1999 PLP 1399 (CLC)

During the course of the proceedings, yet by another order, dated 4‑2‑1992, the case was again remanded to the Rent Controller to record additional evidence of the parties to ascertain the date on which the appellants had let out another shop in the same building to Messrs Hafiz Glass Works. The contention of the learned counsel for the appellants is that the notice was duly served on the respondent on 9‑9‑1981 in regard to the change of ownership of the property and the names of all the legal heirs were also intimated in the said notice. The next contention is that although the deeds of surrender were executed in favour of the appellant No. l herein, but the said appellant had power to confer any of the rights in regard to the said property in favour of any other person muchless on her own sons and daughter. On the other hand, the learned counsel for the respondent argued that after the execution of the deed of surrender it was mala fide on the part of the appellants to apply for the mutation of the property in the names of all the other legal heirs without disclosing that they had already surrendered their rights in her favour. His next contention was that the application on behalf of the present appellant No.3 was filed much after his retirement and, as such, it was belated and also mala fide as the appellant No.l had already filed an application under section 15 of the Sindh Rented Premises Ordinance on the ground of default, personal bona fide use and change of in the nature of the use of the property which resulted in a compromise and enhancement of rent. After hearing the learned counsel for the parties and going through the various orders, the issues to be decided by the learned Rent Controller were as under:‑‑ (1) Whether the opponent is tenant of the applicant in respect of the case premises? (2) Whether the applicants need the premises, particularly applicant No.3, for personal bona fide use? (3) Whether the applicants Nos.2, 3 and 4 surrendered their rights in 1975 and, if so, what is its effect? (4) As to when the appellant had let out another shop in the same building to Hafiz Glass Works? (5) What should the order be? The entire evidence led by the parties clearly establish that Din Muhammad, the respondent herein, is the tenant of the appellants, the legal heirs of late Niamatullah, as notices were duly served on the tenant after the death of the original owner and the particulars of the legal heirs were also given therein. There is no doubt that the notice, dated 9‑9‑1981 was served by Mst. Husna Begum as the owner of the disputed property as at the relevant time, considering the surrender deed executed by all the other legal heirs, she was the exclusive owner of the case premises. However, in 1982, she decided to apply to the relevant authorities to include the names of the other legal heirs as owners of the case premises which was accepted and decided by an order, dated 20‑3‑1982 and consequently, a notice, dated 23‑5‑1983 was served on the tenant stating therein that the disputed premises were needed by the, appellant No.3 for his personal bona fide use. It is evident from the evidence recorded by the Rent Controller that the appellant No.3 did retire from service in 1981 and subsequently, he shifted from Sukkur to Karachi for permanent settlement Admittedly, the sons and daughter of the appellant No.l has executed surrender deed in favour of their mother in 1981. But there is no law which precludes an owner of the property to give confer or transfer certain rights of joint ownership to one or any of the legal heirs or on any other person whom he/she considers entitled to during his/her life time and it can safely be said that the appellant No. 1, the exclusive owner at the relevant time, by including the other legal heirs as joint owners had not committed any illegality or has deprived any other interested person from inheriting a share in the property which could have been against any law or law of Islamic Inheritance. The counsel for the respondent failed to refer to any law which bars such action of the appellants. If object of the appellants was only to avail the benefit of section 14 of Sindh Rented Premises Ordinance, the appellant No.l being the widow of the original owner, could have also availed the said benefit under the said provisions. The rent case filed earlier, as referred to by the counsel for the respondent, was actually filed by Niamatullah himself, being Rent Case No.777 of 1968, which was compromised on 5‑4‑1968. The main question before the Court in such case should be whether the premises are genuinely needed by the owners for their personal bona fide use. In the instant case the evidence led by the parties clearly indicates that not only the appellant No.3,needs the premises to start his business but even the appellant No.1, who according to the evidence was occupying part of the said shop for sometime, needed the same for her personal bona fide use. The plaint filed in Civil Case No.787 of 1988 and the annexures filed therewith by Abdul Hafiz, who was the tenant of the other shop, clearly indicates that the shop was given to Hafiz Glass Works in 1975, much before the retirement of the appellant No.3. In regard to the objection of the respondent that the appellants had already filed an application under section 15 of the Sindh Rented Premises Ordinance and hence cannot file another application under section 14 thereof for the personal bona fide use of her son, the learned counsel for the appellant referred to the case of Mujtaba Hussain Abidi v. Ferozuddin Zakai PLD 1985 Kar. 663 wherein the judgments passed in the case of Abdul Ghani Dhanwala v. Ahmed Ilmuddin Amir PLD 1982 Kar. 935 and the case of Wahid Shah v. Haider Mirza PLD 1983 Kar. 628 were referred to and the judgments passed therein were upheld wherein the Court took the view that filing of application under section 15 of the Sindh Rented Premises Ordinance or pendency thereof is no bar on the right of a landlord to file application under section 14 of the Sindh Rented Premises Ordinance. The learned counsel further referred to the case of Abu Bakar v. Abdul Haleem PLD 1991 SC 302 wherein it was held that provision of section 14 of Sindh Rented Premises Ordinance indicates that the said provision overrides the other provisions of the Ordinance and any other law for the time being in force. It further, indicates that a right has been conferred on a landlord of a building who is a widow or a minor whose both parents are dead or a salaried employee due to retire within 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, to inform the tenant by a notice in writing that he or she needs the building for personal sue and may 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. Subsection (1) of the said provision, no doubt, takes away this right in certain conditions, but the same are not applicable in the present case. There are various judgments of the superior Courts that the Rent Controller cannot investigate into the question of bona fide and genuineness of requirement of landlord in proceedings under section 14 of the Sindh Rented Premises Ordinance. The scope of inquiry under such cases would be limited to determination of fact whether the landlady was a widow or the circumstances which have been enumerated in section 14, Sindh Rented Premises Ordinance which will include the need of appellant No.3 as he had admittedly retired from service. It is not the case of the respondent that the appellant No.3 was not a co?owner or that he had not retired from the Government service. Under the circumstances as given hereinabove, I allow this appeal and set aside the judgment, dated 17‑10‑1987 passed by the learned Rent Controller South, Karachi in Rent Case No.4470 of 1982. However, since the respondent is running business in the disputed premises, he is allowed three months time to vacate the disputed premises and hand over peaceful vacant possession of the same to the appellants on the expiry of the three months' period. H.B.T./H‑85/K ?????????????????????????????????????????????????????????????????????? Appeal allowed.