1986 PLP 1342 (MLD)

Akbar Ali for Respondent No.3. Maimoona A.Q. Kapadia (absent) for Respondent No.1. Iqbal Ahmad for Respondent No.

2. Date of hearing: 13th May 1986. This first rent appeal under section 21 of the Sind Rented Premises Ordinance, 1979, has been filed by, the appellant /tenant challenging the order, dated 14‑11‑1983 passed by the Rent Controller, Karachi, allowing the ejectmant application and ordering ejectment of the appellant from the premises in question, which is a residential bungalow on Plot No. 329, Garden East, Britto Road, Karachi. It may be observed here that initially the ejectment application had been filed by Mst. Shakar Khano Bai, mother of the respondents. The ejectment application had been filed in 1975. Mst. Shakar Khano Bai died on 12‑8‑1977, leaving behind her three legal heirs, who are the respondents. Her husband, according to Mr. Iqbal Ahmed, had died prior to her death. This statement has been made by the learned counsel on the instructions of respondent No.2, who is present in Court. After the death of the landlady on 12‑8‑1977, respondent No.2 only filed an application under Order XXII, rule 3, C.P.C. (page 81 of the R 4 P) giving the names of the three respondents and praying that the, three respondents may be brought on record as applicants in place of deceased Mst. Shakar Khano Bai. This application was granted by order, dated 27‑5‑1978. Evidence was recorded by the Rent Controller, which included the evidence of the respondent No. 2 and the appellant. As observed earlier, by the impugned order, dated 14‑11‑1983, ejectment of the appellant has been ordered on the ground of personal requirements of the landlord. I have heard Mr. Abul Inam, learned counsel for the appellant and Mr. Iqbal Ahmad, learned counsel for respondent No.2. Respondents Nos. 1 and 3 have remained absent.

2. Prior to the filing of the ejectment case by the deceased landlady a legal notice had been given to the appellant, in which she had stated that she required the premises for her own use. However, when the ejectment application was filed it was averred that the landlady and her husband required the house for their personal use. Paragraphs 4 and 5 of the ejectment application are reproduced here-in-below:‑ "

4. That after receiving a legal notice from her landlord, the applicant sent a legal notice to the opponent to vacate demised premises as the landlady needs it for her personal use, but the opponent vide letter from his lawyer, dated 30‑8‑1975 refused to vacate the house. A copy of notice and its reply are attached herewith and marked 'B' and 'C' respectively.

5. That the applicant and her husband are of very old age and require the house for their personal use. They have no other property in Karachi or Pakistan." From the legal notice, dated 8‑7‑1975 of the deceased landlady and the memo. of the ejectment application filed by her, it appears that the premises were required by the deceased landlady for herself and for the use of her deceased husband. Thereafter, as observed earlier, on the death of the landlady an application, dated 12‑8‑1977 was filed by respondent No.2 for joinder of the three respondents as applicants in the ejectment application and this application was granted on 27‑5‑1978 by the Rent Controller. Learned counsel for the appellant has pointed out that in this application the respondent No.2 had given his address as Mercantile Co‑operative Bank Building, M.A. Jinnah Road, Karachi. Admittedly respondent No.1 resides in U.S.A. and respondent No.3 resides with her husband in a separate house. After the application under Order XXII, rule 3, C.P.C. had been granted, an amended application for ejectment was filed which was signed by the respondent No. 2 as the applicant. In this amended application no change has been made from the previous ejectment application filed by the deceased landlady. Nothing is mentioned that the premises are required by respondent No.

2. The same paragraphs have been repeated relating to the requirement of the deceased landlady and her deceased husband.

3. It was argued by Mr. Abul Inam that in the circumstances the ejectment application, which was in effect, even after its amendment, an application filed by the deceased landlady for her use and for the use of her deceased husband, could not be granted, as both of them had died. Reliance has been placed upon a recent judgment of the ` Supreme Court in the case of Muhammad Shafi v. Muhammad Ilyas 1986 SCMR

451. Reference was also made to an earlier judgment of the Supreme Court referred to in this judgment reported in 1986 S C. M R 451 and that judgment is in the case of Muhammad Aslam v. Wazir Muhammad P L D 1985 S C

46. Mr. Iqbal Ahmad, learned counsel for the respondent No.2, also relied upon the same two judgments, which have been relied upon by the learned counsel for the appellant and the contention' on behalf of the respondent is that the need of the applicant landlady included the need of the children and as the respondent No.2 was residing with his mother, the deceased landlady, he could continue the ejectment application and prosecute the same for his own personal need. Learned counsel for respondent No.2 is correct in the sense that under the law respondent No.2, in the circumstances, could continue with the ejectment application and prosecute the same but as has been noticed earlier, after the death of the landlady, he should have filed an amended application, in which he should have taken the plea that as son of the previous landlady and now, as the owner and not in possession of any property belonging to him, he was entitled to have an order of ejectment passed against the appellant. But this was no done by the respondent No.2 and as noticed earlier, the previous ejectment application was not amended and the same ejectment application was filed as an amended application, in which the requirement remains' the requirement of the deceased landlady and her deceased husband. I In the circumstances, no ejectment order could be passed in this case, on the request of respondent No.2.

4. As a result, First Rent Appeal No. 991 of 1983 is allowed and the ejectment order dated 14‑11‑1983 of the Rent Controller is se aside. There will be no order as to costs.

5. It may be observed here that this order does not debar the respondent No.2 from filing fresh application for ejectment on the ground of personal requirement and/or ‑on any other ground and such application will, of course, be decided by the concerned Rent Controller on merits in accordance with law. The respondent No.2 through Mr. Iqbal Ahmad had made a request that a direction may be given that is case a fresh ejectment application is filed it will be disposed of at very early date. It is not necessary to make any observation to that effect. In view of the latest direction issued by the Honourable Chie Justice of the Sind High Court, all ejectment cases filed under the Rent Restrictions Ordinance have been directed to be disposed of within six months from the institution of the ejectment application and in case a fresh ejectment application is filed, the concerned Rent Controller will keep in mind such directions and will also keep in mind the fact that present ejectment application had been filed in 1975. A.A. Appeal allowed.