1986 PLP 354 (CLC)

4. However, Rent Case No. 3068 of 1981, from which the present appeal has arisen, Was filed by the two respondents against the two appellants and six others who are successors‑in‑interest of one Mahmood Mustafa Abbasi to whom the ground floor of the house in question was rented. It was averred by the respondents, that respondent Hameeda Khatoon had attained the age of sixty years and that respondent Razia Iqbal had become a widow as her husband Yaqoob Alam had died on 18‑2‑1978. It was further averred by them that the premises in question were required by them for their personal use and occupation as they were not in occupation of any other building owned by them. It was also averred that the two respondent were living together in a Government quarter which had been allotted to Yaqoob Alam, the late husband of the respondent No. 2 and after the former's death the quarter was being temporarily occupied by the respondents who were under constant pressure from the Government to vacate the quarter. According to the respondents, requisite notice under section 14 of the Ordinance had been served on the appellants‑ but despite that the appellants, had failed to vacate the premises in question. Under such circumstances the application before the Rent Controller was filed. This application was defended only by the appellants as rest of the opponents did not file any written statement.

5. Another significant fact which needs to be noted is that Khursheed Alam, the son of the respondent No. 1, who died during the pendency of this appeal owned a house in Landhi which has now been inherited by the two respondents alongwith other legal heirs of Khursheed Alam.

6. Before this Court, it was not disputed that the respondent No.l had attained the age of sixty years or that the respondent No. 2 had become a widow. However it was disputed that the respondents were temporarily residing in a Government quarter and were under constant pressure to vacate such quarter as claimed by them. The appellants, however, have failed to produce any evidence worth considering before the Rent Controller, to rebut the respondents' assertion in this respect. The only witness examined by the appellants before the Rent Controller, namely Badruddin, was not able to rebut the evidence of either the two respondents or their witness Khursheed Alam on the point.

7. The first point urged by Mr. Khursheed Anwar Shaikh was, that since the appeal (No. F.R.A. 587 of 1981) filed by the respondents in. this Court against the order of the Controller in Case No. 121 of 1981 has been allowed in favour of one of the respondents and eviction of the tenant in that case has been ordered: by this Court, the instant appeal has become infructuous. The learned counsel, in that, was obviously referring to subsection (2) of section 14 of the Ordinance.

8. Now, admittedly, the Supreme Court has granted leave to appeal against the judgment of this Court in F.R.A. No. 587 of 1981 and stay has been granted by the Supreme Court in favour of the tenant in that case. Since the possession of the first floor is not yet with the respondents, therefore, I see no reason why this appeal should become infructuous. Subsection (2) of section 14 of the Ordinance disqualifies a landlord‑ to avail the benefit of section 14(1) only in such cases where the landlord of a building is in occupation thereof. Since the respondents are not in occupation as yet of the premises on the first floor owing to the stay granted by the Supreme Court, they cannot be deprived of the benefit of section 14(1) of the Ordinance. This argument, therefore, cannot be accepted.

9. The next contention of Mr. Khursheed Anwar Shaikh was that Khursheed Alam, the son of the respondent No. 1 and the brother‑in‑law of the respondent No. 2, who died during the pendency of this appeal, owned a house in Landhi which the respondents have now inherited as his legal representatives. The learned counsel therefore, contended that since the two respondents have now inherited another property after the death of Khrusheed Alam, the said respondents would not be entitled to get the benefit of section 14(1) of the Ordinance.

10. This argument must also fail for the same reasons since there is evidence that the two respondents are in occupation of no other property, except for the Government quarter allotted to Yaqoob Alam which they are still occupying, The provisions of subsection (2) of section 14 of the Ordinance are, therefore, not attracted at all. The respondents might have acquired a share in the property owned by Khursheed Alam, after his death, but unless it is shown that they are also in occupation of such property, the benefit of section 14(1) of the Ordinance would still be available to them.

11. The next question raised by Mr. Khursheed Anwar Shaikh was that the share of the two respondents in the property in question was very small, since they were not the exclusive owners thereof. The learned counsel, therefore, contended that the respondents were not competent to institute the case against the appellants without joining the other co‑owners or in absence of authority from them.

12. In order to appreciate this argument it is necessary to refer to the definition of "landlord" in section 2(f) of the Ordinance, "Landlord" according to that section means "the owner of the premises and includes a person who is for the time being authorised or entitled to receive rent in respect of such premises". This definition shows that even a person who has a small share in a particular property can fall within the definition of "landlord" being a co‑owner of such property. It can not be said that only a person with substantial share in the property can be called owner of such property and a person with small share cannot. It was, however, not contended by the learned counsel that a person who only has a share in the property is to be excluded from the definition of landlord. The argument of the learned counsel was that such person with limited share in the property must get authority from the other co‑owners before filing an application for ejectment of a tenant. If the position such as that convassed by the learned counsel was contemplated by the legislature, than I am sure, words to that effect would have found mention in section 14 of the Ordinance. The plain reading of subsection (1) of section 14 shows that a landlord of building, if he is any of the persons mentioned in that subsection, may by a notice in writing inform the tenant that he requires the building for personal use and require him to deliver vacant possession of such building to him. Since it is not disputed that the two respondents fall within the definition of the term "landlord" contained in section 2(f) of the Ordinance, they were competent to apply under subsection (1) of section 14 and in such a case requirement of permission from the other co‑owners of the property was not necessary. Mr. Khalid Latif the learned counsel for the respondents has referred to a number of reported cases on the point.

13. In Mst. Saffia Bai v. Abdul Sattar P L D 1983 Kar. 419, where a similar question has arisen, it was held: "The next finding of the learned Rent Controller, that appellant's ejectment application was also not maintainable as appellant is not the full owner of property in question, also cannot be sustained. In this connection, wording of section 14(1) of the Ordinance, 1979, does not lay down any such condition nor the said section should be so interpreted. If this was the intention of the legislature it would have been clearly mentioned, that widow, who becomes sole owner of the property, alone could move application under section 14(1) of the said Ordinance. In present case it may further be noted that all the legal heirs of the original deceased owner, withdrew ejectment application No. R.C. 4008 of 1978, after filing of present ejectment application, by the appellant, which shows, that all other legal heirs have no objection to filing of present application, by appellant. Hon'ble Supreme Court in case reported in 1981 S C M R 193; has held, that joint owner is competent to file ejectment application against tenant and as such I see no force in this finding of the learned Rent Controller." The same view was re‑affirmed in Rajab Ali v. Darius Kandawalla and another P L D 1984 Kar. 14 which was also decided by this Court. In another case reported as Muhammad Ali v. Mst. Hameeda Begum 1983 CLC 3237, also decided by this Court, it was held that since under the Ordinance the word landlord had been defined and since the same word had been used in section 14 of the Ordinance, therefore, a person who was co‑owner of property was fully qualified to avail the benefit of the said section and file application for ejectment of the tenant, although in that case the other co‑owners of the property had authorised the applicant in that case to institute ejectment proceedings on their behalf which has not been done in the instant case. But that is hardly a factor which should stand as a hurdle in the respondents' way. Since a co‑owner of property can institute proceedings under section 14(1) of the Ordinance and section 14(1) of the Ordinance does not impose such condition on a co‑owner of property to seek authorisation from the other co‑owners, an application under section 14(1) would be) competent without concurrence of other co‑owners. What is essential ID under section 14(1) is the requirement of a building for personal use by the landlord of such building. If one or some of the co‑owners of such building require the same for personal use then they cannot be deprived of the benefit under section 14(1) merely because the other co‑owners are not jointly seeking the same benefit with them or have not authorised them to file an application before the Rent Controller. Mr. Khalid Latif also placed reliance on Sardar Begum v. Mst. Hasina Jan 1983 C L C 3258 and Muhammad Siddiq Mazhari v. Zahoor Ahmad 1984 CLC 3076, wherein similar views have been expressed. In another case decided by the Supreme Court and reported as Khalique Ahmed v. Abdul Ghani and another P L D 1973 S C 214 the following observation were made by the Supreme Court and I quote with respect: "A suit for possession can be brought by all the co‑owners jointly. It is open, however, to one of them also to sue for possession, but he must join the other co‑owners as defendants and the decree will be for joint possession and not in favour of the plaintiff only. Unlike, that a suit for ejectment can be filed by one of the co‑owners without joining the others as defendants. This is the difference between an action for possession and an action for ejectment." It may be pointed out here, that the applicant in the case decided by the Supreme Court had not been authorised by the other co‑owners to l, file ejectment application. The objection of the learned counsel for the appellant under such circumstances, cannot be sustained.

14. The next argument of Mr. Khursheed Anwar Shaikh was to the effect that since Khursheed Alam, the son of the respondent No. 2 who died during the pendency of the instant appeal, was owner of a for house in Landhi, and was in occupation thereof, at the time when the No ejectment application was filed before the Rent Controller, therefore, for the respondents come within the mischief of subsection (2) of section 14 of the Ordinance. What the counsel meant was, that if there are cal more than one owners of a property then disentitlement of anyone of them to seek relief under section 14(1) would mean disentitlement of 'the rest of them.

15. Section 14 as earlier said, disentitles a landlord to avail the benefit of subsection (1) of section 14 only if such landlord is in occupation of a building owned by him in any locality. The purpose of section 14 is to provide special benefit to certain persons named in that section such as, widows, orphans, salaried employees who have either retired or are due for retirement and such persons who have attained or are due to attain the age of sixty years. Any of such persons, notwithstanding the fact that he has only a share in the property, can apply under section 14(1) of the Ordinance. Since the legislature seems to have granted a special privilege to such persons it is inconceiveable that they would be deprived of such privilege merely because another person who jointly owns with them another property, is in occupation thereof. Since a co‑owner of property is also its landlord according to the definition of the word in the Ordinance and the word "landlord" has been used both in subsection (1) and subsection (2) of section 14 of the Ordinance, obviously section 14(2) would come into play only when such co‑owner of the property making application under section 14(1) is himself in occupation of another building owned by him.

16. In view of the aforesaid I do not find any merit in this appeal and hence the same is dismissed with no orders as to costs. However, I grant two months' time from today to the appellants to hand over vacant possession to the respondents. A.A. Appeal dismissed