1989CLC517 (PLP)

For the purposes of this appeal filed under section 21 of the Sind Rented Premises Ordinance, 1979, the following statement of facts would suffice:‑‑

2. Muhammad Azizullah, the husband of appellant was the owner of two shops bearing Nos.9‑A and 9‑B, near Firdous Cinema, Liaquatabad, Karachi, occupied by the present respondent and one Haji Abdul Ghaffar. On 10‑7‑1984, the said Muhammad Azizullah died leaving behind the appellant and two daughters namely, Mst. Wasima and Mst. Naeemunnisa. The appellant wanted to start her own business in both the connected shops by removing the partition wall. She, therefore, approached both the tenants for vacating the same, but with no result. The notices served under section 14 of the Sind Rented Premises Ordinance, 1979, were ignored by both the tenants. On 1‑12‑1984, the appellant filed an application for ejectment against the respondent under section 14 of the Sind Rented Premises Ordinance, 1979, in respect of shop No.9‑B, in the Court of Senior Civil Judge and Rent Controller VI, Karachi.

3. The respondent contested the application on the following grounds:‑‑ (i) That the appellant not being the sole owner of the property was not competent to bring the application for ejectment (ii) That the appellant is not entitled to avail the benefit of subsection (1) as she is in occupation of a building owned by her in the locality. (iii) That there being an agreement of tenancy in between the late husband of the appellant and the respondent, thereby bartering away his personal need under the law indefinitely after accepting huge amount of PUGREE, and the appellant was bound by such agreement.

4. The appellant has examined herself (P.W.1), while the respondent has examined himself (D.W.1) and his son Abdul Majeed (D.W.2).

5. On the basis of the evidence adduced by the parties and taking into consideration the changed circumstances, the learned Rent Controller decided issue No.l against the appellant and thereby dismissed the application for ejectment vide order dated 24‑3‑1987. This order is the subject matter of the present appeal.

6. Admittedly the appellant, who is a widow, is co‑owner of the property in' dispute. The word "owner" does not contemplate a sole‑ owner. The cases reported as George Levi v. Mrs. Zakia Sultana (1984 C L C 3066) and Mst. Syeda A Hyderi Khatoon v. Aftab Ahmed and 8 others (1986 C L C 1534), lay down that a co‑owner is competent to file such application for ejectment. I am in respectful agreement with this view.

7. There is no evidence on record to prove that the appellant is in occupation of a commercial‑building owned by her in any locality. As observed in Ulfat Hameed v. Mst. Birjis Khatoon, reported in P L D 1982 Kar. 823, the word "building" defined in section 2(a) of the Sind Rented Premises Ordinance, 1979, cannot be interpreted to mean only residential building. The eviction of a tenant from a commercial building under section 14 was held to be maintainable in law. B The cases of Syed Mujtaba Hussain Abidi v. Ferozuddin Zakai (P L D 1985 Kar. 663) and Abdul Majeed v. Mst. Naimunnisa Begum (1985 S C M R 239) are again relevant. In the latter authority it was observed that section 14(2) of the Sind Rented Premises Ordinance, 1979, could not be read in isolation from section 14(1) and nexus has to be there between personal use for which eviction was sought and premises said to be owned and possessed by the landlord in any locality referred to in section 14(2).

8. During the pendency of this case before the Rent Controller, the appellant succeeded in getting an order of ejectment against the tenant of Shop No.9‑A, which ultimately ended in compromise before this Court in the following terms:‑‑ "In the above matter the parties have arrived at a compromise and terms are as under:‑‑ (1) That the appellant shall vacate the shop No.9‑A Commercial Area Group No.2 near Firdous Cinema, Liaquatabad,.Karachi within two years from today viz. 12th October, 1986. He will also vacate the Ist floor on the said shop and deliver vacant possession of the shop and Ist floor on 12th October 1988, failing which the respondent can execute the decree and ejectment will follow without Notice and with Police aid. (2) That the appellant shall pay rent at Rs.400/‑ p.m. from 1st. October 1986 up to the time he vacates the said premises instead of Rs.245 previous rent. (3) That the respondent shall have full right to dispose of the said shop during this period and the appellant can purchase the same if he so desires according to its market value. (4) That the appellant will give all the photo copies of rent receipts to the. respondent and assist her in withdrawal of rent from Court. This compromise will be binding upon the legal heirs of appellant and respondent. (5) That the parties shall bear their own costs of case."

9. The learned Rent Controller considering this compromise as fresh tenancy agreement denied the benefit of section 14 of the Sind Rented Premises Ordinance, 1979, to the appellant. He, however, lost sight of the fact that only execution of eviction order was postponed for two years and the order of ejectment is to be executed accordingly under the terms of compromise. The facts of the case of Mst. Birjis Khatoon v. Jabbar Ahmed (1983 C L C 3066) relied upon by the learned Rent Controller are again distinguishable. A compromise, which includes matter extraneous to point in issue, cannot be turned into a fresh agreement of tenancy. The case of the appellant is, therefore, not hit by the proviso to subsection (1) of section 14 of the Sind Rented Premises Ordinance, 1979.

10. The respondent had also resisted his eviction on the strength of the agreement (ExhA/1), which recites that he would not be evicted from the disputed premises under any circumstances. Admittedly this agreement was executed on non‑judicial stamp paper worth Rs.4 and is not registered one. No period of tenancy is provided in this agreement and, therefore, this agreement can at best be treated as an agreement of lease for a period less than one year? (Refer Mustafa Hussain Siddiqui v. Malik Islam Akbar, reported in 1984 C L C 2869.

11. The plea of payment of PUGREE to the late husband of the appellant is not borne out from the record. Even otherwise any transaction of this nature would be violative of law and will not be enforceable under section 23 of the Contract Act, 1872. To this extent I am in agreement with the view taken in Muhammad Hanif v. Mumtaz Ahmad, reported in P L D 1986 Karachi

16. The 'personal requirement' of a widow and the ejectment sought in terms of section 14 of the Sind Rented Premises Ordinance, 1979, however, cannot be defeated even if this agreement is taken on face value. It may be noted that no body can opt or contract out of the legal protection. The well‑known case of EA. Evans v. Muhammad Ashraf, reported in P L D 1964 S C 536, can be referred as authority on this subject. Section 14 being a special law introduced for the benefit of widows, orphans, persons of old age and retired salaried employees should be interpreted so as to advance the cause of justice.

12. The evidence which has come on record proves:‑‑ (a) That the appellant is a widow. (b) That the appellant, by a notice in writing, informed the respondent that she needs the shop in his occupation for her personal use. (c) That the appellant has not rented out any shop after she became a widow. (d) That the appellant is not in occupation of any commercial premises owned by her in any locality.

13. In this view of the matter, the finding of learned Rent Controller cannot be sustained. The impugned order is, therefore, set aside and the respondent is directed to vacate the demised premises within a period of two months. The appeal is accepted, but the parties are left to bear their own costs. H.B.T./W‑37/K ????????????????????????????????????????????????????????????????????? ??????????? Appeal accepted.