Appellant abovenamed, being aggrieved by Order dated 18-9-1980, of the learned Rent Controller No, 3, Karachi, passed in R. C. Case No, 4034/80, by which appellant's ejectment application, under section 14 of the Sind Rented Premises Ordinance, 1979, was dismissed, has preferred this appeal on the following facts and grounds:-
2. Appellant abovenamed filed application under section 14(1) of Sind Rented Premises Ordinance, 1979, for eviction of the respondent, in summary manner. According to appellant, she is one of the co-owner and landlady of the building known as Abdul Latif Abdul Sattar Building, situated at Bottle Gall, Off Frere Road, Karachi. The respondent is the tenant in respect of Flat No, 15, on top floor, on monthly rent of Rs,
45. Arrears of rent has been also accumulated. Her husband expired on 6-1- 1980. The appellant is living in a house of one relative, who accommodated her along-with her children and husband in the lifetime of her husband. This relative, even during lifetime of her husband asked for vacating the house in her possession. After the death of her husband, she is persisting to vacate the house. The appellant being a widow, served notice under section 14(1) of the Ordinance, but since respondent has failed to vacate the fiat, the present application had been filed, for eviction of the respondent.
3. In the objections, filed by the respondent, the maintainability of the proceedings under section 14 of the Ordinance has been challenged. According to respondent, he has paid Rs, 40,000 as his share in construction of the flat, by way of Pugree, under agreement dated 26-7-1971. The building was got constructed through a contractor, namely Younus Ali Gazdar and the reason was to rent out the flats for commercial purposes to gain monetary benefit. It is further alleged, that since the husband of appellant had no funds and was unable to meet the expenses of construction, he handed over the plot to Younus Ali Gazdar for demolishing the old structure and construction of a multistorey building, after raising necessary funds. Agreement dated 15-9-1970 signed between late Abdul Latif and contractor Younus Ali and also agreement dated 26-7-1971 signed between the contractor and the respondent have been relied upon, besides the other documents of possession etc. Etc., respondent has also relied payment receipts to the tune of Rs, 12,000 plus Rs, 442 towards the fittings and one rent receipt of Rs, 120 regarding payment of three months rent to the contractor. Another case bearing Rent Case No, 4008/78 is also pending between the parties as per pleading of respondent.
4. The learned Rent Controller, after hearing the learned Advocates of both the parties, for the reasons given in its impugned order dated 18-9-1980, dismissed the appellant's application under section 14(1) of Sind Rented Premises Ordinance, 1979, and consequently appellant abovenamed being aggrieved by the said order, has filed the above appeal, on the grounds mentioned in Memo of Appeal.
5. The learned Advocate for the appellant in support of the above appeal submitted as under:-
(a) That learned Rent Controller had no jurisdiction to decide about the ownership of constructions and as such he has erred in doing so and coming to conclusion, that appellant's husband was the owner of plot only and not of the constructions standing thereon, as the same were raised by the Contractor, from the finances advanced by the tenants of the property in question and as such appellant cannot invoke the provisions of section 14(1) of the Sind Rented Premises Ordinance, 1979.
(b) That learned Rent Controller has erred in coming to conclusion, that since appellant is not full owner of the property, she has no legal right to file application under section 14(1) of the Ordinance in question in the absence of evidence, that she has become the sole-owner of the flat in occupation of the respondent.
6. In view of above submissions, the learned Advocate for the appellant submitted, that impugned order of the learned Rent Controller is liable to be set aside and appellant's application be granted as prayed, on the following grounds:-
(a) That notice dated 9th March, 1980, given under section 14(1), Sind Rented Premises Ordinance, 1979, is a valid notice and since appellant is admittedly a widow, her application for ejectment, under section 14(1) of the Ordinance in question; due to non-compliance of the said notice, ought to have been granted by the learned Rent Controller. In support of this contention the learned Advocate for the appellant relied upon cases reported in PLD 1981 Kar. 794 and PLD 1978 SC 220.
(b) That respondent's contention, that appellant being only 1/8th owner of the property, on death of her husband has no right to file application under section 14(1) of the Ordinance in question is misconceived, as there are no such restrictions imposed in the said section, for filing of application by widow, if she is otherwise entitled to apply under section 14(1) of the said Ordinance of 1979. In support of this contention the learned Advocate for the appellant relied upon case reported in 1981 SCM R 193.
(c) That respondent's allegations, that appellant is residing in a flat, which belongs to her, he has failed to prove not only before the learned trial Court, but even in this Court, as, in spite of opportunity granted to respondent, vide order dated 18-4-1982, respondent failed to produce even prima facie evidence to show, that property presently occupied by appellant is owned by her.
Respondent filed affidavit dated 25-4-1982, without even giving the number of the said property and/or filing extract from record of C. D. C. Karachi, to prima facie prove, that appellant is owner of the said property.
(d) The vague allegations made in para. 7 of respondent's affidavit dated 18-4-1982 cannot be taken into consideration, as such allegation ought to have been supported by at least affidavit of said Mr. Tahir Ali. In the absence of such affidavit from Mr. Tahir Ali, the said allegations cannot be taken into consideration, in this appeal.
7. The learned Advocate for the respondent on the other hand submitted as under:--
(a) The impugned order dated 18-9-1980 of the learned Rent Controller is legal and valid and is based on facts and documents on record.
(b) That respondent had denied relationship of landlord and tenant, between the parties and as such the said issue has rightly been decided first by the learned Rent Controller by holding that appellant and other legal heirs of the original owner are owners of the plot in question and not of structures standing thereon, on the basis of the admitted documents on record. Without prejudice to the above submissions, the learned Advocate for the respondent further submitted as under:-
(c) That notice dated 9-3-1980 is invalid notice under section 14(1) of the Ordinance in question. In support of this the learned Advocate for respondent relied upon case reported in 1982 CLC 318.
(d) That respondent ought to have been given opportunity to lead evidence and prove that Mr. Tahir Afi vacated the premises in this very building recently, but appellant failed to occupy the same and as such her ejectment application in question is mala fide.
(e) That appellant ought to have proved her bona fide need by leading some evidence in support of her contention as pleadings cannot be considered as evidence under section 19(4) of the Ordinance, which is applicable to section 14(1) of the Ordinance. In support of this the learned Advocate for the respondent relied upon cases reported in PLD 1981 Kar. 622 and 1962 CLC 318.
(f) That since legal heirs of original owner, on his death withdrew earlier application for ejectment filed against the respondent, the present application is not maintainable.
8. I have carefully considered the above submissions made by the learned Advocates of the parties and have gone through the pleadings of the parties and impugned order in question. I have also gone through the various authorities cited by the learned Advocates before me.
9. I find from the impugned order dated 18-9-1980, that the learned Rent Controller dismissed the.
Appellant's application under section 14(1) of Sind Rented Premises Ordinance, 1979, on the following grounds only:-
(a) That husband of the appellant was not the owner of structures, which were constructed from the finances advanced by tenants and as such appellant could not move application under section 14(1) of the Sind Rented Premises Ordinance, 1979, as she and/or other legal heirs of the original owner are not landlords of the said constructions.
(b) That appellant is not the sole owner of the property otherwise also, as her share of inheritance, in respect of said property will be 1/8th only, even if it is presumed, that plot as well as constructions belonged to the original owner and as such application is not maintainable.
(c) That contractor of the property, who constructed the same, is landlord of the constructions and he is not party to the ejectment application in question.
10. I have given very careful consideration to above conclusions and findings of the learned Rent Controller. Jurisdiction of the Rent. Controllers, under the provisions of Sind Rented Premises Ordinance, 1979, is very limited and is confined to determination of the relationship of landlord and tenant, between the parties. In such proceedings, in my opinion, the learned Rent Controller has no jurisdiction to assume the powers of civil Court and decide dispute of ownership of the property, if any, between the parties. Consequently finding of the learned Rent Controller, that structures did not belong to husband of the appellant, is without jurisdiction and cannot be sustained.
11. The second finding of the learned Rent Controller, given in the impugned order, that Contractor is landlord and as such appellant's application was not maintainable is also in my opinion misconceived and cannot be sustained, as respondent in his written statement filed, before the learned Rent Controller did not challenge such relationship and in fact in para. 2(f) admitted to have been paying rent to the husband of the appellant, who in fact had increased the said rent from Rs, 40 p. m. As settled by agreement dated 26-7-1971, between respondent and contractor, to Rs, 45 p. m. However respondent in the said para. Submitted, that payment, which he was making to the husband of appellant was in respect of plot only. However this contention of the respondent is belied by agreement dated 26-7-1971, which he has produced. Para. 2 of the said agreement shows, that rent of Rs, 40 p. m. Was in respect of the Flat No, 14 and according to clause 7 of the said agreement, the same was to be paid to the landlord i. e. Husband of the appellant. In view of these admitted facts on record, conclusions and finding of the learned Rent Controller, that contractor is the landlord of the respondent cannot be sustained. It may further be mentioned, that definition of landlord, as given in Sind Rented Premises Ordinance, 1979, will be applicable to the present proceedings and not definition of landlord, as given in the repealed Ordinance, 1959.
12. The next finding of the learned Rent Controller, that appellant' 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. 4008/78, 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 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.
13. It may further be noted, that respondent bad not challenged the validity of notice dated 9-3- 1980, which was sent to him under section 14(1) of the Ordinance in question, in his written statement nor in his arguments before the learned Rent Controller. Beside this, in my opinion, notice in question cannot be considered to be invalid, simply because it was mentioned in the said notice, to hand over possession within 60 days, instead of on expiry of 60 days. In this connection, I am in full agreement with the judgment of my brother Ajmal Mian, J., reported in PLD 1981 Kar. 794; for the reasons given in the said judgment and in view of the law laid down by Hon'ble Supreme Court, reported in PLD 1978 SC 220. Therefore I hold, that the said notice is valid notice under section 14(1) of the said Ordinance, and the ejectment application in question was filed, after the expiry of 60 days, from the said notice, on 17-7-1980.
14. The contention of the learned Advocate for respondent, that appellant's ejectment application was not maintainable on account of withdrawal of R. C. No, 4008/78, of the legal heirs of original owner, has no force and cannot be considered, as respondent has not filed any application and/or cross-objections against the finding of learned Rent Controller on this point, vide impugned order dated 18-9-1980. Even otherwise this contention has no force at all, as appellant Became widow, after filing of original ejectment application and as such her rights under section 14(1) of the Ordinance, 1979, cannot be affected, by earlier application in question.
15. The only question, which requires consideration in this appeal is, whether, in view of the allegations made by the respondent in para. 4 of his written statement, that Tahir Ali Bhai, another tenant of the property in question has vacated the flats in his occupation, just before filing of present ejectment application, and appellant failed to occupy the same and as such her application is mala fide, therefore respondent ought to have been given opportunity to lead evidence to prove this fact, by the Rent Controller.
16. I have given careful consideration to the above question. I have also gone through para. 4 of written statement of the respondent and para. 7 of the affidavit dated 25th April, 1982, filed by the respondent in this Court. The learned Rent Controller, as he dismissed appellant's application on various other grounds, has not considered this aspect of the objections filed by the respondent. The assertions made in para. 4 of the written statement of the respondent are vague. The respondent has not given the dates, when Tahir Ali is alleged to have vacated the 2 flats in question nor he has even alleged, that the said flats are in possession of the appellant or appellant has let out these flats to any third party. In para. 7 of the affidavit dated 25th April, 1982, the stand taken by the respondent, is contrary to the stand taken by him in para. 4 of his written statement, regarding the 2 flats which are said to be in occupation of one Tahir Ali. In the affidavit in question, no allegation is made, that the appellant is in possession of these flats or that the appellant has reletted these flats to some third party. In the absence of any specific allegations made by the respondent in this connection, the question of giving opportunity to respondent to lead evidence to prove these vague allegations, does not arise in my opinion, as the inquiry under section 14(1) of the Ordinance, 1979, is to be a summary inquiry and such in the absence of the exact dates, when Tahir Ali is alleged to hay vacated the premises in his occupation and in the absence of direct allegation, that on Tahir Alis vacating the said flats appellant came into vacant possession of these flats, it is not necessary to give any opportunity to the respondent to lead any evidence in this connection, on the basis of vague allegations made in para. 4 of the written statement and para. 7 of the affidavit dated 25th April, 1982, as such opportunity in the circumstances of present case, would amount to defeating summary nature of the provisions of section 14(1) of the Ordinance in question.
17. Therefore, I allow the above appeal and set aside impugned order dated 18-9-1980, of the learned Rent Controller and grant the ejectment application filed by the appellant, as prayed. In the circumstances of the above appeal, I pass no orders as to cost. However, I allow a period of 6 months to the respondent to vacate the premises in his occupation and hand over vacant possession thereof to the appellant, provided respondent continues to deposit the rent of the premises, in accordance with the tentative rent orders passed by the learned Rent Controller, in the Court of learned Rent Controller, during this period.