1. ' Appellant abovenamed, being aggrieved by Order, dated 20-12-1981, of the learned IIad Senior Civil Judge and Rent Controller, Karachi, in Rent Case No, 3406/81, by which appellant's application under section 14 of Sind Rented Premises Ordinance, 1979 for ejectment of the respondent was rejected, on the grounds mentioned in the said order, has preferred. The above appeal, on the following facts and grounds :-- ' The appellant Kamal Afreen has alleged in her Rent Case No, 3406/81, that she had become widow in 'May, 1975. That she purchased the property No, 921-C P. E. C. H. S. In 1977 which is consisted of two floors. That the 1st floor is in occupation of one Shakoor Muhammad Qureshi on rent for carrying his Motor Garrage business. That after the death of this Shakoor, his son Mansoor Muhammad (Respondent) has become her tenants @ Rs, 600. That she has got 2 grown up daughters and one grown up son. One of her daughters is married, while other is student of B.Sc.
2. (Hons). That her son Nadeem Rasheed has done his polytechnic Diploma in Auto Mobile Engineering. That her son and herself want to start their work of Motor dealing and Boutique. That she gave a notice under section 14 of S. R. P. Order, 1979 for vacation of the premises within 2 months for her personal requirement to the respondent. It was served on the respondent, but he has failed to vacate the premises in case, hence the Rent Case with the prayer, that the Court may order the respondent to hand over the vacant possession of the ground floor premises to the appellant.
3. ' The respondent's counsel had filed written statement wherein he has alleged, that the application is not maintainable at law against the respondent as he is the minor. That no notice under section 14, S. R. P. Order, 1979 was served on the respondent. That the appellant's case does not fall within the provisions of section 14 of S. R. P.
4. 0., 1979, as she had become widow in 1975, whereas she has become the landlord in 1979 after purchase of the property in 1977, accepting/presuming the respondent as her tenant in the premises in case. That the appellant cannot invoke the provisions of section 14(1) of S. R. P. Order, 1979, as she is already in occupation of the 1st floor building owned by her. That her case is hit by the subsection (2) of section 14 of the S. R. P. Order, 1979. That tbe respondent is a minor and looking after the garrage after the death of his father from 11/80. That all of the heirs of said Shakoor Muhammad have become the tenants of the appellant, who is well aware of the death of the said Shakoor and his heirs. That in respect of rent the heirs of the said Shakoor are depositing rent in the Miscellaneous Rent Case No, 793/81. That the appellant ha.; knowingly and deliberately avoided to bring all the L. Rs, of the said Shakoor on record in this case, though the appellant had received notice in the said Miscellaneous Rent Case filed by all 6 heirs. That the appellant does not require the premises in case for her or her sons business, as her son Nadeem is living at Lahore and doing his independent business, there and that she is earning Rs, 4,000 in service of Glaxo Pak. According to the respondents further plea, she wants to enhance the rent and does not require the premises for her personal use. He had, therefore, pleaded, that the said application is not maintainable in its present form and that it is false, frivolous and vexatious and the same is liable to be dismissed, with compensation tinder section 17 of S. R. F. Order, 1979.
5. ' To prove her case the appellant had filed her affidavit and death certificate of her husband in the Court whereas the respondent had filed affidavit of her mother Mst. Sughra Bibi and School Leaving Certificate of the respondent to rebut the appellant's case and establish her own case.
6. ' Learned Rent Controller, taking into consideration the evidence adduced by the parties before it, dismissed the said ejectment application on the grounds, that all the legal heirs of the original deceased tenant were not joined as party, who were necessary party and that the said application was not maintainable in view of provisions of section 14(2) of the Sind Rented Premises Ordinance, as appellant is in possession of the 1st floor of the building in question.
7. ' The appellant abovenamed being aggrieved by the impugned order of the learned Rent Controller has preferred the above appeal, on the grounds mentioned in the Memo of Appeal.
8. ' The learned Advocate for the appellant in support of the above appeal submitted as under
(a) That rent law does not protect all the legal heirs of the deceased, but only those, who are found to be in actual physical possession of the said premises and consequently since admittedly respondent alone was in physical occupation of the disputed premises and carrying on business it was not at all necessary for the appellant to join all the legal heirs of the deceased tenant, in ejectment application in question.
(b) That provisions of section 14(2) of Sind Rented Premises Ordinance, 1979 did not bar the appellants ejectment application in question. In support of this the learned counsel submitted, that the learned Rent Controller has misinterpreted the said provision, without considering that premises in occupation of appellant were residential, whereas ejectment application was in respect of non-residential premises, needed by appellant for own use.
(c) That age of respondent was not known to appellant but as soon as appellant came to know, that respondent was minor of about 16 years age, she moved application and got his mother appointed as guardian ad litem and as such the ejectment application in question was legally maintainable.
9. ' In support of above contentions, the learned Advocate for the appellant relied upon case reported in PLD 1981 SC 118.
10. ' The learned Advocate appearing for the respondent No, 2, on the other hand submitted, that he was fully supporting the impugned order of the learned Rent Controller as the same is legal and based on cogent reasons. In addition to this, since appellant accepted respondent as her tenant, after the purchase of the building in question, she was not at all entitled to move application under section 14 of Sind Rented Premises Ordinance, 1979, as she was already widow, at that time and her application was barred under section 14(1) Proviso and under section 14(2) of the said Ordinance. In respect of the above contentions, the learned counsel for respondent has relied upon cases reported in PLJ 1975 Lah. 264, PLD 1982 Kar, 89, 1982 CLC 1241 and 1983 CLC 464.
11. ' I have carefully considered the above submissions Invade by the learned Advocates before me and have gone through R & P of the learned trial Court as well as through impugned order and cases cited by the learned Advocates before me.
12. ' It is admitted position, that learned Rent Controller has dismissed the appellant's application on two legal grounds only, while rejecting all other eontentions, 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. In view of this findings of the learned Rent Controller, that appellants' application was maintainable under section 14 of Sind Rented Premises Ordinance, 1979, although she became widow prior to become landlord of the premises in question, and in respect of the fact, that notice as required under section 14(1) of the Sind Rented Premises Ordinance, 1979, was duly served on respondent as well as that notice under section 18 of the Ordinance was not necessary have become final, as respondent has preferred no appeal against the said findings under section 21 of the Ordinance in question.
13. Even on merits, I find these conclusions arrived at by the learned Rent Controller in accordance with the law, as it exists and are based on the evidence on record and, therefore, I see no reasons to disagree with these findings and conclusions arrived at by the learned Rent Controller.
14. ' In view of my above conclusions, the only two points which require consideration in the above appeal are whether ejectment application filed by appellant was rightly dismissed on ground of non-joinder of all the legal heirs of deceased tenant and on account of bar contemplated in section 14(2) of the said Ordinance, as appellant was in occupation of independent unit of said property, admittedly.
15. I find great force in the contention of the learned Advocate for appellant, that it was not necessary for appellant to join all legal heirs of the deceased tenant in the ejectment application in question, in view of the definition of "tenant" as given in section 2( j) (ii) of Sind Rented Premises Ordinance, 1979. It is clear from clause 2(f) (ii) of said Ordinance, that only those legal heirs, who are actually in possession or occupation of the premises after death of the tenant, become statutory tenants. In present case, it is admitted position, that respondent is alone in possession and occupation of the disputed premises, after the death of original tenant. Therefore, the ejectment application in question was maintainable against him and it was not necessary for appellant to join all the legal heirs of deceased tenant, as respondents in the said applications. In view of my this conclusion, I see no reasons to agree with the findings of the learned Rent Controller in this connection.
16. ' As far as bar contain in sections 14(2) of Sind Rented Premise Ordinance, 1979, I see great force in the contention of the learned Advocate for the appellant. It is admitted position, that premises in occupation of the appellant are residential premises, whereas ejectment application c filed by the appellant, relates to non-residential premises and consequently, in my opinion section 14(2) of Sind Rented Premises Ordinance, 1979, do no in any way, bar the ejectment application filed by the appellant. Position, would have been different if appellant had sought ejectment in respect the similar premises in her occupation, in which case section 14(2) of Sind Rented Premises Ordinance, 1979, would come into play and her such application would be barred. In this view of mine, I am fully supported by decision of the Hon'ble Supreme Court reported in PLD 1981 SC 118.
17. ' Therefore, I allow the above appeal and set aside the 'impugned order, dated 20-12-1981 of the learned Ilnd Sr. Civil Judge and Rent Controller Karachi, in R. C. Case No, 3406,81 and grant the ejectment application filed by appellants under section 14(1) of Sind Rented Premises Ordinance, 1979, as prayed, as I find from the evidence on record that appellant has established, that she requires the premises in occupation of respondent for her own use. However, I allow respondent time upto 1-8=1983 to vacate the premises in his occupation and hand over its vacant possession to the appellant, provided respondent continues to pay monthly rent of the premises, regularly and punctually for the said period.