1989 PLP 189 (MLD)

"That the applicant does not require the case shop for personal use. The ejectment application has been got filed by Abdul Hafeez Siddiqui and other legal heirs of late Muhammad Fazal-e-Haq with mala fide intentions as he did not agree to their demand of payment of Pugree and increase in the rent." Even it was suggested by the appellant in cross‑examination that:‑ "The Pugree of the area had increased, as such, the brothers of her husband wanted to get premises with her help." The learned counsel appearing for the appellant has relied upon the following decisions:‑

1. A.R. Khan v. P.N. Boga (PLD 1987 SC 107) wherein it was observed by their Lordships while considering the question of estoppel that:‑ "When a deed confers on a person certain benefits burdened with certain obligations, that person has the right to elect whether he could take the benefits under the deed or not. If he does elect to take benefits under the deed, he must also, bear the burdens created thereby. The law does not permit him to retain the benefits and repudiate the burdens."

2. Syed Arif Shah v. Abdul Hakim Qureshi (PLD 1986 SC 155), while relying upon the definition of landlord as defined under section 2(f) and section 15 of the Sind Rented Premises Ordinance 1979, and section 116 of Evidence Act, it was observed: "That the learned counsel for the petitioners admitted that Mutawalis or transferees are managers or Wakf properties which inter alia entitled them to receive the rent or Wakf properties which have been given on lease. He also admitted that the premises in question were let out to the petitioners by the respondents and it is to them that they (i.e. the petitioners) used to pay the monthly rent. In view of this admission it is evident that it does not tic in their mouth to deny that the two respondents are their landlords for the purposes of section 15 of the said Ordinance, not only because the respondents co‑mutawalis are covered by the definition of the word `landlord' as given in section 2(f) of the aforementioned Ordinance, but also because of the bar placed on the petitioners by section 116 of the Evidence Act." In the above case, their Lordships have also referred to the case of Kalimullah v. Amin Hazin and others (1976 SCMR 77) in which it was observed as follows:‑ It seems to us that High Court has rightly held that once a person has accepted another as his landlord and entered into possession of the premises, as such tenant, he cannot be allowed to challenge the title of his landlord," and petitions for leave filed by the petitioners/tenants against their ejectment on the ground of personal bona fide requirement was dismissed.

3. Shaheryar Ali Patudi and three others v. M/s. Decora Furnishers (PLD 1985 Kar. 47), wherein it was observed by this Court that:‑ "A co‑owner is entitled to recover rent on behalf of or for the benefit of other co‑owner. One of the co‑owners can validly enter into an agreement to lease the premises and he shall be deemed to be a landlord. It is not necessary to join all the co‑owners in the lease. A person having an undivided share in a house or rented land is a part owner and has a right to recover rent on behalf of the co‑owner. The following decisions were relied upon by Mr. Raja Haq Nawaz Khan learned counsel appearing for the respondent; (1) 1983 SCMR

65. In this case the tenants/appellants were directed to deposit arrears of rent as well as future rent by 15th of each month. The tenants deposited arrears of rent as well as future rent but the rent for the month of May, 1977 was deposited on 20‑6‑1977 and therefore their defence was struck off. They filed an appeal before the District Judge and second appeal before High Court but the same were dismissed. A petition for leave to appeal was filed before the Hon'ble Supreme Court, and it was contended that respondent Mufti Abdul Ghani was neither owner nor the transferee of the property in dispute and had even otherwise no locus standi to institute any action against the petitioners and that this point was not decided by the Rent Controller before passing the tentative order, and therefore the leave was granted and status quo was ordered to be maintained. (2) 1982 CLC 1871. In this appeal before the High Court an application was filed by the respondent/landlady requesting therein that the appellant/tenant may be ordered to deposit arrears of rent and electricity charges and also future monthly rent. It was contended on behalf of tenant/appellant that the property belonged to the Evacuee Trust Property Board vide order dated 7‑8‑1979, and that it's transfer in favour of Muhammad Ahmed and Abdul Rasheed (from whom the property had been required by the respondent) was illegal and P.T.Ds. issued by Settlement Department were cancelled and therefore, the tenant/appellant could not be directed to deposit rent. Reliance was placed on 1983 SCMR 65 and PLD 1973 Kar. 284 and the learned Single Judge of this Court was pleased to observe that the contentions raised by the learned counsel for both the parties are arguable contentions and the points which arise will be properly decided at the time of regular hearing of the appeal, and therefore, instead of ordering the appellant to deposit arrears of rent as well as future rent he was directed to furnish security in the sum of Rs. 15,000. (3) Mojnul Hassan v. A.R. Junaid 1985 CLC 882 it was observed by this Court. "While interpreting sections 14, 15(2)(vii), and Term `Landlord' it was held that the term landlord used in section 14 and even in subsection 2(vii) of section 15 has been used for the owner of the premises and not for the Rent Collector or an agent who is not the owner of the property but a landlord within the meaning of section 2(f) of the Sind Rented Premises Ordinance." (4) Mst. Saeeda Hydri Khatoon v. Aftab Ahmad and others (1986 CLC 1534). 1t was observed by this Court that:‑ "A widow as co‑owner is entitled to press into service section 14 of the Ordinance, provided the other co‑owners/legal heirs support her application, or portion of the building for which she has applied for ejectment has fallen to her share upon partition of the property. However, in a case where the other co‑owners/legal heirs do not support a widow in her application under section 14 of the ORDINANCE. In my view section 14 of the ORDINANCE cannot be pressed into service. (5) 1n the case of Mst. Fatima Bi v. Issa (1986 CLC 2639). While considering the object and scope of section 14; it was observed by this Court that:‑ "In my view she cannot afford to occupy and live in both portions alone she may be competent to file ejectment application under section 14 of the Ordinance. She is entitled to 1/8th share from the property and the co‑sharers having 7/8th share in the house have neither filed any rent case under section 15 of the ORDINANCE nor they have come forward to give evidence for her. The case of the appellant as given in rent application that house is required for her use and for the use of her son has not been proved. It has also not been proved that she needed both the portions of the house for her personal bona fide use. Had she been in actual need of a house she could have applied for one portion of the house and not for both the portions consisting of six rooms. The bona fide requirement was, therefore, held to be doubtful.

6. As far as the decision of the Hon'ble Supreme Court in the case of Province of Punjab v. Mufti Abdul Ghani was concerned, the relationship of landlord and tenant was disputed and the Rent Controller had failed to decide the question of jurisdiction before passing tentative order regarding deposit of rent and, therefore, the Supreme Court was pleased to grant leave and status quo was maintained. In the above decision the case was not decided but only leave granted. Moreover the contention was that respondent Mufti Abdul Ghani was neither owner nor transferee of the property, m dispute and even otherwise he had no locus standi to institute the ejectment proceedings and, therefore, with utmost respect the decision is distinguishable and does not apply to the facts of the present case. As far as the second case of Abdul Sattar v. Nasima Bi was concerned, on one hand the PTD issued in favour of the persons from whom the respondent had acquired title was cancelled by the Chairman Evacuee Trust Board, and on the other hand the decision was given on an interlocutory application made for directing the tenant /appellant to deposit arrears as well as future rent and it did not decide the point m disputed and, therefore, the same was not applicable to the facts of the present case. As for as the case of Moinul Hassan v. A.H. Junaid was concerned, it does support the contention of the learned counsel appearing for the respondent to some extent but the facts of the present case were distinguishable to some extent inasmuch as the appellant was not merely agent or rent collector of the actual owner but she had 1/8th share in the property and the respondent had executed an agreement of tenancy in favour of her husband who had put him in possession of the premises in dispute. Even the co‑sharers never objected to the payment of rent to the appellant or her husband. As far as the decision in the case of Syeda Hydri Khatoon v. Aftab Ahmed and 8 others; was concerned, it shows that a widow as co‑owner was entitled to press into service section 14 of the Ordinance provided the other co- owner/legal heirs supported her application. In the present case it was the case of the respondent that the appellant was set up by the other owners/other legal heirs of deceased to get the shop in question vacated and, therefore, the above decision instead of helping the respondent supports the case of the appellant. As far as the decision in the case of Fatima Bi v. Issa was concerned, the learned Judge had dismissed the appeal on the ground that she was not able to prove that she required the 2 portions of the house consisting of six rooms for her personal bona fide use and since the bona fide requirement was doubtful and, therefore, the application was dismissed. Therefore the above decision is also distinguishable and does not apply to the facts of the present case. As far as the decision in the case of Yousuf and another v. Muhammad Zubair and others (P.L.D 1986 SC 154) and Shaheryar Ali Patudi v. M/s. Decora Furnishers (P.L.D. 1985 Kar. 47) were concerned, they are applicable to the facts of the present case. In the Supreme Court case, while relying upon the definition of `landlord' under section 2(f) of Sind Rented Premises Ordinance, their Lordships were pleased to hold:‑ "Even mutawallis or transferees or nominees of the Wakf properties oho were entitled to receive rent of the Wakf properties, they were entitled to possession in the ground of personal use." In view of the above factual as well as legal position I am of the considered view that the application filed by the appellant under section 14 of the Rented Premises Ordnance was maintainable and she has been able to prove that she required the shop in dispute for her personal bona fide use. It was also proved that she was not occupying any other shop in some other locality or in whole in Karachi. I therefore, alloy this appeal, set aside the order of the Rent Controller and allow the ejectment application filed by the appellant. However, since the premises in dispute are commercial premises I allow six months time to the respondent to hand over the vacant possession to the appellant subject to the condition that he continues to pay monthly rent regularly. However if the premises are re‑let by the appellant. The respondent can have resort to section 15‑A of the Ordinance. M.Y.H./S‑278/K Appeal allowed.