Mirza ABID BEG Versus Mrs. ZARINA SHAMS

1. By this petition, the petitioner has challenged the judgment dated 20‑7‑2002 passed by the learned District Judge, Karachi (Central) by which the respondent No. 1's appeal bearing No. 141 of 2001 was allowed and the order of Rent Controller dismissing the rent case was set aside.

2. The facts of the matter are that the respondent No.1 is the landlady of shop bearing Nos.10 and 96 in Hadi Market, Nazimabad No.4, Karachi in respect of which the petitioner is the tenant by virtue of a tenancy agreement dated 17‑9‑1987. The husband of the respondent No.1 Shamsul Hassan Ansari expired on 21‑9‑1992 and the respondent No. 1 became widow. The respondent No. 1 sent a legal notice dated 19‑1‑1993 to the petitioner under section 14 of Sindh Rented Premises Ordinance, 1979 (hereinafter called the Ordinance) for vacation of shops by the petitioner on the ground of personal need. The petitioner did not vacate the shops. The respondent No.1 filed Rent Case No.149 of 1993 in the Court of 1 st Senior Civil Judge and Rent Controller (Central), Karachi under section 14 of the Ordinance, for ejectment of the petitioner from the said shops. The petitioner contested the rent case and filed his written statement in which the petitioner denied that the respondent No. 1 is owner of the shops in question. With regard to the personal need, the petitioner took the stand that the respondent No.1 claims to be the owner of six shops in Hadi Market, including the shops in occupation of the petitioner and has filed eviction application under section 14 of the Ordinance against other tenants as well without disclosing her bona fide requirement and that the rent case has been filed by the respondent No.1 with mala fide intention for obtaining exorbitant increase in rent and to fetch huge Pugri from the new tenant. The petitioner has further stated that the application is not maintainable inasmuch as the respondent No.1 is entitled to claim only one shop under section 14 of the Ordinance. The petitioner further stated that the legal notice sent by the respondent No.1 was replied by it vide letter dated 19‑1‑2003 and thus sought dismissal of the ejectment application. The respondent No.1 filed her own affidavit‑in‑evidence and an affidavit‑in- evidence of her younger sister Mrs. Kaneez Aftab. Both the respondent No.1 as well as Mrs. Kaneez Aftab were cross‑examined. The petitioner filed his affidavit‑in‑evidence who was also cross‑examined. The Rent Controller after hearing the Advocates of the parties passed judgment dated 29‑4‑1999 by which the rent case filed by the respondent No.1 was dismissed. Respondent No. 1 filed F.R.A. No.141 of 2001, which has been allowed by the impugned judgment.

3. Arguments of Mr. Umar Qureshi, counsel for the petitioner and of Mr. S.A. Jalib Choudhry counsel for the respondent No.1 were heard by me and judgment was reserved. To obtain certain clarification, the matter was fixed for re‑hearing on 21‑4‑2003 on which date only Mr. Umar Qureshi appeared and he took time for providing information and the matter was adjourned to 23‑4‑2003. On this date too only Mr. Umar Qureshi appeared and filed a statement showing the status of all the shops involved in the three rent cases. Argument of both the learned counsel however are considered.

4. Mr. M. Umar Qureshi, learned counsel for the petitioner has argued that the respondent No.1 had filed three rent cases bearing Rent Case No. 149 of 1993 against petitioner in respect of Shops Nos. 10 and 96, Hadi Market, Rent Case No.150 of 1993 against Muhammad Rizwan‑ul‑Haq in respect of having Shop No.95 Hadi Market and Rent Case No.151 of 1993 against Mehmood Hussain Khan in respect of Shops Nos. 11, 12 and 94, Hadi Market. He has stated that Rent Controller allowed Rent Case No. 150 of 1993 and dismissed Rent Cases Nos. 149 of 1993 and 151 of 1993. The respondent No.1 filed appeal against dismissal of her two rent cases whereas the tenant also filed an appeal against allowing of Rent Case No. 150 of 1993 and the Appellate Court by the impugned judgment decided all the three appeals by the common judgment. The learned counsel stated that the appeal filed by the tenant in respect of Rent Case No. 150 of 1993 was dismissed and the respondent No.1 has obtained possession of Shop No.95 and thus the personal need of the respondent No.1 stands fulfilled and respondent No. 1 is not entitled to obtain ejectment of the petitioner from shops in question. Learned counsel for the petitioner has further submitted that the respondent No. 1 in her affidavit‑in‑evidence has stated that the respondent No. 1 intends to establish an industrial home in the premises in question. He has referred to the cross examination of the respondent No. 1 in which she has stated that all her three sons are out of Pakistan and that no. licence for industrial home has been obtained and that she does not run industrial home nor has experience to run the same and that she has no money for industrial home. Learned counsel has submitted that the respondent No. 1 has failed to make out case for ejectment of the petitioner and the impugned judgment granting ejectment of the petitioner is based on misreading of evidence as well as non appreciation of law. He has relied upon the case of Mst. Razia Khatoon v. Dr. Roshan H. Nanji 1991 SCMR 840, Shaikh Muhammad Khalid v. Fakhruddin 1992 CLC 2307, Muhammad Ali Ahmed Khan v. Messrs Touseef Engineering Works 1991 CLC 1051, Abdul Rasheed v. Khalid Yousaf Company 1992 MLD 1654, Khawaja Shahzad Hassan v. District Sessions Judge, Rawalpindi 1992 MLD 1574, Laldin Masih v. Mst. Sakina Jan 1985 SCMR 1972, Saeed Ahmed v. Tariq Nazir Butt 1987 SCMR 220.

5. Mr. S.A. Jalib Choudhry, learned counsel appearing for the respondent No. 1 has contended that there was no dispute between the parties on material facts and the order of the Rent Controller was patently illegal as the respondent No. 1 has proved the case of her personal requirement of the shops in question. He has stated that one vacated shop is not enough for the requirement of the respondent No. 1 for running of an industrial home and that the petitioner in evidence has not denied the fact that the shops in question are required by the landlady for her own use. Learned counsel has further contended that the petition is not maintainable and has relied upon Mst. Saeeda Begum v. Muhammad Nawabuddin 2001 SCMR 1584, Mst. Wahabun Nisa v. Haji Abdul Sattar 1989 CLC 517, Dr. S.C. Kou v. Mst. Khursheed Begum PLD 1997 SC 842, Mst. Wahbun Nisa v. Haji Abdul Sattar 1989 CLC 517, Muhammad Mansha v. Sabir Ali 1999 SCMR 1782, Syed Hasar. Askari v. Muhammad Aziz PLD 1989 SC 1, A.R. Tahir v. Muhammad Ali & Sons 1992 MLD 2234, Qamaruddin v. Hakim Mehmood PLD 1983 Kar. 570, Mst. Syeda Hyderi v. Aftab Ahmed 1986 CLC 1534, Mst. Husna Begutn v. Haji Din Muhammad 1999 CLC 1399, Muhammad Bux v. Karim Bux alias Kamanlala 1987 CLC 475, Muhammad Bux v. Karim Bux alias Kaman Lala 1987 CLC 13, Mrs. M.S. Baroba v. Manzoor Ahmed 1992 SCMR 1158, Salim Ahmed Khan v. Mst. Jamila Latif 1990 SCMR 1117, Iqbal Book Depot v. Khatib Ahmed 2001 SCMR.1197, Matloob v. Mst. Saeeda Khatoon 1988 SCMR 1575, Mst. Akhtar Sultana v. Syed Abdul Qayyum 1985 CLC 534 and Muhammad Ashfaq v. Suleman 1985 CLC 2374.

6. I have considered the arguments of the learned counsel and have gone through the record as well as the case‑law cited by them.

7. The petitioner counsel assertion that the respondent No.1 has taken possession of one Shop No.95 pursuant to the ejectment order passed in Rent Case No. 150 of 1993 is conceded by the respondent No.1 counsel. In the case of Mst. Razia Khatoon (supra) relied upon the counsel for the petitioner the Honourable Supreme Court of Pakistan at page No.845 has observed as follows:‑‑

8. "13. As regards the relief, we find that where two separate tenancies are involved, both of the same character i.e., residential or commercial, they cannot be got vacated by, recourse to section 14 because a restricted right has been made available to a special category for a purpose. We find that in no other case referred to us, a right to get two such premises forming different tenancies, was ever recognized in proceedings under section 14 of the Ordinance. The case to which we are referred namely, Muhammad v. Dilawar Khan Durrani and Dilawar Khan Durrani v. Muhammad Civil Appeals Nos. 112‑K and 13‑K of 1987, three shops were got vacated but they formed the subject‑matter of one tenancy and not separate. Similarly, in Bakar v. Mst. Khatoon Hajin Kala alias Kala Begum C.P.L.A. No.266‑K of 1987 the tenancy was one and the shop had an internal partition so as to utilise it as two. In Mst. Khurshid Azmat Ali v. A.S. Mughal and Ayub Sultan, respectively Civil Appeals Nos.9‑K and 10‑K of 1982 two flats had been got vacated by recourse to section 14 but an objection on this ground was not taken nor decided.

14. Finding that the appellants were entitled to get only one shop vacated, we would allow the appeal relatable to Rent Controller Petition No.5330 of 1981 in possession of Dr. Roshan H. Nanji i.e. Civil Appeal No.64‑K of 1986, which happens to be in point of time according to serial number, an earlier instituted petition, thereby exhausting the right claimable under section 14 of the Ordinance, making it in exercisable in respect of the other shop. In the circumstances, Civil Appeal No.64‑K of 1986 is allowed. The judgment of the High Court is set aside and that of the Rent Controller restored. The other appeal (Civil Appeal No.65‑K of 1986) in the circumstances of the case, stands dismissed. This judgment is without prejudice to the other proceedings that have been taken place between the parties ...."

9. Thus the established law is that the owner of premises under different tenancies of same character cannot get all the tenancies vacated but is entitled to get only one tenancy vacated under section 14 of the Ordinance. The provision of section 14 of the Ordinance being special in nature creating restricted right cannot be extended to other tenancies even through the premises got vacated may not be sufficient for the requirement of the landlord. For the purpose of obtaining of premises on the ground of bona fide need, the landlord remedy is to file application under section 15 of the Ordinance.

10. The Rent Controller by its judgment has dismissed the rent case on the ground that the respondent No. 1 having claimed vacation of two shops from the petitioner therefore application was not maintainable. The Appellate Court in its judgment found that there is no limitation on the number of premises which the landlady can get vacated under section 14 of the Ordinance and thus allowed the appeal of the landlady. As stated above, the Honourable Supreme Court in the case of Mst. Razia Khatoon (supra) has clearly laid down the law on the right of the landlord under section 14 of the Ordinance which is restricted to obtaining of possession of one tenancy only. The finding of the Appellate Court is in conflict with the law laid down by the Honourable Supreme Court of Pakistan. The judgment of the Appellate Court is thus contrary to law.

11. The respondent No.1 has admittedly obtained possession of Shop No.95, Hadi Market pursuant to ejectment order passed in Rent Case No. 150 of .1993 and maintained in F.R.A. No. 143 of 2001 which too was the case under section 14 of the Ordinance. On obtaining possession of the shop in exercise of the right under section 14 of the Ordinance, the restricted right conferred on the respondent No. 1 by the said section of the Ordinance stood exhausted. Consequently, this petition is allowed and the judgment of the Appellate Court is set aside and the judgment of Rent Controller dismissing the rent case is maintained though for reasons mentioned in this judgment.

12. M.B.A./A‑466/K Petition allowed.