FAQIR MUHAMMAD Versus HALIMA BAI
1. This First Rent Appeal is directed against the order, dated 13‑12‑1983 passed by the IInd Rent Controller, Karachi, whereby the eviction application filed by the respondent was allowed and the appellant was directed to handover vacant possession of the premises within thirty days from the date of the order.
2. The facts, which give rise to this appeal are that respondent's son Muhammad Ayub was the owner of Plot No. C‑68 with bungalow thereon in Block 4 and 5, Kutchhi Memon Co‑operative Housing Society, K.D.A. Scheme No. 7, Karachi. The appellant is the tenant in respect thereof at the monthly rental of Rs.1,500. Muhammad Ayub gifted his aforesaid property to the respondent and the said property was mutated in her name by the Karachi Development Authority on 9‑6‑1982. The respondent is a widow as her husband having expired in 1958 and she is more than 60 years of age. She served notice under section 14(1) of the Sind Rented Premises Ordinance, 1979 (hereinafter called the Ordinance). The said notice was served upon the appellant on 27‑6‑1982 and as the appellant failed to send any reply to the said notice nor had he vacated the premises in dispute, she filed Eviction Application No. 3784 of 1982. The appellant filed written statement and stated therein that the provisions of section 14(1) of the Ordinance are not applicable to the present case as she became a widow long before the induction of the appellant.
3. The respondent filed her own affidavit‑in‑evidence in support of the eviction application. In rebuttal the. appellant filed his own affidavit‑in‑evidence. They were cross‑examined by the respective counsel for the parties.
4. The learned Rent Controller on the basis of the evidence adduced by the parties and taking into consideration the arguments advanced by the learned counsel for the parties allowed the eviction application vide order, dated 13‑12‑1983.
5. The appellant being aggrieved against the order, dated 13‑12‑1983 of the IInd Senior Civil Judge and Rent Controller, Karachi, has preferred this First Rent Appeal on the grounds mentioned in the memo of appeal.
6. Mr. Hassan Inamullah the learned counsel for the appellant has raised the following contentions:‑‑
(1) That the respondent became widow in 1958 as such the provisions of section 14(3) of the Ordinance are not attracted to the facts of the case.
(2) That the learned Rent Controller did not take into consideration that the property in question had been gifted in the year 1981 after the death of the respondent's husband and the eviction application was filed for eviction which admittedly shows the mala fide intention of the respondent.
7. On the other hand Mr. Q. H . Sayeed the learned counsel for the respondent has submitted that the respondent "has attained the age of 60 years" cannot be given restricted meaning as canvassed by the learned counsel of the appellant. He has also submitted that the application is not mala fide as alleged by the learned counsel for the appellant. The finding of the learned Rent Controller is in accord with the evidence on record.
8. Reverting to the contention of Mr. Hassan Inamullah that the respondent "has attained the age of 60 years or has become widow" should only cover the case of those persons who have attained the age of 60 or has become widow in the recent past. Mr. Hassan Inamullah has submitted that the respondent became widow in 1958 and she attained the age of 60 in 1966, the provision of section 14 could not have been pressed into service in this connection. It will be advantageous to reproduce the original proviso 1 of section 14 which reads as under:
9. "Provided that nothin6 in this subsection shall apply where more than six months have elapsed since the landlord has retired or attained the age of sixty years or, as the case may be, has become widow or orphan."
10. The above proviso was substituted by Sind Rented Premises Ordinance (Second Amendment) Ordinance, 1980.
11. It may be noticed that prior to the amendment a landlord /landlady falling within any of the above categories could file an application within six months from the date of his qualifying to one of the above categories. In other words, in the instant case, under the original proviso 1, the respondent could not have filed an application under section 14(1), as six months after attaining the age of 60 years had already expired on or about 1966 or 1967. She became widow in 1958. A However, in the abovequoted substituted proviso no such period has been provided and, therefore, it must follow that a landlady who has already become widow or who has already attained the age of 60 years at the time of promulgation of the Ordinance and the amendment of the above proviso, could file an application for eviction on the ground of personal requirement irrespective of the fact that she became widow in 1958 or she had attained the age of 60 years in 1966.
12. The question whether she has become widow or has attained the. age of 60 years before the coming into force of the Ordinance and the amendment of 1980, within the proviso of section 14(1) depends upon the construction of that proviso. The relevant words "has retired or attained the age of 60". The present perfect tense contemplates a completed event connected in some way with the present time. It does not matter that she became widow or attained the age of 60 years was B either before or after the substitution of the first proviso. All such qualifications are within the purview of the first proviso. The argument of the learned counsel for the appellant that the provisions of section 14 and the first proviso takes away vested rights and should not be Given a retrospective effect is based on fallacious assumption. The provisions of section 14(1) are applicable to the specified persons.
13. Reverting to the second contention of Mr. Hassan Inamullah that the application is mala fide. This contention is devoid of force. His contention is that the appellant was inducted by Muhammad Ayub on 15‑8‑1969 at the monthly rental of Rs.800 vide agreement of lease, dated 15‑o‑1969. The rent was subsequently enhanced to Rs.1,500 per month. His contention is that he was inducted as tenant after she became widow as well as after she attained the age of 60. It is advantageous to reproduce proviso to section 14(1) of the Ordinance which reads as under:‑
14. "Provided that nothing in this subsection shall apply where the landlord 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."
15. This question has been considered by my brother Ajmal Mian, J. in his unreported Judgment, dated 1‑2‑1981 in F.R.A. 5 of 1981 Mumtazuddin Ahmed v. Mrs. Sultan Jehan Begum in which my learned brother has come to the conclusion after giving cogent reasons that under the above substituted proviso no such period has been specified. The tenant filed Civil Petition for Special Leave to appeal being No. 34 of 1981. The Hon'ble Supreme Court while refusing leave to appeal observed as follows: ‑
16. "The second contention of the learned counsel for the petitioner was that the respondent landlady had rented out another flat to one Mansoor in the year 1974 and she was, therefore, under the proviso to section 14, reproduced hereunder, not entitled to have recourse to summary eviction procedure:
17. 'Provided that nothing in this subsection shall apply where the landlord had 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.'
18. The arguments overlook the facts that the respondent landlady has no right to seek summary eviction on the ground that she had attained the age of sixty years when she rented out another flat to one Mansoor, for the Ordinance was enacted in the year 1979 and the proviso, referred to above was added in the year 1980. To accept the argument of the learned counsel would mean to give retrospective effect to the Ordinance, which is not its intent and it must, therefore, follow that the limitation contained in the said proviso will operate upon facts coming into existence after the landlady has become entitled to seek summary eviction under subsection (1) of section 14 of the Ordinance."
19. The above dictum is fully applicable to the facts of this case. 1 am of the view in order to disentitle a landlady from invoking section 14 of the Ordinance, she should have rented out the premises after the promulgation of the Ordinance and not prior to the Ordinance notwithstanding that she might had become widow or might had attained the age of 60 years or might had rented out a tenement owned by her after attaining the age of 60 years or becoming a widow.
20. The respondent filed affidavit‑in‑evidence in which she repeated the same facts which are stated in her eviction application. She denied the suggestion in cross‑examination that she filed the case only to accommodate her younger son after vacation. She also denied the suggestion that she did not require the premises for personal use. In rebuttal the appellant filed his affidavit‑in‑evidence but he did not submit himself for cross‑examination. The burden was on the appellant which, he failed to discharge. It seems that the order of the learned Rent Controller is in accord with the evidence on the record. It seems that the application is not mala fide.
21. For the foregoing reasons I do not find any merit in this First Appeal. The same is dismissed with no order as to costs. However, the appellant is allowed to vacate the premises within one month from the date of the order.
22. A.A. Appeal dismissed.