MUHAMMAD ALI Versus HAMEEDA BEGUM

SAAD SAOOD JAN, J. ‑‑This is an appeal by special leave, from the order, dated 22‑5‑1983 of the Sind High Court, Karachi, dismissing the appeal of the appellant from the order, dated 19‑8‑1981 of the Rent Controller, Karachi, directing his ejectment from a house situate in Muslimabad, Karachi.

2. Pir Muhammad Nawaz, husband of the respondent, was the owner of the house in question. He gave it on rent to the appellant. He died on 17‑6‑1980 and was survived by the respondent, three sons and a daughter. On 11‑10‑1980 the respondent sent a notice through counsel to the appellant under section 18, Sind Rented Premises Ordinance, 1979, informing him about the death of her husband and asking him to pay the arrears as sell as the future rent to her as all the other heirs had authorised her inter alia to receive the rent of the premises. On 12‑10‑1980 she had another notice sent to the appellant asking him to vacate the premises within two months as she had decided to shift from her native village and take permanent residence in Karachi. The appellant did not vacate the premises as desired by the respondent; consequently, she filed an application under section 14, Sind Rented Premises Ordinance before the Rent Controller. The application was resisted by the appellant whereupon the Rent Controller framed an issue to the effect whether the respondent was entitled to avail of the benefit under section 14 of the Sind Rented Premises Ordinance, 1979. After considering the evidence adduced by the parties, he decided the issue in the affirmative and directed the ejectment of the appellant. From the order of the Rent Controller the appellant preferred an appeal before the High Court which was dismissed.

3. The order of ejectment passed against the appellant is based upon section 14(1), Sind Rented Premises Ordinance which reads as follows: ‑‑

"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 "

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 beer, 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 sole heir of the original landlord. Such a narrow construction would leave out from the benefit of the provision in question a 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. There is also no merit in the contention that an application made by a widow under section 14(1) would be in derogation of the rights of the other heirs in the property. The proceedings before the Rent Controller here are intended merely to determine the liability of a tenant to ejectment under a special provision and it is difficult to see how an order made in these proceedings will have any bearing on the rights of the other heirs in the property. It may also be mentioned that the expression "landlord" has been used in the Ordinance in a wider sense for it includes a person who behalf. Under section 27 of the 1979 Ordinance only those appeals'" and cases filed under the 1959 Ordinance pending before a Rent Controller which had reached the stage for arguments or where only judgment was to be written, were to be disposed of in accordance with the 1959 Ordinance notwithstanding the repeal thereof. But all other cases instituted under the 1959 Ordinance which immediately before the commencement of the 1979 Ordinance were pending before a Rent Controller were to continue and were to be disposed of in accordance with the provisions of the 1979 Ordinance. The legal position in the present case was that the 1959 Ordinance was repealed and replaced by the 1979 Ordinance while the present case although instituted under the 1959 Ordinance was pending before the Rent Controller only at the recording of evidence stage (in other words it had not reached the stage for arguments or judgment), therefore, it was to continue and to be disposed of in accordance with the provisions of the 1979 Ordinance and that the 1959 Ordinance was not applicable. Where the High Court had decided the appeal in the case only for the reason that the case was governed by the provisions of section 13(5) and (5‑A) read with section 19 of the 1959 Ordinance which were not applicable to the case and did not deem it necessary to go into the questions of fact involved in the case, the impugned judgment was liable to be set aside on this ground.

The instant case, in the light of section 27(3) of the 1979 Ordinance, was governed by the provisions of section 15(3) of the said Ordinance and therefore the application of the tenant for the purpose of being put into possession of the demised premises before the Rent Controller for an order in that behalf was quite proper. Section 15(3) clearly lays down that in case the landlord fails to demolish the building within six months of the taking over of possession of the premises or does not commence the reconstruction of the building or erection of a new building within two years, the tenant shall be entitled to be put into possession of the premises. The word "premises" is defined in section 2(h) of the 1979 Ordinance as "a building or 'land let out on rent''.

Landlord had obtained possession of the disputed premises 'on the basis of a compromise between himself and the tenant and the Rent Controller had passed a consent order in accordance with the terms of that compromise and the question may arise as to whether the restoration of possession of the disputed shop to the tenant is to be made in accordance with the terms of the said compromise. Then again factually the question is to be examined that if the existing shop had been demolished by the landlord but neither it had been reconstructed nor a new building had been erected then how the possession to the appellant is to be restored when under section 15(3) of the 1979 Ordinance such restoration can only be made if the landlord had failed to demolish the building. In the present case the building according to one side is partly demolished and according to the other it is completely demolished. Under section 15(3) the tenant is entitled to be put into possession of the premises in case the landlord fails to demolish the building as foresaid but it does not cater for a situation where the premises have neither been reconstructed nor a new building erected. The tenant claimed that the premises still exist in the original form and the roof only has need not be the owner of the premises at all; all that is required is that he should be authorised or entitled to receive rent in respect of the rented premises. In this case all the other heirs of Pir Muhammad Nawaz had authorised the respondent not only to collect the rent of the house in dispute but also to deal with it in all respects including to get the same vacated and use it for her own occupation.

5. For the reasons stated above we find no merits in this appeal which is hereby dismissed with costs.

M. B.A./M‑344/S ??????????????????????????????????????????????????????????????????? Appeal dismissed