2004 PLP 326 (YLR)

As regards the contention of the learned Advocate for the petitioner that the application under section 14 of the Sindh Rented Premises Ordinance, 1979 is not maintainable as respondent herself let-out the premises in question by an agreement dated 1-1-1991, the contention of the learned Advocate has no force. The respondent who is admittedly a widow, even if the property was let-out by her, same does not disentitle her to file the application under section 14 of Ordinance,' 1979, provided she has not let-out the premises after she became a widow. It is not the case of the petitioner that the respondent after becoming widow has let -out any portion of the building. The next contention of the learned Advocate that the petitioner ought to have established her bona fide personal requirement, I have gone through the application as well as written reply filed by the petitioner and evidence on record. In the application filed by the respondent, the respondent categorically stated' that she needs the entire ground floor of the Building No.3-H, Civic Centre, Unit No.7, Latifabad, Hyderabad in possession of the opponent and Messrs Allied Bank of Pakistan Limited, for running a Boutique and Garment business. The respondent further stated that she needs the case premises for her personal bona fide use in good faith. The respondent also served notice under section 14 of the Sindh Rented Premises Ordinance, 1979, calling upon the petitioners to hand over the vacant possession as the respondent being a widow needs the entire ground floor of the building for her personal bona fide use. In reply statement, the petitioner stated that the respondent and her husband always demanded increase in the rent and pressurized the petitioner to submit before their demand. The petitioner also filed alongwith his written reply two letters written by the husband of the respondent dated 20-11-1999 and 16-2-2000 whereby the deceased as owner of the premises demanded increase in the rent. The petitioner also stated that the respondent has carved out the ground for running the Boutique and Garment Factory without any such intimation and that she does not need the said premises for her personal bona fide use as such ground has not been mentioned in the notice dated 31-10-2002 served under section 14 of the Ordinance, 1979. On behalf of the respondent, her attorney filed, an affidavit in evidence and in the affidavit he stated that the respondent needs the entire ground floor of the building in possession of the petitioner and Messrs Allied Bank of Pakistan Limited for running Boutique sales/show room and Garment business. In the affidavit in evidence, he further stated that, the respondent has filed Rent Application No. 18 of 2001 under section 15 of Sindh Rented Premises Ordinance, 1979, against Messrs Allied Bank of Pakistan Limited and same is pending before the Rent Controller. He further stated that the respondent is financially sound and in this regard produced a certificate issued by the National Bank of Pakistan showing a considerable amount in the account of respondent. The petitioner has not questioned the above statement of respondent's attorney in his cross examination whether' or not the premises in question is required by the respondent for her personal use. No such suggestion has been made. The only question put to the attorney of respondent on behalf of the petitioner was that the respondent No.1 has no experience of the business. In reply to a question the respondent stated that she intended to run a Boutique and sewing factory by investing at least Rs.2,00,

000. The petitioner's Area Manager filed an affidavit in evidence and in the said affidavit while mentioning the enhancement of the rent from time to time he stated that the respondent has carved the ground for running Boutique and Garments factory, and in this regard reliance has been placed on the notice dated 31-10-2000 in which respondent has not stated that the premises is required for establishing Boutique Show Room/Garments business. In the case of Mst. Jamila Lateef. v. Salim Ahmed Khan 1988 SCMR 895 Honourable Supreme Court held that good faith and bona fide requirement was not a relevant consideration for deciding application under section 14 of the Sindh Rented Premises Ordinance, 1979. In the case of Ghulam Muhammad v. Zahir Ahmad Khan 1986 CLC 681 this Court held that the term need appears in section 14 was not just a mere wish or desire and need cannot be attributed to a arbitrary desire-of the landlord. I have gone through, the case-law relied upon by the learned counsel for the petitioner. If section 14 and section 15(vii) of Ordinance, 1979 read together, a significant difference can be noted in these two sections. Section 14 provides special summary remedy to specified classes or persons like retired person, widow or orphan to get possession of the premises owned by them if they need the same for personal use. Provision of section 14 curtails the right to seek ejectment from the premises by retired salaried person, widow or orphan if they have let out the building after retirement or attaining the age or sixty years or on becoming widow or orphan or that they are occupying the other, premises in the same locality. Whereas I under section 15(vii) of the Ordinance, 1979, landlord can ask for ejectment of the tenant if landlord requires the premises in good faith for his own occupation or use or for the occupation or use of his spouse or any of his children. The Legislature in his wisdom has not used the word `good faith in section 14 and intentionally used the word `need'. The term `need' used in section 14 of Ordinance, 1979 cannot be equated with the term "requires the premises in good faith" used in section 15 of Sindh Rented Premises Ordinance, 1979. The retired person/widow/orphan or a person aged over sixty normally cannot be asked to establish his `bona fide requirement' on the same scale as that required under section 15 of the Ordinance, 1979. In the instant case, the respondent categorically stated that the respondent needs the, premises for establishing Boutique/Garments business in it and for that she has sufficient fund at her disposal. The statement further fortified that the respondent had filed the case against other tenant in occupation of adjacent premises so as to establish Boutique and Garments business on the entire ground floor. In view of above the contention by the learned counsel that the respondent fated to establish personal need of the premises has no force. The learned counsel for petitioner questioned the order on the ground that since the respondent has failed to appear in the witness-box to show her personal bona fide requirement, the impugned order ought to have been set aside. In support of his contention he relied upon the case of Arshad Butt v. Manzoor Ahmed 1992 CLC

723. In the said case the attorney had appeared on behalf of the landlord and gave evidence for the personal requirement of the landlord. I have gone through the said judgment and from the facts of the said reported case it appears that the landlord had sold out the property before filing the case to the attorney and executed an irrevocable, power of attorney in favour of the purchaser/attorney who filed the case on behalf of the landlord from whom he had acquired the right in the property. The landlord was resident of Islamabad, whereas attorney was residing at Karachi and under these circumstances, it was held that evidence of attorney is not sufficient to establish personal need of landlord. Whereas in the instant case it is not the case of the petitioner that the respondent has sold out the property to his attorney who is her son-in-law. The respondent had, executed general power of attorney on a stamp paper of Rs.500 duly attested by the First Class Magistrate. From the perusal of the said power of attorney, it appears that the attorney who is son-in-law of the respondent has been authorized to appear on behalf of the respondent in judicial proceedings and also to swear affidavit and depose on oath on her behalf. In the written reply also the petitioner has not questioned the authority of the said attorney who filed the rent case on behalf of the respondent., Even in the cross examination, no suggestion has been put to the attorney that he has no authority to give evidence on behalf of the respondent. In the case of Ghaffar Impex, Karachi v. Mst. Hajira 1998 MLD 788 Mr. Syed Deedar Hussain Shah, J. (as his Lordship then was) accepted the evidence of landlady's son as her attorney about requirements of premises for personal need of landlady. In view of above, the contention raised by the learned counsel for the petitioner has no force. The petitioner also questioned the maintainability of the rent case on the ground that the respondent, who is admittedly a widow and being one of the legal heirs of the deceased Muhammad Sadiq, cannot maintain application under section 14 of the Sindh Rented Premises Ordinance, 1979 without joining the other legal heirs of the deceased who are holding about 0-88 paisas share in the said property. In the written reply, although the petitioner has not taken specific plea in this regard but petitioner has stated that the respondent has no locus standi to file the present application for the premises in possession of the petitioner. In the affidavit in evidence filed on behalf of the petitioner, the petitioner's witness stated that the application has been moved by one of the legal heirs without any lawful authority and having meager share in the property and according to law the case is to be dismissed with costs. The learned Advocate in support of his contention relied upon the case reported in 1986 CLC 1534. It is an admitted position that the respondent has inherited 12 paisas share in -the property in question and being one of the co-sharers in the proper filed the application under section 14 of the Sindh Rented Premises Ordinance, 1979, as a widow of the deceased landlord. I have gone through section 14 of the Sindh Rented Premises Ordinance, 1979, which provides a summary remedy to a widow to get the possession to the premises from the tenant and I found no restriction on the right of the widow to file the application without joining the other legal heirs of the deceased and/or that before filing such application the widow ought to have filed no objections of other legal heirs. In the case of Syeda Haidry. Khatoon v. Aftab Ahmed 1986 CLC 1534 this Court had held that a widow as a co-owner is entitled to press into service application under section 14 of the Ordinance, 1979, provided the other co owners/legal heirs support her application or the portion of the building for which she has applied for ejectment has fallen to her share upon partition of the property. It was further held that in case where the other co owners do not support a widow in he, application under section 14 of the Ordinance application under section 14 of the Ordinance cannot be pressed into service. In the instant case, none of the legal heirs has opposed the application filed by the widow. In the case Ghaffar Impex, Karachi v. Mst. Hajira 1998 MLD 788; Syed Deedar Hussain Shah, J. (as his Lordship then was) reproduced a quotation from an unreported case Civil Appeal No.142-K of 1983, where the apex Court held that:-- "It is difficult to agree with the contention raised on behalf of the appellant. Quite obviously the object of section 14(1), ibid, is to lessen the hardship which a widow not infrequently faces on the death of her husband and to assist her in settling down again. Therefore, it will not be proper to construe this provision in a manner which would defeat the very purpose for which it has been enacted. The relevant words in the subsection. are; the landlord of a building who is a widow. There is no reason at all why these words should be taken ' to refer only to a widow who was the owner of the building before the death of her husband or who is sole heir of the original landlord. Such a narrow construction would leave out from the benefit of the provision in question a widow with minor children who has to leave the residence which was formerly given to her husband by his employer or one who purchases a house for personal use from the funds `made available to her on the death of her husband there is no compelling reason for placing such a narrow construction on the provision. There is also no merit in the contention that an application made by a widow under section 14(1) would be in derogation of the rights of the other heirs in the property." In view of the principle laid down by the Honourable Supreme Court the contention of the learned Advocate for the petitioner that an application under section 14 of the Sindh Rented Premises Ordinance filed 'on behalf of the widow is not maintainable without joining the other legal heirs have no force. It may be, since none of the legal heirs came forward to object about the maintainability of the rent case filed by the respondent as one of the legal heir, I can presume their consent for filing the rent case by the widow as one of the co-sharers in the property. Adverting to the last contention of the learned Advocate that the application under section 14 is not maintainable in view of the bar under section 14(2) of the said Ordinance, the learned counsel heavily, relied upon the cross-examination of the petitioner witness which are reproduced:-- "It is incorrect to suggest that the demised premises is required for personal need of the applicant for running the business of Boutique and she has no other premises to run such business, a shop is lying vacant beside the demised shops belonging to the applicant. The said shop is equally-in length with demised shop and is about 14 feet in width. It is incorrect to suggest that the said shop is 10 feet in width .It is incorrect to suggest that the demised-shop as well as the remaining ;premises adjoining the same are required for' Boutique and garments to, the. applicants:" Before I discuss the said portion of the cross-examination reproduced herein above, I would like to mention here that in the written reply filed by the petitioner, petitioner has not stated a. single word that the respondent is in occupation of, any commercial premises. Only plea taken in the written reply filed by the petitioner is that the respondent has filed the, rent application with ulterior motives and object only to ,pressurize the petitioner for acceptance of her illegal demands to increase the rent.' From `the perusal of the cross-examination of , the respondent witness, it appears that no, suggestion has been made during the cross-examination of the respondent witness that the respondent is in .possession of any commercial premises so as to attract bar under section 14, subsection (2) of the Ordinance, 1979. Even in the affidavit in evidence filed by the petitioner, petitioner has not alleged that the respondent is in possession of any commercial premises in order to attract bar. During the cross-examination, it appears that some suggestion has been made and/or that the petitioner has made some voluntarily statement that a shop is lying vacant belonging to the applicant. From the said suggestion, it cannot be said that the respondent is in physical possession of the said shop. The petitioner has not filed any application for leading additional evidence before the Rent Controller nor before the Appellate Court so as to discharge the burden that the respondent is in occupation of any commercial premises. In my humble view, the petitioner has failed to discharge the burden and the petitioner has neither taken such plea in his written reply nor during the cross-examination of the respondent the witness made any such suggestion, nor in his affidavit. in evidence he narrated said facts. The respondent's case, right from beginning is that the ground floor consisted of two shops which the- respondent needed for her personal requirement to establish Boutique and Garments shop in it. One shop is in possession of the petitioner and other is in possession of Messrs Allied Bank of Pakistan Limited against, which the respondent has filed another rent case under section 15 of the Ordinance, 1979, which is pending before the Rent Controller. The petitioner has even at this stage not produced the approved plan of the building in which shop in question is situated to establish that on the ground floor of said building there are more than two shops as alleged by the petitioner. The petitioner could have produced photograph of the said property to prima facie establish that on the ground floor there are more than two shops and one is in occupation of the respondent. In view bf these admitted facts in my opinion petitioner has failed to make out any case calling for interference in exercise of writ jurisdiction. For the foregoing reasons the petition is dismissed in limine. The petitioner is directed to vacate the premises in question within a period of 4 months from the date of this order failing which writ of possession may be issued. M.H./S-346/K Petition dismissed.