1988 PLP 2063 (CLC)

‑‑‑S. 14‑‑Co‑sharer's right to seek eviction‑‑Provisions of S. 14, held, could be invoked for eviction of tenant even by one of co‑sharers dented property if he was eligible to seek such relief, particularly when there was no contest by other co‑sharers. Makhdoom Ali Khan for Appellant. Badrudduja Khan for Respondents. Dates of hearing: 1st, 2nd and 7th April, 1987. This appeal under section 21 of the Sind Rented Premises Ordinance, 1979 (hereinafter referred to as "the Ordinance") is directed against order of eviction, dated 21st April, 1986 passed by learned IInd Senior Civil Judge/ Controller, Karachi (South) in Rent Case No. 1775 of 1985, in respect of a premises No. 64/1, Nishtar Road, Karachi. The respondent Mst. Safia filed the Rent Case No. 1775 of 1985 under section 14 of the Ordinance, on 7‑9‑1985, claiming to be one of the landlords of the aforesaid premises No. 64/1, Nishtar Road, Karachi. She stated that the premises was originally let out to Rahim Bux, who is represented by his legal representatives Mst. Razia Begum, a widow; Ahmad Bux, Muhammad Iqbal and Muhammad Ayaz, brothers. She further stated that the appellant No. 1, Qadri brothers, Foundry and Workshop (Opponent No. 2 in the rent case) were sub‑tenants without consent of the landlords. She averred that she, being a widow, needed the rented premises for her own use. The appellants/ opponents resisted the rent case. They contended that they were tenants of Ebrahim Jee Essa Jee Antria and, after his death, they had not received any statutory notice of change in ownership. The respondent Mst. Safia filed her affidavit in support of the application. She reiterated' that she was one of the landlords of the premises and she, being a widow, needed the premises for her own use. The appellants/ opponents did not lead any evidence but they made an application .for dismissal of the rent case on the ground that Mst. Safia was not one of the landlords as she was not heir of Ebrahim Jee Essa Jee Antria. This application was opposed, by the respondent Mst. Safia. Ultimately, the learned Controller passed the impugned order of eviction, holding that the respondent Mst. Safia was the landlord of the premises and she, being a widow, could seek eviction of the tenants/appellants herein under section 14 of the Ordinance, without establishing her bona fide need. The learned counsel .for the appellants has contended that the respondent Mst: Safia is not the landlady and she could not seek eviction of the appellant from the rented premises. He has agitated that the rented premises originally belonged to Ebrahim Jee Essa Jee Antria, who died somewhere in the year 1970, as stated by the respondent herself, and she claims interest in the property through her husband Fazal Abbas, who had pre‑deceased Ebrahim Jee Essa Jee Antria, having died on 13‑8‑1967, and therefore, she could not claim to be heir of the original owner Ebrahim Jee Essa Jee Antria. He has further contended that even if it were assumed that the respondent Mst. Safia is one of the heirs of Ebrahim Jee Essa Jee Antria, she had become widow before the property could devolve upon her on the death of Ebrahim Jee Essa Jee Antria in 1970 and she could not avail of the provisions of section 14 of the Ordinance. His further contention is that Ebrahim Jee Essa Jee Antria died in 1970 and the eviction case was filed on 7‑9‑1985 and it is a clear case of acquiescence. He has cited following cases in support of his submissions.

1. A.S. Mughul v. Khursheed Azmat Ali P L D 1982 Kar. 406, (2) Rehmatullah v. Ali Muhammad and others 1983 S C M R 1064, (3) Donmnic Pereira v. Hameeda Begum 1983 C L C 317, (4) Mst. Akhtar Sultana v. Syed A. Qayoom 1985 C L C 882, (5) Yousuf and another v. M Zubair and another P L D 1986 S C 164 and (6) Hafiz Abdul Malik v. Muhammad Ilyas 1987 C L C

419. On the other hand, the learned counsel for the respondent has urged that the respondent Mst. Safia had become landlady of the rented premises through her husband Fazal Abbas, a son of the original owner Ebrahim Jee Essa Jee Antria. She has made reference to the Extract from Property Register issued by City Deputy Collector and filed and marked X‑

1. He has further contended that the appellants had acknowledged the respondent as a co‑sharer in the property in another rent case jointly filed by them and the respondent and other L.Rs of Ebrahim Jee Essa Jee and they are estopped from denying subsequently her status as the landlady. He has submitted that, the respondent had not acquiesced in the continuance of the tenancy but the matter was sub judice in Courts and Extract from Property Register was issued in her favour only in the year 1982. He has‑ urged that the respondent fulfills requirements of section 14 of the Ordinance and the learned Controller has rightly passed the order of eviction in her favour. He has cited several cases which are mentioned below: (1) Mst. Khairunissa and 6 others v. Malik M. Ishaque and 2 others P L D 1972 S C 25, (2) Kaleemullah v. Amin Hazi and others 1976 S C M R 77, (3) Malik M. Ishaq v. M/s Eroze Theatre P L D 1977 S C 109, (4) .Muhammad Mujeebur Rehman v. Abdul Bari and 3 others P L D 1981 Kar. 537, (5) Muzaffer Ali v. Toqeer Alam Ashhar and 3 others P L D 1983 Kar. 445, (6) Bashir Ahmed v. Abdul Hameed and another 1983 S C M R 302, (7) Ashfaq v. Mst. Begum Bibi and another 1984 C L C 2587, (8) Raja Saleem v. Habibullah and others ' 1984 C L C 2604, (9) 1984 M L D 130, (10) G hulam Hussain v. Shaukat Ali and another 1985 C L C 1997, (11) Ezhar Ali Arhti v. Muhammad Yaqoob Khan and others 1985 S .C M R 962, (12) Mst. Akhtar Sultana v. Syed Abdul Qayoom 1985 C L C 534 and (13) Yousuf and another v. Muhammad Zubair and another P L D 1986 SC

154. The text of eviction application is so brief that it does not mention the relevant facts constituting the back ground to the filing of the rent case. Consequently, the written statement also is very brief but it does disclose that the tenancy was established by the original owner Ebrahim Jee Essa Jee Antria. It was brought in cross?-examination of the respondent Mst. Safia that the rented premises originally belonged to Ebrahim Jee Antria, who died on 14‑5‑1970. It was further brought in her cross‑examination that her husband Fazal Abbas had died on 13‑8‑1967. It appears that Fazai Abbas was a son of the original owner Ebrahim Jee Essa Jee Antria, as indicated in death certificate in respect of Fazal Abbas marked X‑

4. This is all what stands disclosed in the pleadings of the parties and the evidence brought on record regarding interest of the respondent in the rented premises. However, it is not disputed that the rented premises belonged to Ebrahim Jee Essa Jee Antria and he had let it out to Rahim Bux, who is represented by the appellants Nos. 2 to

5. There is on the record a photostat copy of a Certified Extract from Property Register marked Annexure 'X‑1' showing that the rented premises had devolved on the respondent as a wife of Fazal Abbas, and other five sons of Ebrahim Jee Essa Jee and a daughter of Ebrahim Jee Essa Jee Antria. It is also not disputed that the respondent Mst. Sofia is a widow, her husband Fazal Abbas having predeceased Ebrahim Jee Essa Jee Antria in the year 1967. Of course, change in ownership over the rented premises consequent upon the death of Ebrahim Jee Essa Jee Antria was not notified to the appellants in writing, although that fact seems to have been within the knowledge of the appellants. This fact was brought to their notice in writing when the notice of the eviction application was served upon them. There is on the record a certified copy of an ejectment application in Rent Case' No. 706 of 1967, ,wherein the appellants Razia Begum, Mian Muhammad Ayaz and Mian Muhammad Fayaz had joined hands with the respondent Mst. Sofia and other heirs of Ebrahim Jee Essa Jee in filing eviction case, against M/s. Mercantile Corporation and others. In any case, the appellants had become statutory tenants of the L.Rs. of Ebrahim Jee Essa Jee Antria on his death. This fact was asserted by the respondent in her affidavit‑in‑evidence read as a whole. The appellants did not adduce any evidence to rebut the respondent's claim to be the landlady of the rented premises. They seem to have been ill‑advised not to lead evidence and, instead, an application was made by their Advocate that the eviction application may be dismissed. Mere averments in the pleadings do not constitute evidence unless they are proved by evidence. It was held by the Supreme Court in the case Bashir Ahmed v. Abdul Hameed and another 1983 S C M R 302 that where a party had not entered witness‑box or produced any other evidence in respect of his claim or to rebut the claim of the other party or his case stands adversely affected. It was held in the case Malik Muhammad Ishaque v. M/s Eroze Theatre and others P L D 1977 S C 109 that a written statement by defendant not appearing as a witness at trial could not be treated as substantive evidence. This view was propounded by the Supreme Court also in an earlier case Mst. Khair?un‑Nisa and 6 others v. Malik Muhammad Ishaque and 2 others P L D 1972 S C

25. Since the appellants chose not to adduce evidence to rebut the case put up by the respondent, the respondent's case stands uncontroverted. As regards challenge to the status of the respondent as the landlady of the rented premises, the appellants have not claimed any title over the property. They are admittedly tenants in the property through their predecessor‑in‑interest, namely‑‑Rahim Bux. It is not disputed that tenancy with late Rahim Bux was established by the original owner Ebrahim Jee Essa Jee Antria. After the death of Ebrahim Jee Essa Jee Antria, the property devolved on his legal representatives. The respondent is a widow of Fazal Abbas, one of the sons of, Ebrahim Jee Essa Jee Antria. Of course, Fazal Abbas had predeceased Ebrahim Jee Essa Jee Antria but his widow Mst. Sofia, the respondent, was recognized as one of the heirs of Ebrahim Jee' Essa Jee Antria through her husband. This fact was acknowledged by the appellants in the Rent Case No. 704 of 1967 jointly filed by them and the heirs of Ebrahim Jee Essa Jee Antria including the respondent against M/s. Mercantile Corporation and others. The name of the respondent stood entered in the property register as one of the owners and a certified copy of such extract was placed on the record. For the purpose of subsistence of the tenancy between the parties, this evidence was sufficient for holding that the respondent was one of the landlords of the rented premises. Entries in the City Survey record were considered sufficient evidence in respect of the status of landlord of the premises in the case Ashfaq v. Mst. Begum Bibi and Bego Bibi and another 1984 C L C

257. The cases relied upon by the learned counsel viz. Rehmatullah v. Ali Muhammad and another 1983 S C M R 1064; and Ghulam Hussain v Shaukat Ali and others 1985 C L C 1997 that disputed question of title in respect of rented premises may be determined by the Civil Court and not by the Controller are not attracted as the appellants do not claim title over the property and there is no dispute between the co‑sharers of the property and. the simple question of relationship of tenant and landlord between the parties could conveniently be determined by the learned Controller.. Reference may be made to a case Ehzar Ali v. Muhammad Yaqoob and others 1985 S C M R 962, wherein it was held that the Rent Controller could decide the question of title of the landlord disputed by the tenant on the basis of evidence adduced by the parties. In the instant case, the learned Controller had before, him unrebutted evidence that the respondent was one of the landlords of the property and he could competently decide the question of the status of the respondent as the landlady of the rented premises. The challenge to the competency of the respondent to invoke provisions of section 14 of the Ordinance is based on the ground that she had become widow in the year 1967 before the property devolved on the heirs of late Ebrahim Jee Essa Jee Antria and reliance has been placed on a case Dominic Pereira v. Mst. Hameeda Begum 1983 C L C

317. The respondent had become widow in the year 1967. The property became susceptible to inheritance on the death of Ebrahim Jee Essa Jee Antria in the year 1970. The ejectment case was filed in September 1985. In the case relied upon by the learned counsel, referred to above, it was held that the landlady seeking eviction of the tenant under section 14 of the Ordinance should be widow at the time of the filing of the rent case. This requirement stood fulfilled in the case of the respondent. It was, of course, further held in the same case that a widow purchasing property after becoming widow could not press into service provisions of section 14 and this part of the judgment has been pressed into aid by the learned counsel for the appellants to urge that the respondent could not avail of the provisions of section 14 of the Ordinance. With utmost regard for the view adopted in the aforesaid case, I am of the opinion that section 14 of the Ordinance does not envisage such restriction on invoking provisions of section 14 of the Ordinance. The relevant provision is contained in subsection (1) of section 14 of the Ordinance, which reads as under:‑‑ "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 60 years. within the next six months or has attained the age of 60 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 60 years, or as the case may be, has become widow or orphan." It would appear that persons (landlords) competent to invoke provisions of section 14 of the Ordinance are a widow, or a minor whose both parents are dead, or a salaried employee due to retire within the next six months or having retired, or a person who is due to attain the age of 60 years within the next six months or has attained the age of 60 years. Originally, there was time limit of six months for seeking relief under section 14 of the Ordinance from the day of retirement from service or attaining the age of 60 years or becoming widow or orphan. The time limit was omitted under Sind Rented Premises (Amendment) Ordinance No. XII of 1980 promulgated on 1st September, 1980 and the persons of the aforesaid category can invoke the provisions of section 14 of the Ordinance, without any time limit. It may be visualised that a widow may be owning property before the death of her husband or she becomes owner of property on death of her husband or she may become owner of property later by inheritance from someone else or by way of gift or even by purchase or in some other manner recognized by law. Likewise, a minor whose both parents are dead may be owning property in his name before he becomes orphan or he inherits property on the death of his parents or he acquires title over some property by inheritance from someone else or by way of gift by someone or by purchase etc. Same would be the case with salaried persons having retired from service or having attained the age of 60 years. Of 'course, a salaried employee due to retire within the next six months or any person due to attain the age of 60.years within the next six months would be supposed to be owner‑landlord of the building before giving notice to the tenant as required under section 14 of the Ordinance. Therefore, ~ only that category of the persons who are to retire within next six months or who would attain age of 60 years within the next six months cannot avail of the provisions of section 14 of the Ordinance during that spell of six months unless they are the owners‑landlord of the rented building. In my view, there is no embargo on a widow, a minor who is an orphan, a salaried employee having retired from service or a person having attained the age of 60 years that the building sought to be vacated was his property before or had become his property at the time of the event of his having become widow, or as case may be, having become orphan by losing both the parents, or had retired from service or had attained the age of 60 years. Section 14 of the Ordinance envisages relief in a summary manner getting rented building vacated in favour of a widow, or minor having lost both the parents, or a salaried employee having retired from service or due to retire from service within next six months or a person who has attained the age of 60 years or who has to retire within the next six months on humanitarian consideration as to meet peculiar circumstances in life they may be confronted with to find asylum in their own property and there is no embargo that the property should have been owned by them before they were put in those circumstances, and the law has left the field open for them to invoke provisions of section 14 of the Ordinance at any time whether the property was owned by them before or they became owners thereof subsequently. The plea of acquiescence in continuance of the tenancy by the respondent also is not tenable. The relief of the nature envisaged under section 14 of the Ordinance became available to the landlords of the category mentioned therein for the first time on 14th November, 1979 when the Ordinance was promulgated. At that time, the respondent could not avail of the provisions of section 14 of the Ordinance as there was time limit of six months from the event of becoming widow or as the case may be, an orphan etc. This time limit was removed by the Sind Rented Premises (Amendment) Ordinance (XII of 1980) promulgated on let September, 1980. The rent case was filed in the year 1985. The entry in the property register in favour of the respondent was made somewhere in the year 1982. Obviously, there was no question of such laches on the part of the respondent as to cause extinction of her right of seeking eviction, by way of acquiescence in continuance of tenancy. In the case Hafiz Abdul Malik v. Muhammad Ilyas 1987 C L C 419, relied upon by the learned counsel for the appellant, 15 years delay in filing application under section 14 of the Ordinance was considered as one of 'the grounds for refusing relief under section 14 of the Ordinance. In the instant case, eviction application was filed within few years of the relief envisaged under section 14 of the Ordinance was provided and the case relied upon does not advance the case of appellant as to deny to the respondent the benefit of section 14 of the Ordinance. Lastly, it was agitated by the learned counsel that the respondent was not the sole owner/landlord of the building and she could not avail of the provisions of section 14 of the Ordinance. Of course, the respondent is not the sole owner/landlord of the property but there does not seem bar to the invoking of the provisions of section 14 of the Ordinance by one of the co‑sharers eligible to seek relief therein, particularly in the circumstances when there is no contest by the co‑sharers. The facts in the "case are almost similar to those of the case Bashir Ahmed v. Abdul Hameed and another reported in 1983 S C M R 302 wherein objection of similar nature to the maintainability of the eviction application filed by one of 11 co‑sharers could not be sustained before the Supreme Court. If such objection were to prevail, a widow or an orphan minor cannot derive relief envisaged under section 14 of the Ordinance as normally there would be‑ co‑sharers with them in the property inherited by them; and even the class of other owner‑landlords given benefit under section 14 of the Ordinance would stand deprived of the relief if there are co‑sharers in the property. As discussed above, none of the grounds advanced by the learned counsel for the appellant is sustainable. Accordingly, the appeal is dismissed. The impugned order of the learned Controller, dated 21st April, 1986 is maintained. The appellant shall handover vacant possession of the rented premises to the respondent within two months. The respondent is awarded costs of the appeal. H.B.T./Q‑8/K????????????????????????????????????????????????????????????? ??????????? Appeal dismissed.