RAZIA BEGUM Versus GHULAM SARWAR MALIK

1. The Respondent has made this application under section 21(3) of the Sind Rented Premises Ordinance, 1979 with a prayer that the judgment and decree in suit No. 2814/85 passed by the learned 7th Senior Civil Judge, Karachi, East may be brought on record and be read in evidence. At the hearing of the appeal learned counsel for the Respondent admitted that the decree in the above suit has been set aside and suit itself has been dismissed for non‑prosecution and at present only an application for its restoration is pending before the Court. In these circumstances this application has become infructuous and is accordingly dismissed.

2. This application is made by Mst. Zubeda Ashraf and 8 others claiming themselves to be the legal heirs of Muhammad Ashraf and tenants in respect of first floor of the suit premises. A similar application was moved by these Intervenors before the Rent Controller for joining them as parties in the case but it was withdrawn unconditionally. Learned counsel for the Intervenors was absent yesterday when the case was heard and he is also absent today. Even otherwise the application appears to be without any merit. This application is dismissed.

3. This appeal under section 21 of the Sind Rented Premises Ordinance, 1979 is filed by the appellant against the order of Rent Controller dated 2‑3‑1984. By the impugned order the learned Rent Controller dismissed the ejectment case instituted by the appellant against the respondent under section 14 of the Ordinance. The Rent Controller framed the following 4 issues in the case on the basis of the controversies in the case:‑‑

2. "(1) Whether the application is not maintainable?

(2) Whether there exists relationship of landlord and tenant between the parties regarding the first floor of the house in dispute?

(3) Whether the applicant is entitled for ejectment of the opponent from the premises in question under section 14 of Sind Rented Premises Ordinance, 1979?

(4) What should the order be?"

3. Issues No. 1 and 2 were answered in the affirmative and Rent Controller reached the conclusion that the application is maintainable and there existed relationship of landlord and tenant between the parties in respect of the first floor of the said premises. However, on issue No. 3 the learned Rent Controller came to the conclusion that the appellant had failed to establish her bona fide requirement in respect of the premises and as such she was not entitled to claim eviction of the respondent from the premises. In arriving at the above conclusion the learned Rent Controller was impressed by the fact that the appellant became a widow on 22‑11‑1973 while the Sind Rented Premises Ordinance, 1979 was enforced in November, 1979, but the application for eviction of respondent under section 14 of the Ordinance was filed after about 2 years of the promulgation of Ordinance which in the opinion of Controller amounted to unreasonable delay in filing the application. The other consideration which weighed with the learned Rent Controller in reaching the conclusion that the appellant failed to establish her bona fide requirements was that her attorney admitted in cross‑examination that the object of seeking eviction of the respondent from the premises was to accommodate the attorney in the premises and that in a petition which the appellant had addressed to the President of Pakistan she had admitted that she wanted to settle down in Rawalpindi and let out the premises owned by her in Karachi.

4. Mr. Khalid Latif, learned counsel for the appellant contends that firstly in view of the law laid down in the case of Ulfat Hameed v. Birjees Khatoon P L D 1982 Kar. 823 the Rent Controller was not entitled to embark upon an enquiry as to the genuineness of the need of the appellant under section 14 of the Ordinance and secondly the finding of the Rent Controller that the appellant had failed to establish her bona fide need is based upon misreading of the evidence on record. Mr. Rehanul Hassan Farooqi, learned counsel for the respondent on the other hand supported the judgment of Rent Contoller and urged (i) that the appellant being a widow and only one of the heirs of the deceased landlord was not entitled to maintain the application exclusively in her own right in the absence of other co‑owners of property specially when her share in the property was not partitioned; (ii) that in spite of the law laid down by this Court that a Rent Controller while dealing with an application under section 14 of the Ordinance could not examine the bona fide or otherwise of the need expressed by a landlord, the Rent Controller had to determine at least the existance of need expressed by landlord before passing an order ordering eviction of tenant under section 14 of the Ordinance; and (iii) that the Rent Controller while deciding issue No. 2 wrongly held respondent as the tenant of first floor of the suit premises as well, contrary to the evidence on record.

5. I will first deal with the last contention raised by the learned counsel for the respondent, as it relates to the very jurisdiction of the Rent Controller to proceed with the rent case. In her rent application the appellant pleaded in detail all those facts which constituted tenancy of both the floors of the suit premises in favour of respondent. The respondent in reply to above allegations of appellant in her rent application, took the plea that insofar the tenancy in respect of the ground floor of the premises was concerned it was transferred in his favour after the termination of the lease agreement between the late husband of the appellant and the Singer Sewing Machine Company but upon cancellation of the agreement of lease in respect of first floor he surrendered possession thereof to the late husband of appellant who let out the same to one Mohammad Ashraf Qureshi. It is an admitted position that this Mohammad Ashraf Qureshi was a close relative of respondent. The appellant's attorney in his evidence before the Rent Controller alleged that after the death of the husband of the appellant in the year 1973 the respondent continued' to pay rent for both the floors of the premises (namely ground floor and lst floor) to appellant by means of account payee's cheques from 1974 to 1976. He gave full details of those payments in his evidence. The above statement of appellant's attorney was not at all disputed in cross‑examination, and on the contrary the respondent in his evidence admitted these payments though pleaded that he made these payments on behalf of the tenant of 1st floor. It is significant that from 1974 upto 1976 when the rent application for eviction was filed against the respondent he paid rent for both the floors of the premises without any protest. No effort was made to examine the occupant of 1st floor of the premises in support of the plea of respondent that, the rent for the 1st floor was paid by the respondent on behalf of the tenant of 1st floor. In these circumstances, the Rent Controller) rightly reached the conclusion that the respondent was a tenant of the first floor premises in addition to the ground floor.

6. The next contention of the learned counsel for the respondent in the case is that the appellant being a widow is entitled only to 1/8th share in the property and as such she was not entitled to file case for eviction of respondent in the absence of other heirs of the deceased landlord. In support of this contention the learned counsel for the respondents relied on the cases of Mst. Fatima Bi v. Issa, (1986 CLC 2639), Mrs. Sayeda Haidry v. Aftab Ahmed (1986 CLC 1534). In the first noted case a widow had applied for eviction of a tenant on the ground of personal and bona fide need of two portions of a building. The learned Judge while dealing with the right of the widow to file the case on the basis of her inherited share observed that she being entitled to only 1/8th share in the property and 7/8th share belonging to other heirs who had not come forward to support her in her application was not entitled to apply for eviction of tenant from two tenements for which she failed to establish her need. This case is not on the point. In the second case another learned Single Judge of this court while repelling the contention that a widow having inherited only a very small fraction of the property on the death of the landlord could not maintain an application for eviction under section 14 of the Ordinance, held that application under section 14 of the Ordinance by a widow as a co‑owner is maintainable in respect of the whole premises provided the other co‑owners/legal heirs support her application. It was also observed by the learned Judge in that case that where other co‑owners/legal heirs do not support the widow in her application under section 14 of the Ordinance she could not apply for eviction of the tenant under that provision of law. The consistent view taken by this Court in this regard is that a widow as co‑owner of the property is entitled to maintain an application under section 14 of the Ordinance in her own name. It is not necessary in such proceedings that other co‑owners must be joined as party or that they should come forward to support her in the case. Reference in this connection may be made to the following cases:

(1) Mst. Rehman Bano v. Syed Wasi Ahmed Jaffari (1984 CLC 44),

(2) Jorg Levy v. Mst. Zakia Sultana (1984 CLC 3066),

(3) Mst. Safia Bai v. Abdul Sattar (PLD 1983 Kar. 419).

7. It may be mentioned here that against the decision in the case of Mst. Safia Bai v. Abdul Sattar noted above, a petition for special leave to appeal was filed in the Supreme Court (CPSLA No.K‑204/82) and it was urged that a widow who inherited the premises on the demise of landlord jointly with other co‑owners was not competent to file eviction application exclusively in her own right but the contention was repelled as follows:‑

8. "As regards her being possessed of only a small share, the rest belonging to other legal heirs of her late husband, even that did not make any difference. She being the landlady and owner though not exclusive, was competent to invoke the provisions of section 14 (1) of the Sind Rented Premises Ordinance."

9. Similarly in another civil petition for leave to appeal No.142‑K/83 decided on 27th August, 1987 (Mohammad Ali v. Mst. Hameeda Begum), a similar contention raised before the Supreme Court that a widow who is not the sole owner of a deceased landlord could not take advantage of the provision of section 14 of the Sind Rented Premises Ordinance, 1979, was repelled as follows:‑

10. "The only point canvassed on behalf of the appellant is that the respondent was not entitled to take advantage of this provision as it was available to only such a widow who was either the sole heir of the original landlord or owned the rented premises in her own right before the death of her husband. It is argued that in a case where the original landlord leaves behind other heirs also apart from the widow, the widow gets relegated to the status of the other heirs for recognition of a right in her to move an application under the said provision by herself alone would be in derogation of the interest of the other heirs in the property.

4. It is difficult to agree with the contention raised on behalf of the appellant. Quite obviously the object of section 14 (1) ibid, is to lessen the hardship which a widow not infrequently faces on the death of her husband and to assist her in settling down again. Therefore, it will not be proper to construe this provision in a manner which would defeat the very purpose for which, it has been enacted. The relevant words in the subsection are: "the landlord of a building who is a widow". There is no reason at all why these words should be taken to refer only to a widow who was the owner of the building before the death of her husband or who is also heir of the original landlord. Such a narrow construction would leave out from the benefit of the provision in question as widow with minor children who has to leave the residence which was formerly given to her husband by his employer or one who purchases a house for personal use from the funds made available to her on the death of her husband; there is no compelling reason for placing such a narrow construction on the provision."

11. In view of the above legal position I am of the view that the application/filed by the appellant for eviction of the respondent did not safe from any legal defect. Apart from it in the present case the appellant produced evidence before the Rent Controller to show that upon the demise of her husband the property was mutated in her name exclusively according to bye‑laws of PECHS and right from 1974 upto 1976 the respondent continued to pay rent to the appellant in respect of the premises in his occupation and no one protested against it. In these circumstances the appellant was fully covered within the definition of landlord as given in the Ordinance. I, therefore, find no substance in the second contention of the learned counsel.

12. The last contention of the learned counsel for the respondent in support of the order of Rent Controller is that the Rent Controller having reached the conclusion that the appellant had failed to establish her bona fide need was right in dismissing the application. I have already pointed out the consideration which weighed with the learned Controller in refusing the application of the appellant under section 14 of the Ordinance. The first consideration which weighed with the Controller was that in spite of the fact that the Ordinance came into operation in 1979 the appellant unreasonably delayed filing of application under section 14 of the Ordinance for about 2 years. This observation of the Rent Controller is based on a misapprehension with regard to the correct legal position. Sind Rented Premises Ordinance, 1979 was promulgated on 21st November 1979 and section 14 thereof as originally enacted in the Ordinance provided that a widow could apply for eviction of the tenant under section 14 thereof after giving two months' notice, provided a period of not more than six months had lapsed before she had become a widow. It is an admitted position in the case that the appellant became a widow in the year 1973 and as such on the date of promulgation of Sind Rented Premises Ordinance, 1979 in November 1979 she could not apply under section 14 of the Ordinance for eviction of the respondent. However, by the 2nd Amending Ordinance 12 of 1980 the original proviso to subsection (1) of section 14 was omitted and in its place a new proviso was added. Under the newly added proviso the appellant became entitled to apply under, section 14 as the limitation of 6 months provided in the original proviso was omitted. This amendment was introduced on 1st September, 1980 only while the appellant applied for eviction of respondent on) 10‑2‑1981. As such there was no delay in filing the application ‑‑I held by the Rent Controller. The second consideration on which the learned Rent Controller refused to grant the application for eviction was that firstly the attorney of the appellant in his cross‑examination admitted that the application was filed in order to accommodate him in the premises and secondly, in a representation addressed by the appellant to the President of Pakistan she had expressed her intention to settle down in Islamabad and to let out the premises situated in Karachi. Learned counsel for the appellant contends that both the conclusions of Rent Controller are based on misreading of evidence on record. After going through the evidence of the attorney it is quite clear that what he had said in cross‑examination in reply to a question by the respondent's counsel was that the appellant will accommodate him alongwith her in the premises in the event of eviction of the respondent. It is, therefore, rightly urged by the learned counsel for the appellant that the observation of the learned Rent Controller that the attorney had admitted in cross‑examination that the application was filed by the appellant to accommodate him in the premises only was clearly based upon misreading of the cross -examination of the appellant's attorney. Similarly the representation addressed to the President of Pakistan is on record as Ex.8. It is nowhere mentioned in that representation that the appellant wanted to settle down at Islamabad and rent out the house in Karachi. What was stated in the representation by the appellant which was addressed to the President of Pakistan was that his late husband after his retirement had requested the respondent to vacate the house as he was living in a rented house in Islamabad and he had a great desire to purchase a house for his own in Islamabad but this request was never acceded to by the respondent and the late husband of the appellant died in the year 1973. The aforesaid statement cannot be construed as an expression of the desire by the appellant to settle down at Islamabad as held by the Rent Controller in the impugned order. In addition to it, it is has been held in a string of decided cases that while dealing with an application under section 14 of the 1 Ordinance the Rent Controller is not competent to go into the question of the bona fide or otherwise of the need and requirement expressed by the landlord. The scope of section 14 was examined by me in detail in the case of Ulfat Hameed v . Mst. Birjees Khatoon (PLD 1982 Kar. 823) and I reiterated the above view in two subsequent cases reported as Mst. Mahmooda Begum v. Mohammad A. Rauf (1986 CLC 1741) and Mst. Refat Parveen v. Kaniz Fatima (1986 CLC 1745). Learned counsel for the appellant has drawn my attention to the decision in the case of Azmat Hayat Khan v. Mushir Azam (1984 CLC 2635) decided by Ajmal Mian, J. in which the learned Judge recorded a statement of the respondent's counsel to the effect that a petition for leave to appeal bearing No. CPSLA No. J‑28/82 against the decision in Ulfat Hameed's case was summarily dismissed by the Supreme Court. it is accordingly urged by the learned counsel for the appellant that the law laid down by me in Ulfat Hameed's case holds the field today. As against the decision in Ulfat Hameed's case the learned counsel for the respondent has relied on the decision in the case of Mst. Fatima Bai v . Essa (1986 CLC 2639) , Ghulam Mohammad v . Zaheer Ahmed (1986 CLC 681), Mohammad Yousuf and another v. Mohammad Zubair Khan (1985 CLC 165).

13. In the Fatima Bails case which I have already referred while considering the right of widow as a co‑owner to make an application for eviction under section 14 of the Ordinance, the learned Judge made only a passing reference that the need expressed by the applicant in that case under section 14 has to be proved. No reasons were given in support of the above conclusion. In Mohammad Yousuf and another v . Zaheer Ahmed, the learned Judge while disposing of the contention of the appellant did observe that a landlord has to show that he required the premises for his personal and bona fide use and occupation but on the facts of that case the learned Judge reached the conclusion that the personal and bona fide requirements were established. Therefore, in this case too the point neither arose directly nor it was decided. However, in the third case decided by another learned Judge of this Court reported as Ghulam Mohammad v. Zaheer Khan (1986 CLC 681) it was held that need contemplated under section 14 of the Ordinance is not mere desire on the part of the landlord and in spite of the fact that the Rent Controller may not be competent to go into the question of bona fide need of the landlord yet in order to grant ejectment under section 14 he must adjudicate as to the need expressed by the landlord. It is this case which is heavily relied upon by the learned counsel for the respondent in support of his contention in this case. It is not necessary here to examine the correctness of, the view expressed in Ghulam Mohammad's case as neither such a contention was raised before the Rent Controller nor any such finding has been recorded in this case by the Rent Controller. The Rent Controller in the impugned order clearly held that the requirement and need expressed by the appellant was not bona fide and on that consideration he refused to grant eviction of the respondent. It is now settled law that a Rent Controller while deciding an application under section 14 of the Ordinance is not competent examine the genuineness of the need of landlord. It may be mentioned here once again that while deciding Ulfat Hameed's case I had not only held that the Rent Controller was not competent to enquire into the genuineness of the need of a landlord before granting the application under section 14 of the Ordinance but it was also pointed out in that case that such enquiry is also not competent even determine the need of landlord under that section. A careful reading of subsection (3) of section 14 of the Ordinance, which provides that where a tenant has failed to deliver possession of the building under subsection (1) the Rent Controller shall on application of the landlord in this behalf order eviction of the tenant from the building with such force as may be necessary, not only fully supports the above conclusion but it also defines the scope of enquiry by the Controller under this section. I, therefore, see no reason to change the view expressed by me, in the case of Ulfat Hameed. I accordingly accept this appeal, set aside the order of Rent Controller and grant the eviction application. There will be no order as to costs.

14. After I dictated the order in court Mr. R.H. Farooqui, stated that his client is presently under detention and, therefore, he may be granted a reasonable time either to prefer an appeal against this order before the Supreme Court or to vacate the premises. This request is not opposed by Mr. Khalid Latif the learned counsel for the appellant, I accordingly grant two months time to the appellant from today to vacate the premises subject to the condition that if after expiry of aforesaid period the appellant failed to produce the stay order from the Supreme Court or vacate the premises as the case shay be, he shall be evicted from the premises with police aid without any further notice.

15. A.A./R‑33/ K Appeal accepted.