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Before Naimuddin, C J
Mst. AISHA BI‑‑Appellant
versus
Widow of MUHAMMAD AHMED and another‑‑Respondents
First Rent Appeal No. 419 of 1987, decided on 4th May, 1987.
Cantonments Rent Restriction Act (XI of 1963)‑‑‑‑Ss. 17‑A & .23(1)‑‑Right to seek‑‑Ejectment of tenant‑‑Application from widow under S. 17‑A‑‑Maintainability of‑‑Right to apply for eviction of tenant has been conferred on a widow of deceased landlord of premises on his death under S. 17‑A of Act XI of 1963 and not on a widow who herself was "landlord" of that premises‑‑Widow herself being landlord of disputed premises, held, could not avail of benefit of section 17‑A on death of her husband who himself was not landlord of such premises‑‑ Ejectment application filed by widow being not maintainable was rightly dismissed by Rent Controller in circumstances.
Kamal Afreen v. Mansoor Muhammad Qureshi P L D 1983 Kar. 598 ref.
Muhammad Hashim Khan for Appellant.
This is an appeal under Section 23 (1) of the Cantonments Rent Restriction Act, 1963 (hereinafter called the Act). The appellant who is a lady and landlord of premises bearing No. CB/43/13‑A (Old No.178‑B), Gali No.8, Delhi Colony, Karachi, filed an application under Section 17‑A of the Act hearing No. 35 of 1986 for eviction of the respondent from the premises on the ground that she has become widow on the expiry of her husband on 14‑2‑1982.
2. The Additional Controller of Rents, Clifton Cantonment by the short order, dated 17th March, 1987, dismissed the application, holding the same not maintainable for the reason that the appellant herself was the landlord and not her husband, and therefore, she could not avail of the benefit of the provisions of Section 17‑A of the Act. He observed that "in, the instant case neither the landlord has died nor the widow is claiming the disputed premises left behind by her deceased husband".
3. Aggrieved by this order, the appellant 'has filed this appeal as stated before.
4. I have heard Mr. Muhammad Hashim Khan, advocate for the appellant. He submits that the order is not in accordance with the provisions of Section 17‑A of the. Act. It would, therefore, be convenient if, I quote the provisions of Section 17‑A of the Act, which read as follows:‑---
"17‑A.‑‑Eviction of tenants where the landlord is a salaried employee, widow or minor orphan.
(1) Notwithstanding anything contained In this Act or any other law for time being in force.‑--
(a) in a case where the landlord has died, or (b) in a case where the landlord is a salaried employee and has retired or is due to retire within a period of six months, a notice in writing may be given by such landlord or the widow or minor child of the deceased landlord, as the case may be, to the tenant of residential building informing him that he or she needs the building for personal use and requiring him to deliver vacant possession of the building within a period of two months from the date of receipt of the notice".
PROVIDED..................................
5. A perusal of the above section shows that the right given thereunder can be availed of by the widow or minor children of the deceased landlord (1) where the landlord has died, (b) by the landlord who is a salaried employee and has retired or is due to retire within a period of six months. In the present case, the appellant is admittedly landlady and her husband, who died, was not the landlord of the premises, so that she could avail of the benefit of Section 17‑A Clause (1) of the Act. The definition of the Landlord as given in Section 3 (2) of the Act also does not include the husband of the landlady by such designation. I may quote here the definition of "landlord" which reads as follows:
"Landlord" means any person for the time being entitled to receive rent in respect of any building whether on his own account or on behalf or for the benefit of any other person, or as a trustee, guardian, receiver and includes a tenant who, being authorised under the terms of his lease so to do, sublets the building and every other person for the time being deriving title from the landlord."
6. Since husband was not landlord in accordance with the definitions, I am therefore, clearly of the view that the appellant had no right under Section 17‑A of the Act. I am further fortified in my view by the consideration of the provisions of sub‑section (2) of Section 17‑A of the Act, which provides that "the right to seek ejectment under sub‑section (1) shall also be available to a landlord of a residential building who is the wife, husband or a minor child of a salaried employee referred to in sub‑section (1)". No such provision is made in respect of a person, who is the husband of the landlord and not landlord himself and who has died.
7. Mr. Muhammad Hashim Khan, however has referred to sub‑section (3) of Section 17‑A of the Act, which provides that "in the case of landlord referred to in sub‑section (1) or sub‑section (2) who happens to be a landlord of more than one residential building, whether or not in the same locality, action as provided for in this section shall be competent in respect of one of such residential building only". So far as reference to sub‑section (3) is concerned, it would suffice to say that it is irrelevant', for by this provision a restriction is imposed on the landlord ,to apply only for vacation of one of the residential buildings, where he is owner of more than one residential buildings. Mr. Muhammad Hashim Khan then cited the case of Kamal Afreen v. Mansoor Muhammad Qureshi (PLD 1983 Karachi 598) in support of the contention that, where a husband dies, though he may not be landlord, his widow though a landlord could still apply for eviction of the tenant, I am afraid the case cited does not lay down so far in that case the facts were that the appellant Kamal Afreen had become widow in May 1975, and she purchased the property in dispute in 1977. An objection was raised that the application under Section 14 of the Sind Rented Premises Ordinance (XVII of 1979) was not maintainable, because she became landlord two years after becoming the widow. The Controller decided this objection in her favour. In appeal, when this objection was reiterated it was rejected for reasons with which I am not in agreement), and it was observed as follows:‑---
"It is admitted position, that learned Rent Controller has dismissed the appellant's application on two legal grounds only, while rejecting all other contentions, which were raised by the respondent in his written statement and evidence produced, in support of his stand. Since respondent did not file any appeal against the findings of the learned Rent Controller given against him in the impugned judgment, the same cannot be agitated in the above appeal, by respondent".
8. It is therefore, obvious that the High Court did not decide that the landlord, who becomes widow, can apply for eviction of the tenant on the death of her husband, who was not the landlord of the premises. In my view the right is given to the widow of landlord to apply under section 17‑A of the Act for eviction of the tenant on his death and not to a landlord on the death of her husband. I therefore, find no substance in this appeal and dismiss it in limine.
H.B.T./A‑86/K Appeal dismissed
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