1983 PLP 3237 (CLC)

1. The premises bearing No. 42 Muslimabad, Karachi was owned by late Pit Muhammad Nawaz, deceased/husband of the respondent and the appellant was a tenant in respect of the aforesaid premises on a monthly rent of Rs. 450.

2. Pit Muhammad Nawaz expired on 17th June, 1980 leaving behind the f9spondent his widow, Pir Mansoor Ahmed Pit Mushtaq Ahmed and Pit Khalil Ahmad his sons and Mrs. Noor Jehan his daughter. The respondent filed application under section 14 of the Ordinance on 15‑12‑1980 stating that had served the appellant tenant with notice as required under section 118 of the Ordinance. As she was residing in her native village but desired 1 to live in the permises in question as all her sons her daughters were living outside her village and there was no one to look after her. It was her case.‑ that she and her sons did not own any other house except the one in disptute which was in occupation of the appellant as tenant. After service of notices under section 18 and section 14 of the Ordinance, the appellant had fabled to vacate the premises or even to pay rent to her and, therefore, she had been put to necessity of filing the application for eviction of the appellant in a summary manner under section 14 of the Ordinance.

3. The appellant in his written statement admitted the tenancy and the rate of rent. He also admitted that the previous owner and landlord namely Pir Muhammad Nawaz had died and his legal heirs as mentioned in the application had become owners of the house in dispute. However, he raised the plea that Pir Muhammad Nawaz did not die on 17‑6‑1980 as stated by respondent in her application but according to information received by him, he died more than six months prior to the institution of the application. He disputed the certificate of the Chairman Union Council as not being a public document and prayed that the respondent/applicant be put to strict proof of the date of death of her husband. With regard to the require ment for personal use he stated that the respondent was residing in the ancestral house of her deceased husband in Pirjo Goth, District Dadu which is a very spacious house and is more than sufficient for the entire family of the respondent. He denied that Pir Khalil Ahmed was residing in a rented house and took the plea that he was in fact residing in a very spacious house in Pir Illahi Bakhsh Colony which was owned by his grand‑father late Pir Illahi Bakhsh and is now owned by his heirs including Pir Kalil Ahmad.

4. The appellant also raised the plea that the respondent had no right to seek ejectment of the tenant as the other co‑owners could not delegate such authority to her. He alleged mala fides, on the ground that rent was being regularly deposited in the Court in Rent Case No. 4328 of 1975 and, therefore, he could not tender rent directly to the respondent as he had not received any intimation from the other heirs to pay the rent to the respondent. The appellant took the further plea that the house in dispute was rented out to him by late Pir Muhammad Nawaz in 1963 on a rent of Rs. 450 and during the last 17 years rents in the locality bad gradually risen about four fold. Pir Khalil Ahmed, son of the respondent who resided in Karachi used to collect rent of the house on behalf of his father as his attorney during his life time. Since 1967 he had been pressing the appellant to increase the rent but since his demand was very exorbitant, the appellant did not agree to the demand. After his refusal Pir Khalil Ahmad and his father started harassing him in order to coerce him to agree to these unreasonably demand or vacation of the house so that they could let out the same to some other party on enhanced rent. Pir Khalil Ahmad as attorney of his late father filed an ejectment case against the appellant in 1967 on the ground of default in the payment of rent but the case was ultimately dismissed because the appellant had not committed any default. Then he filed another ejectment case being Rent Case No. 1080 of 1973 against the appellant on the alleged ground of personal requirement. That case too was dismissed and the appeal filed was also dismissed. Since there was no chances even in second appeal Pir Muhammad Nawaz filed a third coo for ejectment of the appellant, being Rent Case No. 4328 of 1975, again, on alleged ground of personal require ment. The aforesaid case was also dismissed on 28‑1‑1980 and after that the instant case of ejectment had been filed with the same motive of getting enhanced rent. He also took the plea that the application for his ejectment had been filed more than six months after she became a widow and that since she owns only 1/8th share in the premises, provision of section 14 of the Ordinance did not apply in her case, as a widow cannot avail of the special provision for the benefit of her co‑owners.

5. The learned Controller settled the only issue as to whether the applicant (respondent herein) is entitled to avail of the benefit under section 14 of the Ordinance and he decided the issue in favour of the respondent in his impugned order already referred to.

6. Mr. Munawar Abbas, the learned Advocate for the appellant has raised the following contentions.:‑ (1) That the respondent herself did not enter the witness‑box. (2) That the notice dated 12‑10‑1980 was not in accordance with the provisions of section 14 (1) of the Ordinance. (3) That the application under section 14 aforesaid for ejectment was, therefore, premature. (4) That the bar of section 14 (2) of the Ordinance applied as the respondent was in occupation of a building at Pirjo Goth and finally, that the respondent failed to show that she required the premises in good faith for her own use.

7. With regard to contention No. I above it is admitted fact that the respondent is an old lady not used to appearance in the public and that her son Pir Khalil Ahmad was her duly appointed attorney. Mr. Munawar Abbas, the learned counsel for the appellant relied upon the decision of this Court in Muhammad Younus v. Dr. S. Muzamil Ali 1981 C L C 327, where it. was inter alias observed that "one of the material evidence for considering the question as to whether the landlord requires the premises in good faith bona fide or not would be the landlord's statement on oath before the Rent Controller." However, after reviewing the case‑law the principle deduced in this respect was as under:‑‑ "If a landlord without any plausible reason fails to appear as witness before Rent Controller in support of his application for ejectment on ground of personal requirement in good 'faith, this will be fatal to his application." In the instant case however, the aforesaid principle is not applicable because the landlady is an old lady who is parda Nasheen and does no` ordinarily appear in public and her son who knew the full facts of the case therefore, appeared in the witness‑box on her behalf. A perusal of the record of proceedings before the learned Controller shows that on behalf of the appellant Pir Khalil Ahmad, attorney of the respondent was cross‑examined at length. In the general power of attorney executed by her in favour of her son she had stated that she being an aged purda nasheen house, hold lady residing at a far off place from Karachi was not personally able appear in Court to prosecute the case properly and effectively. The aforesaid reasons are plausible and it is apparent that no prejudice was caused to the appellant by the respondent not entering the witness‑box.

8. At the outset before considering the other contentions raised by Mr. Munawar Abbas, the learned counsel for the appellant, it is observed 'that it was argued before this Court and also before the Controller, as is apparent from the very impugned order, that the respondent being only a co‑owner of the premises in dispute was not competent to make application under section 14 of the Ordinance which applies only in case the landlord is sole owner of the property. A perusal of definition of "landlord" in section 2 of the Sind Urban Rent Restriction Ordinance, 1959 and in Section 2 (f) of the Sind Rented Premises Ordinance, 1979, would show that the word `landlord' has been defined to mean the owner of the premises and also includes a person who is for the time being authorised or entitled to receive rent in respect of such premises. A perusal of the record of proceedings before the Controller, would show that not only the respondent is co‑owner of the house in question, but the rest of the co‑owners namely her three sons and her daughter haul given her authorisation to receive rent and also to deal with matters relatin to the premises including that of getting it vacated and to use it for her own occupation etc, It may here be observed that under the Ordinance the respondent is, therefore, landlord (as defined therein) and since the word used in section 14 of the Ordinance is the same, the respondent was fully‑qualified to the benefit of the aforesaid section and to file the application for ejectment of the tenant. Reliance in this respect is placed on a decision the Supreme Court Khaligue Ahmad v. Abdul Ghani and another P L D 1973 S C 214 in which 'it was inter alia held that suit for ejectment by one co‑owner without joining 'other co‑owners was competent. Similarly in a decision of the Lahore High Court Ghulam Sadig v. Zainab Bibi P ‑L D 1979‑Lah. 360, it was inter alia held that application for eviction can be made by one of several owners and/or landlords. In the instant case although it may be argued that application is for vacant posses sion of the building for the use of the respondent and not only for ejectment of the tenant, a reference has been made to the authorization which is on record of the proceedings to show that the respondent having been authorised to receive rent in respect of the premises comes under the definition "landlord" not only as a co‑owner of the property but also as a person who has been authorised to receive rent in respect of it.

9. With regard to contention No. 2, section 14 of the Ordinance ‑provides for notice in writing requiring the tenant to deliver vacant possession of building, "within such time as may be specified in the notice, not being earlier than two months from the receipt thereof." The notice dated 11th October, 1980 was about the change of proprietors and the fact that the respondent had been authorised to receive rent and notice dated 12th October, 1‑980 was to the effect that the appellant should vacate the premises "on the expiry of two months" from the date of the notice. It has been argued that the provision in section 14 is of notice of two months from the date of receipt of notice and, therefore, the notice given was not sufficient and in accordance with the law.

10. It is further contended ‑(contention No. 3) that since the appellant was at that time in Dubai and actually received the notice on 20‑10‑1980, the application for ejectment having been filed on 15‑12‑1980 was premature. The question about insufficiency of notices was considered and discussed in a decision of this Court Wali Muhammad v. Mrs. Hameeda P L D 1981 Kar. 794 wherein it was inter alia observed as under,- "It is necessary to state that the above section contemplates service of two months' notice on a tenant by a person falling within the category mentioned therein, namely, widow, orphan or a person, who has retired from the service, or has attained the‑ age of 60 years. In the "'instant case the notice was served on or about 31‑1‑1980, whereas the ejectment case was filed on 2-3‑1980, i. e. much before the expiry of two months. Furthermore, in the notice the appellants were called upon to vacate forthwith instead of on the expiry of two months. However, in the written statement the appellants had not raised any M specific plea to the effect that a valid notice under section 14 of the Ordinance was not served on them before the filing of rent application. It is also clear that section 14 of the Ordinance seems to provide an expeditious summary remedy to a widow/orphan, to a person, who has retired from the service or who has attained the age of 60 years. If technicalities are to be strictly enforced, the very object of the above provision will be frustrated. I am inclined to hold that the Court is to see, whether there has been substantial compliance of the above section. The spirit of section 14, seems to be that a tenant is to be provided 2 months' period prior to ordering of ejectment summarily fit under the above provision. In the instant case the notice dated 31‑7‑1980 under section 14 was served on or about first week of February, 1980, whereas the ejectment order was passed on 19‑4‑1981 i. e. after the expiry of more than one year. Since the rent case was filed on 2‑3‑1980, the rent Controller could not have passed an ejectment order immediately on receipt of the application for ejectment, as the two months' period had not expired by then. However, during the pendency of the rent application the cause of action matured as admittedly on the date of the passing of the ejectment order, more than one year bad expired from the date of service of the notice and from the date of filing of the ejectment case."

11. Applying the principle laid down in the decision referred to above, in the instant case the application under section 14 of the Ordinance was filed on ~ 15‑12‑1980 and the decision was given ejecting the appellant on 19‑8‑1981 i: e. more than a year. after filing of the application. The contention that the two months' notice had not expired from the receipt of notice and, therefore, the application was premature is also covered by the decision in Wall Muhammad v. Mrs. Hameeda already referred to above. Referent may however, be made to the decision of this Court in Nizamuddin v. Nasiruddin 1980 C L C 831 wherein it was inter alia observed that suit or application even if premature at the time of its institution yet fits cause of action matures by the time when the decision is given, is not to be interfered with on such ground. :

12. With regard to contention No. 4 subsection (2) of section 14 of the Ordinance reads as under:‑ (2) The landlord shall not be entitled to avail the benefit of subsection (1) if he is in occupation of a building owned by him in any locality:" It has been argued that since the Ordinance applies to premises situated within urban areas of the entire province, therefore, the words, "any locality" in subsection (2) mean an Urban area in the entire province. The interpretation of subsection (2) was considered in Ulfat Hameed v. Mrs. Birjis Khatoon P L D 1982 Kar. 823, a decision of this Court, it was inter alia observed as under:‑ " Before an application of the landlord is held to be not maintainable under section 14 (2) of the Ordinance two facts have to be positively proved by the tenant. First it must be shown that the landlord is in actual any physical occupation of another building in any locality o1 the same type and class for which he has applied for eviction of the tenant and secondly the landlord owned such a buildings." In Messrs Construction Services (Pakistan) v. Ali Hussain1982 C L C 1241, a decision of this Court, the words "any locality" were interpreted to mean and to construed with reference to city where tenement in dispute is situated aforesaid interpretation would appear to be the correct one With respect the aforesaid interpretation and moreover the village Pirjo Goth cannot be considered as an urban area.

13. With regard to the final contention, Mr. Munawar Abbas, the learned counsel for the appellant has relied on the decision in Syed Israr Alam v. S. M. Hussain 1983 C L C 464, in which it was inter alia held that " a landlord, when he is projecting his needs, has to subject himself to judicial scrutiny, so that it should be found, whether the needs, that he expresses, are genuine, or, he is wanting more accommodation on account of desire to live in unreasonable luxury, or, a desire to dislodge his tenant." There is reference in the impugned judgment of the learned Controller to the fact that the respondent has no male member of family to look after her in village Pirjo Goth and, therefore, it is her legitimate desire to live in the premises at Karachi where one of her sons Pir Khalil Ahmed resides. With regard to question of bona fides or maladies, in Messrs Construction Services (Pakistan) v. Ali Hussain, a decision of this Court already referred to above it was inter alia held that the ejectment on ground of personal requirement of landlord under section 14 of the Ordinance does not make it necessary for the Rent Controller to go into the question of bona fides and mala fides and in this respect in the aforesaid decision it was pointed out that there was difference in the language employed in sections 14 and 15 of the Ordinance. In Wall Muhammad v. Mrs. Hameeda, a decision of this Court already referred to above also it was held that the question of bona fides cannot be investigated into in an applica tion under section 14 in view of the difference in the language employed in sections 14 and 15 (1) (viii), In view of the circumstances stated and the reasons given above I do not find any weight in this appeal which is dismissed however, with no order as to costs. The appellant is hereby directed to hand over vacant possession of the premises to the respondent within one month of the date of this decision. M. Y. H. Appeal dismissed.