' This is an appeal against the judgment dated 7-1-1982 passed by the learned VIth Senior Civil Judge and Rent Controller, Karachi whereby he ordered the ejectment of the appellant within 90 days of the date of judgment.
2. The facts which give rise to the instant appeal are briefly that one Muhammad Yousuf owned House No, 1261/2. Azizabad, F. B. Area, Karachi. He filed Rent Application No, 2097 of 1978 but he died on 23-3-1981. However the said rent application was decided by the Controller striking off defence of the appellant for non-payment of the dues in pursuance of the order under section 13(6) of the Urban Rent Restriction Ordinance, 1959. The appellant preferred an appeal against the said order and the appeal is pending in this Court. However when Muhammad Yousuf died on 23-3-1981 his wife (the respondent) who had become a widow served notice on the appellant under section 14 of the Sind Rented Premises Ordinance, 1979 for handing over the possession of the premises. As there was no response to the notice, the respondent filed a separate rent application under section 14 of the said Ordinance. The appellant in her written statement contended that the house was not required for bona fide personal use as the respondent resided in the house which was sufficient for her use and occupation of her children. It was further contended that she had other house in Karachi beside the house in which she was presently residing. A legal plea was raised that the instant application under section 14 is not maintainable inasmuch as the previous rent application was pending in appeal before this Court.
3. The respondent in the lower Court filed her affidavit by way of evidence and she was cross- examined. She has produced the death certificate Exh. 5, copy of the notice dated 29-4-1981, Exh. 6 and the acknowledgement card as Exh.
7. The appellant filed her affidavit in evidence and she was cross-examined. She has produced the Photostat copy of the site plan of the accommodation in P. I. B. Colony Plot No, 32 presently occupied by the respondent in order to show that the accommodation of the respondent was sufficient for her use and for the occupation of her children. The Rent Controller framed the following three issues :-
(1) Whether the applicant under section 14 is not competent as the previous Rent Case No, 2097 of 1978 is pending disposal for ejectment of the opponent from the same house ?
(2) Whether the applicant is residing in a house sufficient for her need and does not require the premises for personal use or for occupation of her children ?
(3) Whether the applicant has other house also in Karachi apart from the one in her occupation ?
4. All these issues were decided by the Rent Controller in favour of the respondent.
5. The earlier application namely the Rent Application No, 2097 of 1978 was decided by the Controller by striking of the defence of the appellant for non-payment of the rent against which the appellant preferred appeal in this Court, and the same is pending. The cause of action under section 14 has become a different cause because the wife of Muhammad Yousuf suddenly became a widow and in the exigencies of circumstances her need to have her own house for the accommodation of the family became her pressing need. In a decision reported in PLD 1981 Kar.
329, at page 337 the same question was dealt by Ajmal Mian, J. And observed that the counsel of the appellant was not able to point out any provision of law barring the filing of application under section 14 of the Ordinance during the pendency of an application under section 15 and that in the absence of any such bar it cannot be urged that the respondent's application under section 14 was incompetent. On the same analogy there would be no bar to file an application under section 14 of the new Ordinance during the pendency of an application under the West Pakistan Urban Rent Restriction Ordinance. However a new cause of action did accrue to the respondent and as such the subsequent application filed by her was competent.
6. The contention that the house presently occupied by the respondent is sufficient for her needs is sought to be proved by production of the map of the said house. It is to be remembered that the respondent has two sons and three daughters and their need becomes more for the daughters and sons to be B married. The bona fides of the respondent cannot doubted on this account.
' It is observed in the authority reported as Wall Muhammad v. Mrs. Hameeda. The following observations from the authority are worth quoting "It was next contended by Mr. Omarani that even on merits the respondent has no case as she has sought ejectment from the two tenements, each of which has 4 rooms, whereas the respondent has 5 children in addition to herself. According to him one tenement would be sufficient to meet the requirement of the respondent. In my view the question of bona fides cannot be investigated into by this Court in an application under section 14 of the Ordinance in view of the difference in the language employed in sections 14 and 15(2) (viii) whereas in the former section the words "in good faith" have been deliberately omitted but is the letter section, the same have been provided for. In order to apply under the latter section a landlord is required to prove that he requires the tenement concerned for his personal requirement in good faith. Whereas no such burden of proof is cast on a person applying for ejectment on the ground of personal requirement under the former section (i,e, under section 14)."
7. The appellant has not proved the fact that the respondent has any other house owned by her in any locality.
8. In this Court while arguing the case the learned counsel Mr. S. Ajaz Hussain Rizvi made his submissions namely (i) that the respondent could not have filed the rent application as she was neither the landlord nor the owner; (2) section 14 read with section 2( f ) of the Sind Rented1 Premises Ordinance does not entitle the respondent to become landlord ; and (3) there was change in the ownership and hence notice was necessary under section 18 of the said Ordinance.
9. As regards the first contention it may be stated that when a wife becomes widow, does legally inherit her share in the property of her husband according to Muslim Law. Whatever her share be, she is a co-owner along-with other heirs in every inch of the property. For the purposes of the Ordinance she is owner and as such she is competent to file the rent application. The definition of word 'landlord' as defined by section 2 (f) is a under:-- "landlord" means the owner of the premises and includes a person who is for the time being authorized or entitled to receive rent in respect of such premises."
The word "owner" does not contemplate a sole owner or that owership means the total ownership of particular single individual. This would be reasonable interpretation put on the word owner as it occurs in the definition of the landlord.
10. As regards the second contention of the learned counsel of the appellant it may be answered that section 14 read with section 2 ( f ) does not alter the proposition that the widow who is an owner by inheritance cannot file an application under section 14 of the Ordinance. Section 14 is as under :- "Delivery of vacant possession.--(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 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."
11. The proviso to subsection (1) clears the matter and means to say that where the 'landlord has rented out the building after he has retired or attained age of 60 years or the case may be has become widow or orphan. The words "has become widow" clearly indicate that the widow could file an application as a landlord. Similarly the third contention loses force. The husband of the respondent died during the pendency of the previous rent application and his legal heirs were joined and the appellant knew about the death of the previous owner or the change of the ownership. However, the notice as contemplated under section 18 was duly served upon the appellant.
12. The learned counsel for the respondent depended on the judgment of the lower Court and has further stated that the pleas raised by the learned counsel of the appellant are new which were not raised before the lower Court. These pleas therefore, cannot be considered at the appellate stage.
However, I have dealt with , all the contentions raised on behalf of the appellant and come to the conclusion that the appellant has no case whatsoever.
13. In the result this appeal has no merit and I dismiss it accordingly. However, in the circumstances there will be no order as to costs. The appellant is allowed 30 days' time to deliver the peaceful possession of the premises to the respondent. PLD 1981 Kar. 7941