainly to the details of the evidence recorded, the learned Rent Controller concluded on the 8th June 1961, that it was "expedient in the interest of justice, equity and good conscience that the ejectment certificate applied for should be granted." Thereafter a Revision Application No. 332/61 was filed before the learned Chief Judge, Karachi Small Causes Court in his revisional jurisdiction under the Rent Restriction Act. The learned Chief Judge, Karachi Small Causes Court on the 10th of February 1962, concluded that the order of the learned Rent Controller was proper, without any legal flaw or ground for interference, and in consequence dismissed the revision application, thus confirming the grant of the certificate by the Rent Controller.
6. In the course of his order, and at para. 7, the learned Chief Judge, Karachi Small Causes Court, concluded that some of the points considered by the learned Rent Controller were not necessary for the disposal of the application. Since it was not disputed that Muhammad Ishaq had taken the premises in question for the purposes of a restaurant, that the premises belonged to Muhammad Shafi, and also that Muhammad Amin and Nayar Begum, as heirs of Muhammad Ishaq, had un disputably inherited the estate left by Muhammad Ishaq, which included the Cafe De Khan, it was in consequence of this that Muhammad Amin came into exclusive possession of the restaurant and under the provisions of section 2 (7) of the Karachi Rent Restriction Act, and became the tenant of Muhammad Shafi. The following four points were, therefore, framed for determination
(l) whether the opponent Muhammad Shafi required the premises for his personal requirement and the use of his sons reasonably and in good faith ;
(2) whether the premises were sub‑let without the permission of the landlord ;
(3) whether he had committed any act contrary to the pro visions of clauses (o) and (p) of section 108 of the Transfer of Property Act, and
(4) whether the tenant had infringed any condition of the tenor on which the premises were held by the landlord.
7. On a consideration and discussion of these points it was ultimately held in favour of the opponent and the finding of the learned Rent Controller and of the grant of the certificate in favour of Muhammad Shafi confirmed.
8. In this writ petition, several points have been raised by Mr. Ghias Muhammad for the petitioners. They are that this is a case of transference of a running business on certain stipulations, and not a case of tenancy simpliciter within the meaning of section 10 of the Rent Restriction Act. As such the application initially made by Muhammad Shafi could not be entertained by the Rent Controller being outside the orbit of the Rent Restriction Act.
(b) The next point was that the cause of action of the petition of the original application was based on a recission of a contract or the right of specific performance of a contract, and in either case the controversy raised was not germane to the issues and considerations arising under the Rent Restriction Act.
(c) Thirdly, that the Rent Restriction Act was a special statute creating a Special Tribunal empowered to deal with specified cases. If no questions arising or flowing from the provisions of the Act are affected, the Rent Controller will not be entitled to deal with it.
(d) The next contention is that in the context of the transaction between the parties, the alleged tenancy of the premises in an adjunct to the main commercial transaction pertaining to a transference of running concern on the said premises. The tenancy cannot as such be dealt with divorced from the main transaction, and a contrary view would involve the result that a dishonest landlord by resort to the Rent Restriction Act will free himself of liabilities under the contract. This will constitute an abuse of the process of the law and,
(e) Lastly, it was urged that assuming the orders to be with jurisdiction, the same were vitiated by misreading and non reading of the evidence and relying upon inadmissible evidence.
9. We have heard the learned counsel on either side at some length and we have given this matter our very anxious consider ation. We would refer for a beginning to the preamble of the Karachi Rent Restriction Act VIII of 1953 it being "expedient to make certain provisions regarding accommodation residential or non‑residential, furnished or unfurnished, in the Capital of the Federation, and in particular to provide for controlling the rents chargeable for such accommodation and for preventing eviction in certain cases". The case of the respondents in initiating the application for the necessary certificate was mainly on three grounds:‑
(1) Of the respondents having inducted sub‑tenants in the Cafe De Khan premises;
(2) Of their having contravened the terms of the tenancy and raised unauthorised additions and alterations, and of being a source of nuisance and annoyance generally to the lodgers of the Dilkusha Hotel in the neighbourhood, and
(3) Of the premises being required by the applicant for his own use, and essentially that of one of his sons.
10. In the context of the evidence examined through which we have been taken in some detail, it is an admitted position that there was no written agreement between the parties as to the terms and conditions on which the late Muhammad Ishaq took over the premises from the respondent Muhammad Shafi in 1952. Although in the written statement filed in the Court of the learned Rent Controller and in para. 6, it was contended that Muhammad Ishaq finally took over at the intervention and settlement arrived at by Maqsood Ali, Zahir Khan and Haji Osman, none of these three gentlemen were examined. Muhammad Shafi has given his own version as to the terms and conditions on which the deceased Muhammad Ishaq took over the Cafe De Khan premises in June 1952. It is not disputed that the relations between Muhammad Ishaq deceased and Muhammad Shaft were cordial. There is no reason to doubt this, and even though it may be conceded on Muhammad Shafi's own showing, that he was on the look‑out for some one to take the Dilkusha Restaurant premises off his hand, as he was unable to manage them some terms and conditions must have been agreed to before Muhammad Ishaq finally took over the Restaurant premises. We are inclined to agree with the contention on behalf of Muhammad Shafi that one of the terms and conditions of the taking over of the Restaurant premises was that Muhammad Ishaq would hand over the premises in favour of Muhammad Shafi after some reasonable time and on bona fide grounds and for substantial reasons that he needed the premises for his own use or one of his sons. In doing so we have taken into consideration the fact that after Muhammad Ishaq took over the premises he effected some additions and alterations in it, and also that his heirs after his death paid a large sum to take over the business of the restaurant, but it is in our view established that Cafe De Khan since it was taken over by Muhammad Ishaq established itself into a paying concern, and the price Muhammad Amin Khan paid to get into sole occupation, which also involved paying off Nayar Begum, must have been done in consideration of the Cafe business and its good‑will at that time.
11. There is, however, the overriding circumstance which in our view has been established beyond doubt, that Muhammad Ishaq was a tenant of Muhammad Shafi in respect of the premises, for in para.,5 of the written statement, it is admitted that the rent which was agreed to be payable to Muhammad Shafi per month was Rs. 430, one of the further conditions being that on the food supplied by Cafe De Khan to Dilkusha Hotel lodgers, Muhammad Shafi would be paid a commission of 12 %. A misunderstanding between the parties started when Muhammad Naeem Khan and Muhammad Amin Khan took advantage of the situation created by the Martial Law of the temporary reduction in the prices of foodstuffs and other supplies and, voluntarily reduced the commission payable to Muhammad Shafi on the food supplied to the hotel lodgers to 6J%. Muhammad Shafi stopped food being supplied to the lodgers from the Cafe premises, as he refused to accept this commission. The relation between the parties became strained, resulting in the application under section 10, Rent Restriction Act. As we have already stated, there is nothing to indicate what were the precise terms and conditions on which Muhammad Ishaq took over the Cafe premises in dispute, and we are, therefore, unable to agre‑‑ with the contention of Mr. Ghias Muhammad that this is a case of interference with a running concern on certain stipulations. We are also convinced that this is a case of a tenancy plain and simple within the meaning of section 10 of the Rent Restriction Act, I and that the application initially made by Muhammad Shaft was a proper and legal one within the ambit of the Rent Restriction Act and the jurisdiction of the Darned Rent Controller appointed under it. There is no question of a contract between the late Muhammad Ishaq and Muhammad Shafi or the recission or the breach of the contract or a specific performance of it, and is also not a special case, which was outside the purview of the Rent; Restriction Act. This case is one of a tenancy of the Cafe De Khan premises of which Muhammad Ishaq was the tenant and Muhammad Shafi, respondent No. 3, the owner, and Muhammad Shafi was perfectly entitled in the circumstances at the time, to resort to an application under the Rent Restriction Act, for what he considered was a grievance on grounds urged in the appli cation. We would further hold that the application did no constitute an abuse of the process of the law.
12. We will now proceed to consider if the orders passed, specially the initial order passed by the learned Rent Controller dated 8th June 1961, was vitiated by misreading and non‑reading of the evidence and by reliance on inadmissible evidence. The principal points for consideration will be whether the applicants have contravened the terms of the tenancy between the respondent No. 3 and themselves by unauthorized additions and alterations to the premises which would constitute, the creation of a shifting of the kitchen to an open courtyard, the conversion of a lavatory into a store‑room and of the construction of "fire places" (choolas) and ovens (tandoors) at several places, of keeping the premises in an insanitary condition of creating a nuisance by the presence of smoke and other insanitary conditions, and of creating a sub‑tenancy in favour of Hafiz Zahir Ahmed and Mustaqeem and finally whether the premises are needed by respondent No. 3 for his own use and that of his own.
13. We find on being taken through the various documents and the correspondence that has passed between the parties and the Karachi Municipal Corporation etc., that the shifting of the kitchen, the conversion of the lavatory into a store‑room, the construction of fire places and ovens which are the main grounds for grievance, appear to have been erected and effected from as early as 16th September 1952. Thereafter no additions and alterations supervened and although it is true that Muhammad Shafi and the Municipal Authorities objected to several conditions prevailing in the Cafe De Khan at the time, the point for consideration is whether, in these circumstances, Muhammad Shafi can, after such lapse of considerable time, still continue to take the advantage of the circumstances, having maintained a deliberate silence in between without objection, for almost three years. This would also apply to Muhammad Shafi's knowledge whether Mulla Mustaqeem and Hafiz Zahir were in possession of the pan and kabab shop, and whether his conduct in these circumstances, amounts to a connivance and, therefore, of an implied consent with regard to the state of the Cafe De Khan premises of the existence of the additions and alterations referred to already. We must in passing record our objection to the conduct of the learned Rent Controller in accepting an affidavit of Mulla Mustaqeem at the time of the inspection of the premises and of his basing a finding on the contentions made in this affidavit, even though according to the learned Rent Controller, an opportunity was given to the present applicants to controvert the allegation made in this affidavit of Mulla Mustaqeem being a sub‑tenant of the applicants and that the applicants did not take advantage of this opportunity to examine evidence to controvert whatever circumstances may have arisen. We nevertheless feel that such a procedure of accepting as judicial evidence in the course of what are quasi‑judicial proceed‑I ings as uncalled for.
14. Mr. Ghayas Mohammad for the applicants has referred us to Ahmed v. The Chief Judge, Karachi Small Causes Court (P L D 1958 Kar. 42 at p. 55), where Wahiduddin, J., in the course of an application for a writ of certiorari against the order passed by the learned Chief Judge, Karachi Small Causes Court in the matter in respect of constructions and alterations, opined in the following terms
"Without expressing our views on the facts of the present case, it appears to us that on the language of section 10 (2) (b) both express and implied, permission can be considered to be included in the word "permission". The learned counsel for the petitioner in this connection invited our attention to the observations made by the learned Judges of the Court of Appeal in a case reported in (1952) 2 All E L R 102. The question in that case was one of the interpretation of the few words of para. (d) of Schedule I of the Act of 1933, viz., the tenant without the consent of the landlord has at any time after 31st July 1923, assigned or sublet the whole of the dwelling house.' The learned Judges in that connection observed
"It remains, then, to determine the consent, express or implied, must have been given at or before the time of the sub‑letting or may be given ex post facto. In this connection it is to be remembered that the paragraph applied in a case where by the terms of the contract of letting no consent is required at all. In such a case a tenant who has omitted at the time of sub‑letting to note the possible effect of para. (d) might have failed then to ask for consent. It would, we think, be startling if, though the tenant later repaired the omission and obtained the approval of his landlord, never theless para. (d) applied to enable the landlord to invoke the jurisdiction of the Court, or does it seems to us a satisfactory answer to the example to say that the Court in such a case would inevitably hold it unreasonable to make an order. In our judgment, therefore, it is in accordance with the fair construction of the paragraph and the principles generally applicable in Rent Act cases to hold that para. (d) is excluded if, in fact, at any time before the issue of the proceedings, though not necessarily at or before the time of the sub‑letting, the landlord's consent thereto has expressly or by implication been obtained, and, although, as we have said, the conception of consent to an act is not the same thing as waiver of its consequences‑and the former conception is necessarily appropriate where the act in question is not itself a breach of any obligation‑still, the conduct of the landlord in the present case in accepting rent for a period of four‑and‑a‑half months with clear knowledge of the sub‑letting which the Judge held (and, as we think beyond doubt, rightly held) to amount to a waiver of the covenant, must inevitably amount also to a consent' to the sub‑letting in the sense of being a negation of any objection thereto, and all the more so since the sub‑tenants were the same persons who had in another capacity been in fact the occupants of the premises ever since the tenancy began. For it seems clear that one object (at any rate) of para. (d) was to give some protection to a landlord against the risk of finding some person wholly unknown to him irremovably installed in his property."
The observations of the learned Judges in that case can also be applied to cases under the Karachi Rent Restriction Act and on a consideration of the Authorities cited before us, it appears that the permission contemplated under section 10 of the Karachi Rent Restriction Act, also includes implied permission."
15. In the present case, we have no doubt that what is now alleged to be conversions of the disputed premises, of the shifting of a kitchen and the constructions of choolas and the existence of the so‑called sub‑tenants Haji Zahir Ahmed and Mulla Mustaqeem was to the knowledge of Muhammad Shall from the very beginning and that he acquiesced at the time and did not protest immediately in the form of an application under the provisions of the Rent Restriction Act. Besides we cannot but hold that the acts attributed to the petitioners in reference to re‑construction, the shifting and the conversions were those of a prudent man in respect of his own property, and in, the present case, in respect and in furtherance of the restaurant remises that he was running.
16. In Watson v. Saunders‑Roe Ltd. (1 K B 437), it was held that in a breach of a covenant, the tenants of a house within the Rent Restriction Act sublet it without the consent of the landlord, who, however, accepted rent with knowledge of the breach. The tenants gave the sub‑tenant due notice to quit, but he remained in possession as a statutory tenant. They then gave the landlord due notice of intention to quit. In an action brought by the landlord for rent for a period subsequent to the expiry of that notice on the ground that the tenancy remained in being since the tenants, through their own fault, had not given up the premises with vacant possession, it must be held that the tenancy had been effectively terminated notwithstanding the fact that the notice terminating it bad been given by the tenants and not by the landlord and that, through the sub‑tenants refusal to move, vacant possession had not been given, that in view of the landlord's waiver of the tenant's breach of covenant, the premises were lawfully sublet'.
17. In the present case Muhammad Shafi not only connived at the sub‑tenancy in favour of Zahir Ahmed and Mulla Mustaqeem, but also continued to accept rent from the present applicants on the old terms without protest until the conditions of commission paid to him on the food supplies to the Dilkusha premises were not conducive to him. We have also read the other evidence recorded to support Muhammad Shafi's case of permanent structures having been erected and of annoyance nuisance generally caused by and on account of the existence of the Cafe De Khan premises. In the context of these circum stances and in view of the continued acceptance of these conditions, and on the basis of the law on these points, we would hold that Muhammad Shafi by his conduct had given his implied consent to the state of affairs and cannot now complain at his pleasure, nor take advantage of the situation created. We, therefore, do not agree with the finding of the learned Rent Controller and the learned Chief Judge, Small Causes Court, that the certificate under section 10 of the Rent Restriction Act should have been granted in favour of Muhammad Shafi on these grounds.
18. We now pass on to the final ground whether the premises are required by Muhammad Shafi in terms of section 10 (2) (d) anal (f) of the Karachi Rent Restriction Act, reasonably and in good faith, for his own use or for the use of any person for whose benefit the premises are held. Both the Courts below had agreed with the contentions of Muhammad Shafi, respondent No. 3, that he needed the premises for his own use. Detailed reasons have been given by the learned Rent Controller for a finding in favour of the respondent. On reading through this evidence, we would hold that the present applicants have been unable to controvert the substantial circumstance that Muhammad Shafi has no other restaurant business nor indeed any other substantial business in which his son can be suitably employed. It is not denied that Muhammad Shafi has several sons, but as his statement before the learned Rent Controller, shows his contention is that his 3 sons at the time he gave evidence were aged 19, 22 and 26. They had completed their education, all the three were without any employment, and as one of his sons, Muhammad Rafi, had cleared his law examination, and entered his business, he needed the Cafe De Khan premises for the use of Muhammad Rafi who was dependent upon him, so that with his assistance he could run it as a source of additional income to his growing family.
19. In Rekhabchand Doogar v. J. R. D'Criz (26 C W N 499), it was held that it is not sufficient that a plaintiff in order to defeat a plea under the Calcutta Rent Act should merely say that he desires the premises bona fide for his own occupation. The word in the Act is not desire', but require'. This involves something more than a mere wish and involves an element of need to some extent at least.
20. Similarly in Epson Grand Association Ltd. v. E. J. Clarke (35 T L R 525), it was expressed in passing at page 526
"As to the exception that the premises are reasonably required by the landlord for the occupation of himself or some other person in his employ,' the onus was on the landlord. It was for him to establish that the exception applied and that he reasonably required the premises for the occupation of himself or some other person in his employment, or in the employment of some tenant from him, or that some other ground existed which might be deemed to be satisfactory to the Court."
21. It was, therefore, incumbent upon Muhammad Shafi to satisfy the Courts below, and this Court, not only that he was acting bona fide, but that his request for requiring the premises was reasonable. In this context, it was held in A I R 1951 Pat. 496, that the expression "his own occupation" cannot be restricted only to the occupation of the landlord himself, but should be given the wider and liberal meaning so as to include the occupation of persons who are living with the landlord and are economically dependent upon him. Hence where the landlord requires the premises for establishing his nephew (sister's son) who is living with, him and dependent upon him, in business he would be entitled to an order in his favour. In the course of this judgment, reference was made to Raniklal v. Vithal Pandurang (A I R 1952 Nag. 312) and Beharilal v. Premchand (A I R 1953 Nag. 414). In the latter judgment, their Lordships of the Nagpur High Court made the following significant observation
"The main point canvassed before us was that the need of the widowed daughter and her children must be deemed to be the need of the landlord. In our opinion, the contention of the petitioner is correct, and must be upheld. No doubt, after marriage, the daughter passed out of the father's family, and goes into that of the husband. But the fact of the marriage does not sever the blood relationship which exists between a father and his daughter. The existence of this relationship does give rise to certain moral obligation. Where, in pursuance of such moral obligation, a father affords support to his daughter and her children, their need becomes his needs. There is nothing in the Rent Control Order which restricts a landlord's needs to his personal needs."
22. In Messrs Rajani Kanta Tarak Nath Das v. Mst. Moazzama Begum (P L D 1960 Dacca 379), Chowdhury, J., on the same point, and in a consideration of the words "own occupation" in the East Bengal Premises Rent Control Act, in section 17 (1) (e), opined that the words "own occupation" (mean) as under:‑
"If any member of such a family, though not dependent for his or her maintenance on the landlord, himself, but, at the same time, is dependent for accommodation, I think it will come within the meaning of dependent' on the landlord. I have already stated that if the narrow meaning, as contended by Mr. Roy, is put on the words "own occupation" then the whole aim and purpose of section 17 (1)(e) would be frustrated. In the circumstances, I cannot accept the contention of Mr. Roy for the petitioner, that own occupation' means occupation of the landlord himself along with such other members of the family as are dependent on him in all respects, as sound."
23. The Patna, Nagpur and Dacca rulings in fact go beyond what are the needs of the respondent, Muhammad Shafi, in the present case. In his case, the contention is that he needs the premises in terms of section 10, (2) (d) and (f) for the use of his own son. It is, in our view, established that Muhammad Shafi has three grown up sons whom it is necessary to suitably employ to enable them to start life. It is also not denied nor is it possible to do so, that Muhammad Rafi, one of his sons, has cleared his law examination, and as a matter of choice intends to enter into business. Muhammad Shall, as the owner of the Dilkusha Hotel, has a running and flourishing business. Applicants have been unable to show by any circumstance, or evidence in the learned Rent Controller's Court that the business already with Muhammad Shafi is such as to maintain himself and his growing sons suitably. We are, therefore, convinced that the application of Muhammad Shafi for needing the Cafe De Khan premises occupied by the applicants was bona fide and was urged on reasonable grounds, that from all points of view, the circum stances urged and evidence examined, he has established his need and his prayer was, therefore, rightly granted. We have no hesitation in confirming the same.
24. We may add before finally arriving at our conclusions that after hearing the parties, we had given them an opportunity of settling the matter amongst themselves amicably. It was after considerable time that they stated to us that no settlement has been arrived at. We are, therefore, at this stage passing final orders which are that we confirm the orders of the respondents I and 2, namely, the learned Chief Judge, Karachi Small Causes Court, and the learned Rent Controller, Karachi, in their findings in respect of the grant of the certificate in favour of Muhammad Shafi on the basis of subsection (2) (f) of section 10 of the Karachi Rent Restriction Act, 1953. We set aside the findings in respect of the other grounds on which the application was made, for reasons given earlier in this order.
25. The final result is that we hold in favour of Muhammad Shafi that he needs the premises now occupied by Cafe De Khan in the possession of the petitioners for his own need and that, therefore, the certificate granted to the respondents was validly allowed. We refuse in consequence to restrain Muhammad Shaft from executing the orders of respondents 1 and 2, partially confirmed, for reasons given in this order, and we accordingly dismiss the petition with costs.
A. H.
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