KULSOOMBAI Versus SHIRINBAI
ORDER
1. The respondent filed application of ejectment under section 14 of the Sind Rented Premises Ordinance, 1979 which has been allowed by the impugned order. It is an admitted position that the respondent is residing abroad and is a widow. The disputed house was rented out in the year 1977 and she became widow in December, 1980. Mr. Ali Amjad the learned counsel contends that from 1980 till 1987 the respondent had been raising rent from time to time and therefore, there was a novation of contract between the parties which amounted to a fresh contract of tenancy after the respondent had become a widow, and consequently, section 14 will not apply. The learned counsel has referred to 1982 C L C 1895. Novation of a contract A means substitution of .a new contract for an existing contract the consideration mutually being discharge of the old contract . In Mohammad Amin v. Star Oil & Ice Mills Ltd. P L D 1973 Kar. 409 under a contract the defendants agreed to supply. Cotton to the plaintiff in terms thereof. Subsequently by an amendment the place of delivery was changed. The contention that such amendment amounted to novation of contract was repelled and it was observed:
6. As regards the plea of novation of contract, 1 am unable to agree with Mr. Ramchandani that the letter dated 11‑12‑1968, Annexure B to the counter‑affidavit of the defendants, amounts to novation of the contract. This letter, at the most, can be treated as making amendments in the contracts between the parties. Under section 62 of the Contract Act novation takes place when an entirely new contract is substituted for a previous contract. In the present case I am unable to find ‑that there was a new contract for the previously existing three contracts between the parties. What happened was that there were certain amendments with regard to the place of delivery of the contracted cotton. But this kind of amendment would not result in any substitution of the new contract for the previous three contracts. The basic contract remained in existence, which was to the effect that the defendants would supply 4000 bales of cotton to the plaintiffs and that the selection of cotton shall be made by the plaintiffs at the defendants cotton ginning factory. Accordingly, it cannot be said that any novation in terms of section 62 of the Contract Act resulted by reason of the amendment made to the contracts in the letter dated 11‑12‑1968 .
2. Reference can also be made to Murid Husain v. Bukhsh Illahi P L D 1975 Lah. 1484. It may further be noted that before a novation is established it must be proved that the intention of the parties was to substitute a new contract for the original contract. Reference can be made to Noor Ahmed v. Muhammad Shafi P L D 1959 BJ 17.
3. In the present case the parties had agreed to change the rate of rent but the premises and all other terms and conditions have remained the same. Applying the above principle, in my opinion mere change of rate of rent will not amount to novation of contract.
4. The case of Dr. Miss I. Ali Mohammad (1982 C L C 1895) relied upon by the learned counsel for the appellant is completely distinguishable on facts. A perusal of this judgment will show that in the facts and circumstances of that case it was held that on expiry of tenancy agreement a new: agreement of tenancy was substituted.
5. The next contention of the learned counsel for the appellant is that although no period of limitation for filing ejectment case after becoming widow has been provided under law, it should be filed within a reasonable time, and if there is unreasonable delay, then the widow waives her right to apply under section 14 of the Sind Rented Premises Ordinance. The learned counsel has referred to PLD 1982 Kar. 188 and 1982 C L C 44 to substantiate the proposition that the right of the landlord can be waived by inaction or delay. Section 14 confers a special right to a widow and such handicapped persons who are included in it and in order to provide facility to them a summary procedure of ejectment has been provided. There is no limitation provided under law for filing application for ejectment D under section 14. In the present case the respondent has been residing abroad and now she wants to come and settle down in Pakistan. The respondent s claim for seeking ejectment cannot be challenged on the ground that her claim is not bona fide. Therefore, in my view merely because of the delay the widow cannot be said to have waived ‑her right in invoicing section 14 of Sind Rented Premises Ordinance, 1979.
6. The third contention of the learned counsel is that she was the owner and in possession of another house No.398 Britto Road, Soldier Bazar, Karachi at the time of filing the ejectment application, and therefore, she was not entitled to file application under section 14 of the Sind Rented Premises Ordinance. According to the learned counsel the house was inherited by her and was sold away. Mr. Ali Amjad has pointed out that it was sold after the ejectment application had been filed. On these undisputed facts the question is whether bar under section 14 would apply. Section 14 (2) provides that the landlord shall not be entitled to avail the benefit of subsection (1) to section 14, if he is in occupation of a building owned by him in any locality. Therefore, it is necessary that the landlord should not only own a building but he should be in occupation thereof. Occupation is always a physical occupation through himself or through attorney or agent. Merely because a house is owned by a landlord does not mean that he occupies it. In the present case there is no evidence that the respondent was in occupation of the said house. Therefore, she cannot be deprived of the benefit of section 14 of the Sind Rented Premises Ordinance.
7. I do not find any reason to interfere with the order of the learned Controller and dismiss this appeal in limine.
8. H.B.T/S‑271/K Appeal dismissed