1998 PLP 788 (MLD)

The contention of Mr. Muhammad Farooq Hashim that N.I.C. of Mst. Hajra bears her L.T.I. whereas she has signed the application which shows that Mst. Hajra has not signed the General Power of Attorney and the ejectment application and both these documents cannot be considered and that the learned Rent Controller has not considered that amount of Rs.1,25,000 was paid as 'Pugree' by the appellant/opponent. The only answer to the above contention of Mr. M. Farooq Hashim is the answer furnished by Muhammad Ilyas, proprietor of the opponent, which reads as under:-- "It is correct that after the service of notice under sections 18 and 14 of SRPO 1979 I am depositing rent in Court in the name of Legal Heirs of late Soomar including the applicant. It is correct that applicant do not possess any other godown except the case premises. It is correct that Muhammad Rafiq is a son of late Soomar. It is correct that Mst. Hajra is a widow of late Soomar. It is correct that the applicant demanded the possession of case premises for her use occupation. It is correct that in my written statement I did not mention about the Exh.A/2. It is correct that the present application has been filed by Mst. Hajra widow of Soomar against me." In the written statement also it is not mentioned that an amount of Rs.1,25,000 was paid to Soomar as pugree but the actual words in W.S. filed by the appellant/opponent which read as under:- "The premises has been obtained by the opponent on pagree basis and it was agreed and understood that the opponent shall not be ejected in view of the consideration of pagree paid by opponent for the said premises. " The none mention of the amount Rs.1,25,000 clearly shows that it is an after?thought and the defence has been created by submitting this document. The very admission of the appellant/opponent mentioned hereinabove clearly establishes that Mst. Hajra, the widow of late Muhammad Soomar, requires the premises in question for her personal bona fide need as after the death of her husband the income of the family .has reduced and she intends to start motor workshop in the demised premises with her two sons namely Muhammad Sharif and Muhammad Shakil who are drivers and mechanics want to run the motor workshop. It would be pertinent to discuss the case laws cited by the learned counsel for the parties"-- (1) PLD 1982 Karachi 406: In this case it was held that the respondent already attained the age of 60 years. Ejectment application filed beyond 6 months is barred under the proviso of section 14 of the Ordinance. Whereas in the case in hand admittedly Mst. Hajra is the widow of Muhammad Soomar and notice as required under sections 14 and 18 of the Ordinance were served upon the opponent and the admission of Muhammad Ilyas, referred hereinabove, has sufficiently itself proved that actually Mst. Hajra being widow has filed ejectment application as required under section 14 of the Ordinance. This authority has no bearing to the facts of the present case. (2) 1984 CLC 755: In this matter it was held that the landlady became widow during pendency of the appeal, such ground could not be pressed in appeal. The facts on the face of it are not attracted. (3) 1985 SCMR 291: In this case the respondent who was landlord of the premises and was in service of National Bank of Pakistan retired on reaching the age of 60 years on 26-3-1981 and within a period of 6 months before his retirement, as required by section 14(1) of the Ordinance, he informed the appellant that he needs the demised building consisting of the ground floor of a house at Nazimabad, Karachi, in the occupation of the appellant, for personal use and required him to deliver the vacant possession thereof within one month. The appellant failed to comply with the notice, the landlord filed an application under section 14 of the Ordinance. The matter was contested before the Rent Controller but on 12-3-1981 the respondent applied for withdrawal of the case on the ground that "the same in the circumstances is not feasible to proceed and the applicant may be permitted to file the same in proper form". The learned Rent Controller disposed of this application by passing the order in the following terms:-- . "Application disposed of as withdrawn but no order as to cost with permission to file afresh." Thereafter, the landlord filed fresh application for ejectment on the ground that he had retired from service on attaining the age of 60 years, and that previously the applicant was not in need of such premises as he was all along on postings to different places in the interior of Sindh but now on leave preparatory to retirement he came down to Karachi and was constrained to put up with his in?-laws at Karachi. In this background, the matter reached upto the Supreme Court whereas in this case the widow approached in time to the Court after proper notice as required under the law and adduced sufficient evidence which was considered by the Rent Controller and the application was granted. In my humble opinion with all due respect to the authority, the same is not relevant and helpful to the case of the appellant. (4) 1988 CLC 2078: In this matter it was found that the landlord seeking ejectment of tenant on ground of personal bona fide requirement of his jobless sons, neither mentioned in ejectment application names and ages of his sons nor suggested therein as to what business was proposed to be done by his sons in disputed premises. Whereas in this case the application was filed under section 14 of the Ordinance by the widow after the death of her husband. The facts of which are admitted by the appellant in big evidence referred hereinabove. Under the circumstances in my humble opinion this authority in any case is not relevant to the facts of the present case. (5) 1992 CLC 2235: In this matter also the landlord demanded the demised premises for personal bona fide need and the learned Judge of this Court dismissed the appeal whereas in the present matter the application has not been filed for personal need of the landlady but the same was filed under section 14 of the Ordinance by the widow. In my humble opinion this authority is different and distinguishable and is not favourable to the case of the appellant. (6) 1994 SCMR 971: In this case also landlord had sought ejectment of the tenant on the ground of personal bona fide need whereas the present case has been filed by a widow to get possession of the demised premises, therefore, this authority to any case is not applicable to the appellant's case. (7) 1995 CLC 1117: In this matter it was held that best possible evidence to deny payment of rent could be that of landlady herself, but she deliberately did not appear for her evidence whereas in the present matter widow has sought ejectment of the tenant as required under section 14 of the Ordinance. None payment of rent in any case is not pressed or agitated. Attorney of the appellant appeared in the Court and lids produced power of attorney attested by Notary Public. The authorisation of the same has not been shaken in the cross-examination. With due respect the authority in my humble opinion is not applicable to the present case. I would like to refer the provisions of section 14(1) of the Sindh Rented Premises Ordinance, 1979 which reads as under -- "Notwithstanding anything contained in this Ordinance or any other law for the time being in force, 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, may, by notice in writing, inform the tenant that he or she needs the building for personal use and require him to deliver vacant possession of the building within such time as may be specified in the notice, not being earlier than two months from the receipt thereof. Provided that nothing in this subsection shall apply where the landlord has rented out the building after he has retired or attained the age of sixty years or; as the case may be, has become widow of orphan." The admission of the appellant Muhammad Ilyas before the Rent Controller that Mst. Hajra has filed ejectment application who is the widow of Muhammad Soomar and the notices as required under sections 14 and 18 of the Ordinance have also been served and the same have been discussed by the Rent Controller B in his order. Contention of Mr. Muhammad Farooq Hashim that the appellant paid Rs.1,25,000 as 'pugree' is not getting support from the written-statement filed by the appellant/opponent as has been referred hereinabove. The document Exh.A/2 was not mentioned in the written statement and the same was produced subsequently, and the same was challenged by the respondent/landlady in cross-?examination. Mr. Shamdas B. Chhangani, learned counsel for the respondent, has relied upon 1983 CLC 3237, referred hereinabove, wherein it was held that landlady co-owner of rented premises and rest of co-owners authorising her to receive its rent and to get it vacated and use it for her own occupation. The. above ejectment order of the Rent Controller was upheld by my lord B.G.N. Kazi, J. (as he then was) and against this order Civil Appeal No. 142-K of 1991 was filed before the Supreme Court. Their lordships of the Supreme Court also upheld the order of the Rent Controller as well as learned Judge of this Court with the following observation:-- "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." I have gone thought the material placed with the case and I have perused the evidence so recorded by the Rent Controller. I have also minutely given my anxious thought to the authorities referred and discussed hereinabove. Case of the respondent/landlady Mst. Hajra is that she is widow as admitted by C the appellant Muhammad Ilyas in the evidence recorded by the Rent Controller which is referred and discussed hereinabove. The signature of Mst. Hajra on the application and her thumb-impression on the N.I.C. is of no significant in view of the admission of the appellant before the Rent Controller. The power of attorney given by her in favour of her son Muhammad Rafiq son of Muhammad Soomar is perused which is attested by a Notary Public and bears signatures of Mst. Hajra and witnesses alongwith death certificate. The notice as required under sections 14 and 18 of the Ordinance has also been filed and adduced in evidence. Evidence of Muhammad Rafiq, son and attorney of Mst. Hajra has gone unchallenged. The contention of learned counsel for the appellant is that the appellant has paid Rs.1,25,000 as 'Pugree' to the Thekedar. This amount is C not mentioned in the written statement filed by the appellant as opponent in this case, which has been referred hereinabove. The document has been challenged by the appellant and they alleged that it is a fabricated document. None mention of amount of Rs.1,25,000 in the written statement clearly shows that this document has .been produced later on as to create defence in the matter. In any case, it has been held that payment of pugree is not a legal transaction which cannot be given protection at all. Learned Rent Controller after discussing the evidence has rightly allowed the ejectment application. In view of the facts, circumstances and case laws, I am of the considered opinion that the appeal deserves to be dismissed which is hereby dismissed with no order as to costs. The appellant is required to hand over the vacant and peaceful possession of the premises in question to the respondent/landlady within a period of four months from 24-11-1997 the date of hearing. After hearing the learned counsel for the parties on 24-11-1997 the appeal was dismissed by short order. Above are the reasons for the same. A.A./G-48/K ????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.