1988 PLP 619 (MLD)

Date of hearing: 19th October, 1987. This is an appeal under section 21 of the Sind Rented Premises Ordinance, 1979, hereinafter called "the Ordinance," against the order dated 15‑4‑1987 passed by the learned Vth Rent Controller, (West), Karachi in Rent Case No. 548 of 1986, allowing the respondent's application under Section 14 of the Ordinance.

2. The facts giving rise to this appeal, briefly, stated, are that the respondent who is a widow filed an application under section 14 of the Ordinance against the appellant for his eviction from the shop situated on Plot No. LS‑11 Block No. 2, Azizabad F. B Area, Karachi. The said shop was let out by her deceased husband in November, 1979. Her husband died on 23rd December, 1983. The notice as required under Section 14 of the Ordinance was given to the respondent on 1st March, 1986 to vacate the said shop. The appellant having failed to vacate the said shop, the respondent had no alternative but to file ejectment application on 24‑4‑1986. The respondent/applicant examined herself and her son, Abdul Aziz, who used to collect the rent from the appellant. The appellant examined himself and one witness, Jamshed Ali. The learned Controller after hearing the arguments of the counsel for the parties allowed the application by his order dated 15‑4‑1987, directing the appellant to handover possession of the shop in question within 60 days thereof.

3. Mr. Imran Ahmad, learned counsel for the appellant has raised the following contentions in support of his appeal. (i) That the respondent, after the death of her husband had increased rent from Rs. 400 to Rs. 500 and, therefore, there exists a new contractual tenancy between the parties. (ii) The application is not maintainable, as the respondent being a widow is entitled to 1/8 share in the premises only, without joining other legal heirs. (iii) The need has not been proved according to law.

4. As regards the first contention, the facts on record do not support it. The examination of the receipts produced by the son and Rent Collector of the respondent reveals that previously the rent was undoubtedly Rs. 400 per month (vide receipts Nos. 1 to 21) showing rent for the month of February, 1980 to June 1982. The receipt No. 22 dated 4‑8‑1982 and onwards upto the receipt No. 44 A show the rent for the month of July 1982 and onwards at Rs.

500. It means that the rent of the shop in question from Rs. 400 was increased to Rs. 500 during the lifetime of the deceased husband. The contention, therefore, has rightly been disbelieved by the learned Rent Controller. I have no reason to take a different view.

5. As regards contention No. 2 that the application for ejectment, in its inception, was not maintainable is also without any force. This plea has not been taken in the written statement. Mr. Imran Ahmad, however, invited my attention to the last paragraph of the written statement, which inter alia reads that "the case B is incompetent, bad in law and mala fide and as such it is liable to be dismissed with cost." The literal meaning of the word "incompetent' as given in Chambers Dictionary is lacking adequate powers, lacking the proper, legal qualifications, grossly deficient inability for one's work. The word `bad' has been defined as incorrect, faulty or worthless. None of the words, `incompetent' or bad in law' lend support to the non‑maintainability of the application itself. Even if the question of maintainability is now considered, I am not impressed by the arguments of the learned counsel that the widow had no authority to file the application. Undoubtedly, she is only the co‑owner and co‑landlady, but by no stretch of imagination application for ejectment can be said to be not maintainable. In the facts and circumstances of the case the application under section 14 could be filed by the respondent widow only who was quite competent. Furthermore, in the absence of any objection by the other heirs to the said application for ejectment and one of the sons in fact examining himself and supporting the application and the other son who is to be established in the business alongwith the respondent, the argument loses all its force.

6. In support of the third contention that the application under Section 14 of the Ordinance envisages the need of the widow herself and not that of her son, learned counsel for the appellant placed his reliance on the case of A.S. Mughal v. Mst. Khurshid Azmat Ali (PLD 1982 Karachi 406). .

7. On the other hand, Mr. Zahid Marghoob, learned counsel for the respondent relies on the case of Dr. Roshan H. Nanji v. Mst. Razia Khatoon (1984 CLC 2343). It appears that the decision of a learned Single Judge in the case relied on by Mr. Imran Ahmad, was appealed against before the Honourable Supreme Court, as has been referred to in Nanji's case (1984 CLC 2343). I sent for the file of the case from the office and had the occasion to go through the entire judgment of the Honourable Supreme Court. In the said case an application under Section 14 of the Ordinance was filed by the landlady requiring her tenant to vacate the premises on the ground that she had attained the age of sixty years and that she needed the same for her own use and for the use of her daughter. The learned Rent Controller after recording the necessary evidence allowed the application. The tenant filed an appeal in the High Court wherein it was urged that the landlady was not entitled to claim the .possession of the premises for the use of her daughter. The said ground prevailed with a learned Single Judge of this Court and the order of the learned Rent Controller was set aside. In appeal before the Honourable Supreme Court the said judgment of the learned Single Judge (PLD 1982 Karachi 406) was set aside. It seems advantageous to reproduce paragraphs Nos. 10 and 12 of the said judgment, which read as under:‑‑ "This brings us to the question as to whether the Rent Controller was justified in allowing the application for ejectment on the ground that the premises was also required for the use of the appellant's daughter. It was contended by the learned counsel for the appellant that in the present case the requirement for the daughter of the appellant was also virtually the requirement of the appellant herself because, she, being old and in urgent need of her daughter's support at every moment of her life, required the disputed premises to accommodate her daughter with her and it had been established on the record that Mst. Mah Jabeen with her children had all along been living with the appellant. It was also pointed out by the learned counsel that the appellant had in fact claimed possession of the disputed premises for her personal bona fide use as well, as was clear from paragraph 2 of her application for ejectment and paragraph 5 of her affidavit of evidence. In this context, it was asserted that the allegation, that the premises were required for the use of the appellant's daughter, was subsidiary in nature and the primary requirement continued to be the personal requirement of the appellant herself."

12. On the looking into the application and the affidavit of the appellant, we are satisfied that the appellant had claimed the possession of the disputed tenement for herself also. The appellant being an old lady cannot be expected to live alone, and, therefore, we find much force in the contention of the learned counsel for the appellant that the requirement of the appellant for the disputed tenement was also covered on the basis of her pleadings as also the evidence brought on the record."

8. The respondent in paragraph No. 3 of her application stated "that the rented premises in occupation of the opponent is required by the applicant for her personal bona fide need in order to establish her son Javed Iqbal in business". In the notice sent by her Advocate under Section 14 of the Ordinance which was served on the appellant prior to the filing of the ejectment application, it was stated in paragraph No. 3 of the said notice (Ex. A/4) that the rented premises in your occupation is required by my client for her personal bona fide need and occupation in order to accommodate and establish the business of her son, namely, Javed lqbal, being financially handicapped." In the cross‑examination not a single question has been put to the respondent or her witness to disprove the need. I am, therefore, in agreement with the learned Rent Controller on the issue, that the premises is required by the respondent for her own use. Naturally, she is an old lady and will require her son to sit at the shop, but all the more it remains her need. It is also noticeable that Section 14 requires for personal "use" as against the words use" and occupation" in Section 15 of the Ordinance.

9. Lastly Mr. Imran submitted that the respondent wanted to dispose of the shop and that she will not establish her business. It was further submitted by him that in fact, the appellant offered Rs. 80,000 as sale consideration to her before the institution of the ejectment case, but she entered into an agreement of sale with another person Bashir Shah for a sale consideration of Rs. 90,000 from whom she has received a sum of Rs. 45,000 as earnest money. The appellant, however, failed to substantiate his allegation before the learned Rent Controller, inasmuch as Bashir Shah was neither produced nor was summoned to give evidence on behalf of the appellant. In any case, I asked the learned counsel for the respondent if the respondent would be ready to sell the premises to the E appellant for sale consideration of Rs. 90,000 which was offered by Mr. Imran at the close of his submissions. Learned counsel for the respondent after consulting with the respondent and the son, who are present in Court submitted that the respondent herself required the premises for her own personal use in order to establish her son in business, who is B.Sc. and is jobless for the last two years or so.

10. In any case, in Section 15‑A of the Ordinance (as amended) sufficient safeguard is provided for the appellant, in case the respondent puts the premises to a use other than personal use.

11. For the reasons discussed above, the appeal is dismissed, but with no order as to costs.

12. Mr. Imran requests for two weeks' time to vacate and hand over the p premises to the respondent. Since the premises in question is a shop, I will allow one month's time to the appellant to put the respondent into possession, failing which the appellant will be liable to be ejected without notice. Appeal dismissed.