HYDERI KHATOON Versus AFTAB AHMED

This is an appeal against the order, dated 22‑5‑1983 passed by the learned VIth Senior Civil Judge and Rent Controller Karachi in Rent Case No.3331 of 1982 dismissing the appellant's application under section 14 of the Sind Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance).

2. The brief facts leading to the filing of the above appeal are that respondent No.l is the tenant of two shops situated in a building previously owned by Syed Munir Hasan. After the death of Syed Munir Hasan the above property was inherited by the appellant as the widow to the extent of 2 annas share and the remaining share by respondents Nos. 2 to 9 being the sons and daughters. The appellant filed the above Rent Application under section 14 of the Ordinance, on 19‑8‑1982. The above application was resisted by respondent No.l, whereas other respondents supported the appellant's application. The learned Rent Controller on the basis of the pleadings of the parties framed the following three issues:‑

"(1) Whether the application under section 14 is maintainable?

(2) Whether the shop in dispute is required by the applicant for her bona fide personal use?

(3) What should the order be?"

The appellant examined her attorney S. Muhammad Taqi, whereas respondent No.l examined himself. The learned Rent Controller after hearing the learned counsel for the parties by his order under appeal dismissed the above application on the grounds firstly, that the appellant having only two annas share was not entitled to make an application under section 14 of the Ordinance, and secondly, that she being a Pardanashin lady could not run the shop after obtaining the possession of the two shops. The appellant being aggrieved by the above order has filed the present appeal.

3. This case has been called out several times since morning but nobody has turned up for the respondonts. It is 12‑00 noon and, therefore, I have decided to proceed with the case in the absence of respondent No. 1.

4. Mr. Mukhtar Ahmad Naqvi learned counsel for the appellant has urged that the two grounds found favour with the learned Rent Controller referred to hereinabove are not sustainable in law. In furtherance of his above submission he has referred to section 14 of the Ordinance which, inter alia provides that notwithstanding anything contained in the 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. It may be pointed out that proviso to subsection (1) of section 14 makes the above subsection (1) inapplicable if a landlord has rented out the building after he has retired or attained the age of sixty years or has become widow or orphan. Nor the above subsection (1) can be pressed into service by virtue of subsection (2) if a landlord is in occupation of a building owned by him in any locality.

It has, therefore, been contended by the learned counsel for the appellant that there is no prohibition provided for against the filing of an application under section 14 of the Ordinance if a widow does not own the building exclusively.

5. In support of the above submission he has referred to the following cases:‑‑

(i) Mst. Rahiman Bano v. Syed Wasi Ahmad Jaffery 1984 C L C 44, in which a learned Single Judge of this Court held that a widow as a co‑owner of the property is competent to press into service section 14 of the Ordinance.

(ii) Mst. Sardar Begum v. Mst. Hasina Jan 1983 C L C 3258. In the above case, it was held by a learned Single Judge of this Court that the word "Owner" in definition of landlord under section 2 (f) does not only mean a sole owner or ownership of a single individual.

(iii)Ulfat Hameed v. Mst. Birjis Khatoon P L D 1982 Kar. 823 in which a learned Single Judge of this Court, held, that the word building defined in section 2 (a) of the Ordinance cannot be construed for the purpose of section 14 as only a residential building not including commercial building.

6. The appellant has inherited the two shops in question alongwith her children, respondents 2 to 9, who have supported the appellant's application. There can be a case in which a widow may be owning a property exclusively independently from her husband, in such a case there cannot be any difficulty to apply section 14 of the Ordinance after she becomes a widow. But a widow may be a co‑owner in a property before she becomes a widow or she may become co‑owner upon the death of her husband by virtue of inheritance alongwith other legal heirs.

The view taken by this Court in the two cases cited and discussed hereinabove seems to be that a widow as co‑owner is entitled to maintain an application under section 14 of the Ordinance.

I am inclined to hold that a widow as a co‑owner is entitled to press into service section 14 of the Ordinance provided the other co‑owners/legal heirs support her application or the portion of the building for which she has applied for ejectment has fallen to her share upon partition of the property. However, in a case where the other co‑owners/legal heirs do not support a widow in her application under section 14 of the Ordinance, in my view section 14 of the Ordinance cannot be pressed into service. It may be pointed out that in an unpartitioned property each of the co‑owners has joint possession or joint right to possess each inch of the property.

I am also inclined to take the view that the learned Rent Controller has erred in holding that the appellant being a Pardanashin lady cannot run the shop herself. In my view, it is not necessary that a widow who applies for ejectment under section 14 should also prove that she would run the business herself.

I would allow the appeal and set aside the order under appeal with no order as to costs. The case is remanded back to the learned Rent Controller with the direction to decide the case afresh in terms of the observations made above, after. notice to the parties.

H . B . T . Appeal allowed.