AKHTAR SULTANA Versus ABDUL QAYYUM

This appeal arises from the order of the learned IVth Senior Civil Judge/A.S.J. and Rent Controller, Karachi (East), dated 14‑2‑1986 whereby he has dismissed the application of the appellant made under section 14 of the Sind Rented Premises Ordinance, 1979 (for short 'the Ordinance'). The operative part of the learned trial Court's order reads as under:‑

"In the above circumstances of the case it is evident that the applicant was in possession of a tenement on the ground floor after the death of her husband in the year 1973 and by letting out the same to National Bank of Pakistan, she lost her right conferred by section 14 of Sind Rented Premises Ordinance, 1979 therefore, she cannot avail the benefit of section 14 of Sind Rented Premises Ordinance, 1979. Hence the application under section 14 of the Sind Rented Premises Ordinance, 1979 is not maintainable in law. The issues are answered accordingly."

2. The relevant facts giving rise to this appeal, briefly stated, are these. The appellant filed an application under section 14 of the Ordinance for eviction of the respondent on the ground that she was a widow and needed the demised premises viz. ground floor on commercial premises bearing No.l/1169, Drigh Colony, Karachi. Her husband died on 14‑3‑1973. The application under section 14 was made on 26‑11‑1981. Prior to the filing of the application the statutory notice was admittedly duly served upon the respondent. The respondent filed written statement alleging that the application was mala fide inasmuch as the landlady wanted to enhance the rent. The parties led their evidence. The appellant filed her affidavit‑in evidence, whereas the respondent besides his own affidavit‑in‑evidence also filed the affidavit in evidence of two witnesses, namely, Abdul Khaliq and Syed Mohiuddin. The learned Rent Controller vide his order, dated 26‑5‑1982 dismissed the application. Aggrieved by the said order the appellant filed F . R . A . No. 802/ 82 in this Court which was allowed on 28‑8‑1985 and the case was remanded to the trial Court for decision on merits with permission to the parties to add to the evidence already recorded on the issue whether the premises in question were really required by the landlady for her own use and her children.

3. Upon remand of the case the appellant filed her own affidavit- in‑evidence and so also did the respondent too. The respondent also filed additional evidence in the form of further affidavit of Syed Mohiuddin. The learned Rent Controller again vide his impugned order, dated 14‑2‑1986 dismissed the application as stated above. Hence this appeal.

4. I have heard the learned counsel for the parties. The short but important point involved in this appeal is as to whether having let out the demised premises in the year 1974, namely, after about one year of the death of her husband, the appellant was legally entitled to make an application under section 14 of the Ordinance which reads as under:‑

"Delivery of vacant possession"

14.‑‑ (1) Notwithstanding anything contained 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 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.

(2) The landlord shall not be entitled to avail the benefit of subsection (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 building 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."

The contention of the learned counsel for the appellant is that prior to the promulgation of the Ordinance in the year 1979 the appellant had no right to file an application for eviction of the respondent under section 14 of the Ordinance. The letting out of the premises subsequent to the promulgation of the Ordinance and upon the happening of any of the events enumerated in section 14 thereof, could debar the applicant from filing the application but the mere fact that she had let out the premises much earlier than promulgation of the Ordinance in question did not in law disentitle her to file the application. The counsel, therefore, emphasised that the letting out of the premises in the year 1974 did not debar the appellant from availing the benefit of section 14 of the Ordinance. In support of his contention the learned counsel placed reliance on a decision of the Supreme Court in the case of Fakir Mohammad v. Mst. Halima Bai 1986 C L C 2013.

5. The learned counsel for the respondent, on the other hand, supported the impugned order. He raised three‑fold contentions before me. Firstly, that the appellant having let out the premises after the death of her husband was not legally entitled to claim the benefit of section 14 of the Ordinance. Secondly, that the appellant failed to examine her sons for whom the premises in question was allegedly required. And lastly, that there were contradictions in the statement of the appellant inasmuch as in the original affidavit‑in‑evidence filed by her she had deposed that some other premises of the property in question had been let out after the death of the deceased to a bank, whereas during her cross‑examination she made a different statement and denied the fact of having let out the premises after the death of her husband.

6. I have given due consideration to the submissions made by the learned counsel for the parties. There could be no denying the fact that the right to a widow/lady for making an application under section 14 of the Ordinance became available only upon coming into force of the Ordinance on 21‑11‑1979. Now, therefore, the only question that falls for determination is whether the act of her having let out the premises after the death of her husband in the year 1973 can be held to have debarred her from availing the benefit of section 14 of the Ordinance. A bare reading of the above provision of law reproduced above clearly indicates that a person belonging to the class of persons enumerated in section 14 (1) becomes disentitled to avail the benefit extended to him under section 14(1) if he rents out the building after the happening of the given events namely, the retirement, attaining the age of 60 years or becoming a widow or orphan, as the case may be. The right to make an application under section 14 has been inter alia, extended to a widow. It was, therefore, in exercise of this provision that she became entitled to present application notwithstanding the fact that she became widow in the year 1973. This is what has been held by a learned single Judge of this Court in the case of Fakir Mohammad v. Mst. Halima Bai 1986 C L C 2013 which reads as under:‑

"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 are '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 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 take 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."

While making the above observations the learned single Judge has placed reliance upon an unreported decision of another learned single Judge of this Court in F.R.A. 5/81, Mumtazuddin Ahmed v. Mrs. Sultan Jehan Begum as well as upon the observations of the Hon'ble Supreme Court in Civil Petition for Special Leave to Appeal No. 34/84. The relevant extract therefrom runs as under:‑

"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;

'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.

The arguments overlook the facts that the respondent landlady has the 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."

7. In view of the law enunciated by the Hon'ble Supreme Court in the above‑referred case there remains no ambiguity in holding that notwithstanding the appellant's having let out the premises in the year 1974, namely, after the death of her husband she still was legally entitled to invoke the provisions of section 14 of the Ordinance. The Supreme Court has in unambiguous terms observed that to accept such an argument would mean to give retrospective effect to the Ordinance, which is not the intention of the legislature.

8. So far as the other two contentions raised by the learned counsel for the respondents are concerned, I do not feel called upon to deal with them as the learned trial Court has not dismissed the application on the grounds sought to be urged by the learned counsel for the respondent. The only ground as already stated on which the learned trial Court had non‑suited the appellant was that she had let out the premises after the death of her husband and before the promulgation of the Ordinance. I have dealt with this aspect of the case in the light of the authorities cited above and hence no further discussion on the‑ new points is necessarily required to be made by me now.

9. In the result the appeal succeeds, the impugned order is set aside and the respondent is directed to hand over the possession of the demised premises to the appellant within three months from the date hereof. The respondent shall, however, be liable to pay the monthly rent regularly to the Appellant either against receipts or by depositing the same in the lower court. Failing to do so would render him liable to be evicted from the demised premises forthwith without further notice.

A.A./A‑256/K Appeal accepted.