RAHIMAN BANO Versus WASI AHMAD JAFFERY

By this appeal the appellant Mst. Rahiman Bano has impugned judg ment of the IVth Senior Civil Judge and Rent Controller, dated 15th July, 1982 dismissing the application filed by the appellant for ejectment of the respondent Wasi Ahmad Jaffri from the disputed premises.

2. As disclosed in the impugned judgment, the appellant is the widow of Muhammad Yakoob who was owner of the disputed premises comprising of three shops in quarter No. 26/1 Malir Extention, Karachi. These shops were let out by Mohammad Yakoob to the respondent Wasi Ahmad Jaffri for three years in 1967. As family of Muhammad Yakoob expanded with the passage of time he asked the respondent to return the shops. The respondent, however failed to oblige the said Muhammad Yakoob, who instituted ejectment proceedings in the Court seeking his ejectment from the shops. Consequent upon the death of Muhammad Yakoob the appellant became a widow and in that capacity she filed a fresh case in her own right seeking ejectment of the respondent under section 14 of the Sind Rented Premises Ordinance, 1979 (hereinafter referred as the Ordinance). The learned Rent Controller after considering the evidence produced by both the parties dismissed the ejectment application of the, appellant. Accor dingly she has preferred this appeal.

3. The learned counsel for the parties were beard at great length and the impugned judgment was examined in the light of their arguments. On perusal of the impugned judgment, it would appear that the learned Rent Controller disposed the case on technical grounds.

4. It goes without saying that following the demise of Muhammad Yakoob, the original owner of the shops in dispute, his heirs including his widow namely the appellant Mst. Rahiman Bano succeeded to the owner ship of the disputed shops. It is also not denied that by the time of eject ment application was filed by the appellant, the disputed shops were still joint property and the appellant was one of the owners thereof. In other words she was not the exclusive owner of the said shops. The learned Rent Controller took the view that section 14 of the Ordinance has been specially designed to help widows only in respect of their own property. What he meant to hold was that unless the property in dispute is the exclusive property of the widow, the said section till not be attracted. In the instant case the learned Rent Controller found that the shops in dispute are jointly owned by the appellant with the other heirs and consequently it was held by him that the appellant is not entitled to the relief under section 14 of the Ordinance.

5. In order to appreciate the reasoning given by the learned Rent Controller in support of the impugned order it would be advantageous to reproduce section 14 which reads as under;

"Delivery of vacant possession.‑(1) Notwithstanding anything con tained in this Ordinance or any other law for the time being in force, the landlord of a building who is a widow, or a minor whose both parents are dead or a salaried employee due to retire within the next six months or has retired or a person who is due to attain the age of sixty years within the next six months or has attained the age of sixty years, may, by notice in writing inform the tenant that he or she needs the building for personal use and require him to deliver vacant possession of the building within such time as may be specified in the notice, not being earlier than two months from the receipt thereof ;

`Provided that nothing in this subsection shall apply where the land‑lord has rented out the building after he has retired or attained the age of sixty years or, as the case may be, has become widow or orphan.'

(2) The landlord shall not be entitled to avail the benefit of sub section (1) if he is in occupation of a building owned by him in any locality.

(3) Where the tenant has failed to deliver the possession of the build ing under subsection (1). the Controller shall, on application by the landlord in this behalf, order eviction of the tenant from the building in a summary manner, by using such force as may be necessary."

6. The above provision clearly shows that if the landlord is widow, she can avail the beneficial provisions of section 14 by getting the disputed premises vacated by summary procedure. The only bar imposed on the widow is provided in subsection (2) of the said section. It shows that she cannot invoke section 14 in her aid in the case she is occupying some other building of her own in the same locality. There is absolutely nothing in: the section which may be construed as prohibiting the widow from] availing section 14 if the building in dispute is not her exclusive property, but is owned by her jointly with other legal heirs. If such prohibition is, read in the section 14, it would virtually amount to negation of the very purpose for which the section has been enacted.

7. In a majority of the cases when husband of a woman dies and she; becomes widow, she immediately inherits the property left by her deceased` husband jointly with other heirs. It is common knowledge that such joint property taxes a long time, in some cases years on end to be partitioned amongst the heirs. Again there are cases in which the property is never partitioned or is partitioned after the minor children of the deceased owner who after his death become the responsibility of his widow, have attained majority. Thus, the partitioning of the property of the deceased owner, depends upon the circumstances obtaining in each individual case. If the widow has no other property excepting her share in the joint property left by her deceased husband she would be hit hard if she is refused the relief permissible under section 14 on the ground that the property in question does not belong to her exclusively. In that event her sufferings would continue indefinitely until she succeeds in getting the property partitioned. Surely such an intention cannot be attributed to the wisdom of the Legislature.

8. All that is required by section 14 is that before taking action under that section it should be ensured that the landlord is a widow and she is not occupying any other property of her own in the same locality. It is immaterial if the property where from the tenant is sought to be ejected is the exclusive property of the widow or she owns the said property jointly with other legal heirs. In this connection reliance has been placed on the precedent case reported as Khalig Ahmad v. Abdul Ghani and others (P L D 1973 S C 214) wherein it was held :‑--

"A suit for possession can be brought by all the co‑owners jointly. It is open, however, to one of them also to sue for possession, but he must join the other co‑owners as defendants and the decree will be for joint possession and not in favour of the plaintiff only. Unlike that a suit for ejectment can be filed by one of the co‑owners with out joining the others as defendants. This is the difference between an action for possession and an action for ejectment. If this clear distinction was kept in view, certificate of fitness under clause 10 of the Letters Patent would not have been granted, nor the appeal admitted to hearing by the Division Bench.

9. The dictum laid down by the above authority clearly shows that a co‑owner of the property is competent to seek ejectment of the tenant fro 'm the joint property belonging to such owner and other legal heirs.

10. For above reasons the impugned order cannot be sustained and it is accordingly set aside. The appeal is accepted and the case is remanded to the Court of the Rent Controller with direction that after giving fresh opportunity to both parties to lead additional evidence, if any, the Rent Controller will decide the case on merits.

M. Y. H. Appeal accepted.