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First Regular Appeal No. 699 of 1981 and First Regular Appeal No 4 of 1982, decided on 28th March, 1982.
-- S. 14 read with S. 2(f)-Ejectment-Appeal against-Landlord and tenant-Tenant in pleadings admitting status of applicant as landlady/ owner of property in dispute-Held, debarred from raising plea to that effect at appellate stage.
Moeen Afridi v. Capt. M. R. Choudhry 1982 C L C 1116 ref.
---S. 14(1)-Words "landlady of a building who is a widow"-Held, indicate that applicant should be widow at time of filing rent case under S. 14-Intention of provision of S. 14(1)-To provide an expedi tious remedy to a widow or minor or person attaining age of 60 years-Widow purchasing a property after becoming widow from a stranger-Held, cannot press into service provision of S. 14.
--S. 14-Application for ejectment by widow-Tenements in dispute not let out by landlady after becoming widow-Factum that she might have let out some other tenements in same building-Held, not relevant for purposes of S. 14 in circumstances of case.
Mumtazuddin Ahmed v. Mst. Sultan Jahan Begum P L D 1981 Kar. 329 and C. P. S. L. A. No. 34 of 1981 ref.
Abbas Ahmed for Appellant.
Mian Mushtaq Ahmed for Respondent.
Date of hearing : 28th March, 1982.
Since these two appeals involve common question of law, I intend to dispose of the same by this common judgment.
The brief facts leading to the filing of the above two appeals are that the respondent filed applications under section 14 of the Sind Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance), against the present appellants who are in occupation of 2 tenements out of the total four tenements, which form a residential bunglow i.e. appellant in F. R. A. 699/81 is in possession of a tenement on the ground floor, whereas the appellant in the other appeal is in occupation of a tenement on the first floor, on the ground that she is a widow landlady within the purview of section 14 of the Ordinance. The above 2 applications were resisted by the present appellants and, inter alia, it was pleaded that the respondent had filed proceeding before the Martial Law Authorities in 1977 under M. L. O. 20, which proceeding failed and that thereafter filed rent case in the Court of 10th Senior Civil Judge. In support of the rent applications the respondent examined 2 witnesses, namely, P. W. 1 Abdul Hameed, attorney of the respondent and P. W. 2 Muhammad Amin Sardar, son of the respondent whereas the appellants examined themselves. The learned Rent Controller vide his order dated 29-11-1981 on the basis of the evidence and after hearing -the parties allowed the above applications on the ground that the respondent was a widow landlady within the purview of section 14 of the Ordinance and that she had served the requisite notice before filing of the above cases. The appellants being aggrieved by the above order have filed the present appeals.
2. In support of the above appeals Mr. Abbas Ahmed, learned counsel for the appellants, has male the following submissions :-
(i) That the respondent being one of the legal heirs of late Choudhry Sardar Muhammad was not entitled to press into service the provision of section 14 of the Ordinance;
(ii) That in order to invoke section 14 of the Ordinance the respondent should have been the landlady before becoming the widow.
(iii) That in fact the respondent rented out two flats in the same building after becoming a widow and, therefore, by virtue of proviso (1) to section 14 of the Ordinance the respondent's above applications were not competent.
3. On the other hand Mr. Mian Mushtaq Ahmed, learned counsel for the respondent has urged the following points:
(i) That the appellants having admitted the contents of paras. I and 2 of the applications are not entitled to urge that the respondent is not a landlady for the purpose of filing the above rent applications;
(ii) That in order to press into service section 14(1) of the Ordinance what is required is that the landlady should be a widow at the time of filing of the rent case.
(iii) That since the respondent had not let out the tenements in question after becoming the widow the proviso of section 14 (1) is not applicable.
4. With reference to the first contention of the learned counsel for the parties, it may be pertinent to quote hereinbelow paras. 1 and 2 of the rent application and para. I of the written statement, which read as follows
"Application.-(1) That the applicant is the owner/landlady of building bearing No. 216-F/2, PECH Society, Karachi and the opponent is the tenant of the applicant in respect of a tenement on ground floor of the aforesaid building at monthly rent of Rs. 260 per month, including Rs. 10 for water charges;
(2) That the opponent is in occupation of the rented premises long before the death of the applicant's husband late Ch. Sardar Muhammad, who died in January, 1973."
"(1) Written statement.-Paras. 1 and 2 of the application are not denied."
It may be noticed that the respondent in the above quoted para. 1 of the rent application had averred that she was the owner/landlady which factum was not denied by the applicants. However, it has been urged by Mr. Abbas Ahmed that on the basis of Misc. Applications Nos. 671/82 and 730/82 filed in Appeals Nos. 699/81 and 4/82 respectively on 1I-3-1982 and 21-3-1982 respectively that factually she was one of the legal heirs of late Ch. Sardar Muhammad and is not executive observed that the above two applications are fixed for orders today in Court and not for hearing. Alongwith the above applications, inter alia, certified copies of the rent applications filed by the respondent under section 15 of the Ordinance have been filed in which respondent is one of the applicants alongwith her 4 sons. It has been urged by Mr. Abbas that since in view of the above certified copies, it is an admitted position that the respondent is one of the legal heirs of Ch. Sardar Muhammad and, therefore, she was not entitled to invoke section 14 of the Ordinance. On the other hand it has been vehemently urged by Mian Mushtaq that since in the pleadings quoted hereinabove the appellants admitted the factum that the respondent was the owner/landlady, this question cannot be allowed to be raised in the first appeal. He has also referred to the statement of the appellant in FRA 699/81 in which the appellant admitted that after the death of the respondent's husband her attorney was realising the rent. Reliance has been placed on the case of Moeen Afridi v. Capt. M. R. Choudhry (1982 C L C 1116), in which Naimuddin, J. has observed as follows :-
"Even otherwise, if the respondent was not the owner of the premises, he was authorised and entitled to receive the rent which fact cannot be disputed for the appellant had been paying rent to him by cheques drawn in his name. Accordingly, within the meaning of section 2, clause (f) of the Ordinance, the respondent was the landlord."
It may be observed that in the above-cited case also an application under section 14 of the Ordinance was filed by the respondent on the ground that ha was going to be retired from service.
5. In my view the fact that the appellants have admitted the contents of para. 1 of the rent applications debars them from raising the plea at the appellate stage that the respondent is not the landlady. In this view of the matter this ground fails.
6. With reference to the second contention of Mr. Abbas that in order to press into service section 14 of the Ordinance; it is incumbent that a landlady should be the landlady before becoming a widow, it may be pertinent to refer to subsection (1) of section 14 of the Ordinance, which reads as follows :--
"(1) 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 in 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 or orphan).
It may be noticed that the words used in the above-quoted subsection are "the landlord of a building who is a widow or a minor"'. The above words indicate that in order to attract the above provision, the applicant should be a widow at the time of filing of the rent case under section 14 of the Ordinance. However, it was urged by Mr. Abbas Ahmed that if these words are to be read with the proviso to the above subsection, it will be' evident that the landlady should own the building before she becomes a widow. I am unable to agree with the above contention of the learned counsel as to the words used are landlady, of a building who is a widow.' The intention of subsection (1) of section 14 seems to provide an expeditious remedy to a widow or minor who has become an orphan or a person who has to attain the age of 60 years or is to retire within the next six months or has already attained the age of 60 years or has retired. A widow on the death of her husband becomes a widow and simultaneously also becomes a landlady by virtue of inheritance. A cause of action accrues to her for filing of an application under section 14 of the Ordinance on the death of her husband in the capacity of a widow. However, a widow cannot press into service provision of section 14 of the Ordinance, if she purchases a property after becoming a widow from a stranger. In other words a widow cannot create a cause of action in her favour under section 14 by purchasing a property after she has become widow.
7. Reverting to the last contention of Mr. Abbas Ahmed that since the respondent had let out 2 flats after she had become widow, it may be pertinent to refer to the case of Mumtazuddin Ahmed v. Mst. Sultan Jahan Begun (P L D 1981 Kar. 329), in which the very argument was advanced before me which was dealt with by me in the following words :-
"With reference to the contention that the respondent after attaining the age of 60 years had let out one of the flats to Mr. Mansoor Maqbool, it may be observed that no such plea was raised before the Rent Controller. However, it was contended by Mr. Alvi that this was not raised because of the short time available to the appellant for filing the objections. Be that as it may, it may be stated that the learned counsel for the respondent before me had not disputed the factum that in fact one of the flats was let out to Mr. Mansoor Maqbool in 1974. However, his contention was that since the flat in question was not let out to the appellant after the respondent had attained the age of 60 years, the fact that one of the flats was let out in 1974 would not debar the respondent from filing an application under section 14 of the Ordinance. In support of the above contention Mr. Malik has invited my attention to the words "the building" used in section 14. It may be observed that section 2(a) defines the term "building" as means "any building or part thereof" and therefore the flat can be "the building" within the purview of section 14. I am, therefore, inclined to agree with the learned counsel for the respondent that the bar contained in proviso to sub section (1) of section 14 of the Ordinance is relatable to the building which is the subject-matter of an application under section 14. In other words if the respondent would have let out the flat in question to the appellant after attaining the age of 60 years she would not have been entitled to press into service section 14, but since admittedly the flat in question was let out in 1972 and whereas the respondent bad attained the age of 60 years in, 1973, in my view the bar provided in the above proviso cannot be pressed into service."
It may be observed that the above judgment was upheld by the Supreme Court while declining to grant leave to appeal in petition No. CPSLA No. 34 of 1981. In this view of the matter as admittedly the two tenements in question were not let out by the respondent after becoming the widow, the factum that she might have let out some other tenements in the same building would not be relevant for the purpose of section 14 of the Ordinance.
8. For the aforesaid reasons I dismiss the above two appeals but allow 4 months time to the appellants from today to vacate the tenements on the condition that the appellants shall continue to deposit monthly rent and in case they would make default the respondent shall be entitled to file execution applications before the expiry of above 4 months. Furthermore, in case the appellants fail to vacate the tenements in question on the expiry of above 4 months period, the Rent Controller shall issue writs of ejectment without further notice to the appellants,
S. Q. Appeal dismissed.
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