1992 PLP 1102 (MLD)

This first rent appeal is directed against the order, dated 11‑2‑1988 passed by the 1st Senior Civil Judge and Rent Controller, Karachi South, whereby he granted the eviction application filed by the respondents and directed the appellant to hand over vacant possession of the premises in question to the respondents within a period of 0() days from the date of the order. The facts leading to the riling of the above appeal are that late Muhammad Saeed father and predecessor‑in‑interest of the appellant was the recorded tenant of the Custodian, Evacuee Properties in respect of the residential premises bearing No.G‑3, on building on Plot No.SR‑9/127, Bellasis Street, Scrai Quarters, Karachi. Late Mukhtar Ahmed, predecessor‑in- interest of the respondents acquired the above premises by means of permanent transfer decd dated 19‑3‑1962 issued by the Deputy Settlement Commissioner, Karachi. There was protracted litigation between late Mukhtar Ahmed and late Muhammad Saeed which was continued by their legal heirs and elided in favour of the legal heirs of late Muhammad Saeed. The respondents filed eviction application under section 14 of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as `the Ordinance'). The case of the respondents, as set out in the eviction application, is that the respondent No.1 was a permanent employee in the Defence Department and he was ordered to proceed on L.P.R. with effect from 5‑6‑1985 to 4‑6‑1986 for a period of one year ending on 4‑6‑1986. On receipt of the said order, the respondent No.1 sent a notice under section 14 of the Ordinance requiring the appellant (legal heir, of deceased Muhammad Saeed) to vacate the premises in question as the same was required by the respondent No.1 to establish his own business. The case of the respondents was that the appellant has been in possession of the premises in question where he has been doing the business under the name and style of Messrs National Crescent Industries. It was the further case of the respondents that the premises in question is being used as a commercial building by the appellant alone and the Excise and Taxation Department has fixed the GARV of the premises in question at Rs.l,2(X) i.e. treating the monthly rent at Rs.l00 while the monthly rent of the premises in question is being deposited by the appellant at the rate of Rs.50. The respondents after expiry of the notice period, riled rent case No.2228 of 1985 before the 1st Rent Controller, Karachi South wherein the appellant riled objections with regard to the maintainability of the case alleging that the notice as well as the case under section 14 of the Ordinance was premature. The respondents withdrew the said case with permission to file a fresh one to avoid future complications in the matter which application was allowed and the respondents were allowed to withdraw the said case with permission to file fresh one on payment of cost of Rs.200. The respondents deposited the costs as directed in the earlier proceedings. The respondents sent fresh notice as required under section 14 of the Ordinance to the appellant and the stipulated period of two months expired. The appellant neither vacated the premises nor cared to reply the same. In these circumstances, the respondents filed the above eviction application. The plea of the respondents, as set out in the application, is that the respondent No.1 intends to establish his own business of sale and repair of sewing machines in the premises in question and the respondent No.1 has got no other premises al his disposal to establish his own business. The appellant contested the eviction application on various grounds. The appellant pleaded in his written statement that Mst. Hussan Ara is an Indian National, as such the eviction application on her behalf as respondent No.2, is not maintainable in law. The appellant also pleaded that respondent No.3 does not seem to have signed the power of attorney. The respondent No.1 is not duly authorized to file the rent case in question on behalf of respondents 2 to

7. The appellant pleaded that the respondent No.1 is already in occupation as an owner of House No.B‑E‑8/13, Nazimabad, Karachi and thus he is not entitled to claim the eviction of the appellant and other legal heirs of late Muhammad Saeed under the provisions of section 14 of the Ordinance. The respondent No.1 filed his own affidavit‑in‑evidence in support of the eviction application. The respondents also examined Sanaullah, Inspector, Excise and Taxation Department, Karachi and Muhammad Nazim, Inspector, Telephone Revenue, Karachi Central and Ghulam Hussain, Senior Clerk, Directorate of Industries, Karachi and closed their side. The appellant filed his own affidavit‑in‑evidence in rebuttal. The learned Controller, on assessment of the evidence (oral and documentary) led by the parties, allowed the eviction application. The learned Controller came to the conclusion that only the appellant is in possession of the premises in question, therefore, the respondents have rightly filed a case against the appellant. On point No.2, he came to the conclusion that the respondent No.1 retired from Government service and the premises in question is of commercial nature and since respondent No.1 retired from the Government service therefore, he is entitled for possession of the premises for his personal use under section 14 of the Ordinance. In this view of the matter, the eviction application was allowed and the appellant was directed to hand over the premises in question within two months from the date of the order. Hence the present appeal. Mr. Khalilur Rehman raised the following contentions:‑‑ (1) The eviction application is hit by section 14(2) of the Ordinance. (2) Respondent No.1 was not authorized to file eviction application on behalf of the respondents Nos.2 to 7 as he has no authority to file the eviction application. Mr. Muhammad Ali Jan, on the other hand, supported the impugned order I have heard Mr. Khalilur Rehman, learned counsel for the appellant in support of the appeal and Mr. Muhammad Ali Jan, learned counsel appearing for the respondents. With regard to point No.1, it may be observed that the premises in question is G‑3 of the building on Plot No.1P‑9/127, Bellasis Street, Serai Quarters, Karachi. The premises in question is a residential premises but is being used as commercial one by the appellant. It has come on record that the respondent No.1 is residing in House bearing No.5‑E‑8/13, Nazimabad, Karachi. In the notice under section 14, the respondents had informed the appellant that the premises in question was required by the respondent No.1 for establishing his business. It is advantageous to reproduce section 14(2) of the Ordinance which reads as under:‑‑ "

14. Delivery of vacant possession (1) .................................................................. (2) The landlord shall not be entitled to avail the benefit of subsection (1) if he is in occupation of a building owned by him in any locality." Thus, reading of section 14(2) shows that the landlord shall not be entitled to claim the benefit of section 14(1) if he is in occupation of a building owned by him in any locality. It was contended by the learned counsel for the appellant that this provision is to b‑ interpreted in such a way that a landlord cannot be entitled to have the benefit of section 14 if he is requiring the residential premises in occupation of his tenant if he was himself in occupation of a residential building owned by him in any locality and similarly he will not be entitled to avail the benefit of section 14(1) of the Ordinance in respect of a commercial building in occupation of a building if the landlord was in occupation of a commercial premises owned by him in any locality. This point was considered in the case of Abdul Majeed v Mst. Naimunnisa Begum P L D 1981 SC

118. The relevant portion of the order of the Honourable Supreme Court is reproduced hereinbelow:‑‑ "The learned counsel contended that admittedly the landlady owned and possessed residential premises in the same locality, and therefore, the benefit of a summary eviction under subsection (1) of section 14 was not available to her. The learned counsel went on to argue that the language of subsection (2) is of the widest import and would mean that there would no occasion for a landlord to have recourse to subsection (1) if the landlord is owner in possession of any premises in any locality irrespective of the purpose for which the eviction was sought or the purpose to which the owned premises was in use. To our mind subsection (2) of section 14 cannot be read in isolation from subsection (1) for there has to be a nexus between the personal use for which the eviction is sought, and the premises said to be owned and possessed by the landlord in any locality referred to in subsection (2). The wide meaning sought to be put by the learned counsel to subsection (2) would negate the very intent of the Legislature which is to give the benefit to certain class of persons to obtain summary eviction for personal use only, if the other building owned by the landlord was in fact not put to such use or capable of being put to such use for which purpose eviction is sought, the existence of such other building would be irrelevant for the purpose of subsection (1) of section

14. To give an illustration, a landlord may be owner occupant of a godown premises in any locality which premises cannot reasonably be used as residential premises, but if the meaning sought to be given by the learned counsel is accepted, the result will be that such landlord cannot evict a tenant from a residential premises though the same may be required for the personal use of the landlord." The principle laid down it, the above judgment is that a landlord in occupation of commercial premises can claim a residential premises in occupation of a tenant under section 14(1) of the Ordinance and vice versa. It is to be seen whether the benefit of the principle laid down by the Honourable Supreme Court in the aforesaid judgment can be taken by the respondents in the facts and circumstances of the present case. It has come on record that the building is a residential building and the premises in question is G‑3 of the building on Plot No.1R‑9/127, Bellasis Street, Karachi. Nawab Ahmed, the respondent No‑1 admitted in his cross- examination that the premises is a flat which consists of two rooms and it also consists of kitchen, latrine and bathroom. He also admitted that there is no other commercial tenement in the present building. Let me break down section 14 to the basic components creative of the new right to recover possession or delivery of vacant possession of premises let out to a tenant. Premises, by definition, covers a building or land, let out on rent, but does not include a hotel. The word `building' is defined in section 2(a) of the Ordinance. It means any building or part thereof, together with all fittings and fixtures therein, if any, and includes any garden, garage, outhouse and open space attached to app4rtenant thereto. To attract section 14, 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, that he or she needs the building for personal use and require him (tenant) to deliver vacant possession of the building within such time as may be specified in the notice. In the instant case, the respondent No.1 was permanent defence employee and retired from Government service. These are f4lfilled here. The bone of contention between the parties is as to whether the premises let out are residential premises'. Admittedly, the premises were transferred as residential premises. For a long time, it was used as non -residential premises. Does user clinch the issue? Residential premises are not only those which are let out for residential purposes as the appellant would have it. Nor do they cover all kinds of structures where human may manage to dwell. If a beautiful bungalow were let out to a businessman to run 3 Show‑room or music society for musical uses, it remains nonetheless a residential premises. Otherwise, premises may one day be residential, another day commercial. Use or purpose of the letting is no conclusive test. Likewise, the fact that many poor persons may sleep under bridges or live in large lume pipes or crawl into Verandahs of shops and Bazars cannot make them residential premises. Engineering skills and architectural designing have advanced far enough to make multi purposes edifices and, by minor adaptations, make a building serve a residential, commercial or other use. It can be both, as needs demand. It is so common to see a home turned into business house. Many small‑scale industries are run in former living quarters. In a case reported in P L D 1983 Kar. at page 418, my learned brother Nasir Aslam Zahid, J. came to the conclusion, after giving cogent reasons, that the first floor of the premises did not lose its residential character on account of the same being given on rent to the tenant for being used for the time being as a short‑hand/typing school. It was further held that the fact of the first floor premises being used for shot‑hand/typing school did not change character of the first floor premises into a commercial premises. I am in respectful agreement with the decision cited above. Section 15(2)(iii)(b) of the Ordinance does not permit change of the purpose of the user or continued use for a changed purpose by acquiescence or the waiver of the landlord. In the circumstances, the respondent No.1 being in occupation of the residential premises, did not change the character of the premises in dispute into a commercial which are admittedly residential in character, could not derive benefit of section 14(1) by filing an application for eviction of the appellant from the premises in question, which, as observed earlier, has not lost their residential character and would continue to be treated as residential premises. Under section 14(2) a landlord is not entitled to avail benefit of section 14(1) if he is in occupation of a building owned by him in any locality. The respondent No.1 is admittedly in possession of the residential premises as such he could not maintain an application under section 14(1) of the Ordinance for the eviction of the appellant from the premises in question. Now I revert to the last contention of Mr. Khalilur Rehman that one of the joint co‑owners cannot evict the tenant from the premises in question. This contention is devoid of force. In Khalique Ahmed v. Abdul Ghani P L D 1973 SC 214 the Honourable Supreme Court observed at page 217 as follows:‑‑ "A suit for possession can be brought by all the co‑owners jointly. It is open, however, to one of them also to sue for possession, but he must join the other co‑owners as defendants and the decree will be for joint possession and not in favour of the plaintiff only. Unlike that, a suit for ejectment can be filed by one of the co‑owners without joining the others as defendants. This is the difference between an action for possession and an action for ejectment." In Allah Ditta and another v. Mst. Jamila Begum and others 1982 SCMR 642 it was held as follows:‑‑ "The next contention also has no force as respondent No.1 Mst. Jamila Begum is one of the owners and there is nothing to show that one of the co‑owners is not competent to bring the ejectment proceedings under the Rent Restriction Ordinance." In George Levi v. Mrs. Zakia Sultana 1984 C L C 3066 and Mst. Syeda Hyderi Khatoon v. Aftab Ahmed and 8 others 1986 C L C 1534, it was held that a co‑owner is competent to file eviction application. These decisions were followed in Mst. Wahabunnisa v. Haji Abdul Sattar 1989 C L C 517 and' Mashkoor Hassan v. Jannat Bibi 1991 C L C

934. I am in respectful agreement with this view. In this view of the matter, I hold that the eviction application was competent and could not be thrown out. I am of the opinion that a co‑owner is as much an owner of the entire premises as any sole owner of a property is. As I have held that the application under section 14(1) of the Ordinance filed by the respondent No.1 against the appellant was not maintainable under section 14(1) of the Ordinance, the present appeal, therefore, must succeed. First Rent Appeal No.29 of 1989 is allowed. The eviction order passed by the Controller is set aside. The eviction application is consequently dismissed. In the circumstances of the case, the parties are directed to bear their own costs. A.A./M‑1487/K Appeal accepted.