' This is an appeal against the order 27-10-1980, passed by the learned VIII Senior Civil Judge/111rd Rent Controller, Karachi in Rent Case No,679 of 1972.
2.The brief facts leading to the filing of the above appeal are that late Haji Muhammad Yamin owned the house in dispute. He expired on 10-10-1966 leaving behind the present appellants being the sons and one Mst. Sarwari Begum a widow but stepmother of the appellants. It further seems that present appellants filed the aforesaid rent case for ejectment on three grounds, namely, default in payment of rent for the period commencing from February, 1965 till March, 1972 at Rs,20 p.m, personal requirement and causing damage to the property. The appellant No,1 examined himself in support of the ejectment application, whereas the respondent/opponent examined himself and one Mr.Muhammad Matin Khan, Advocate, in defence. The learned Rent Controller after hearing the parties by the order appeal dismissed the above application on all the above grounds. The appellants being aggrieved by the above order have filed the present appeal.
3.In support of the above appeal Mr. Qamar Muhammad Khan, the learned counsel for the appellants has urged as follows:-
(i) That on the basis of the evidence on record the ground of default stands proved;
(ii) That since the factums that the appellants had 10 members in their family and that they were putting up in a rented premises, stand proved, the personal requirement could not have been refused by the learned Rent Controller;
4. On the other hand, Mr. S. Zamirul Haq, the learned counsel for the respondent has contended as follows:- ' That the appellants have no locus standi to file the ejectment case as they have not impleaded Mst. Sarwari Begum the third co-owner;
(ii) That since Mr. Matin Khan, Advocate who had served notice on the respondent on behalf of the appellants has appeared as a witness and admitted receipt of the rent and the factum of issuance of rent receipts, the ground of default was disproved; and
(iii) That as admittedly Mst. Sarwari Begum being step-mother is not on good terms with the appellants, they have no right to obtain possession of the house on the ground of personal requirement to the exclusion of the third co-owner as the house has not been partitioned.
5. Mr. Zamirul Haq has ncit referred to any case in support of his above first contention but Mr. Qamar Muhammad Khan has referred to the case of Khaliq Ahmad v. Abdul Ghani and another P.L D 1973 SC 214 and the case of Ghulam Sadiq v. Zainab Bibi PLD 1979 Lah.
366. In the first case the Hon'ble Supreme Court of Pakistan while declining to grant leave to appeal against the judgment of the erstwhile High Court of Sind and Baluchistan pointed out the distinction between a suit for possession and a suit for ejectment. It has been held by the Supreme Court in the above case that a suit for possession can be brought by all the co-owners jointly but it is also open to one of them to sue for possession. In such case the other. Co-owners are to be impleaded as defendants, whereas a suit for ejectment can be filed by one of the co-owners without jointing the other as defendant. In the second case a learned Single Judge of the Lahore High Court Afzal Zullah, J (as he then was) held that an ejectment application under Section 13 of the late West Pakistan Urban Rent Restriction Ordinance, 1959 can be filed by one of the several owners and/or landlords. I am also inclined to hold that one of the several co-owners can file an eject ment case and any order passed in such case will be for the benefit of all the co-owners and not alone for the benefit of the person filing the ejectment case.
6. Adverting to the question of default, it may be observed that it is an admitted position that the appellants served a notice dated 1-5-1970 (Exh.6/H) on the respondent through Mr. Muhammad Matin Khan, Advocate calling upon the respondent to pay the arrears of rent from 1-6-1966 within a period of ten days. The above notice was replied to by the respondent on 12-5-1970 in which it was stated that he had paid the rent regularly to late Haji Muhammad Yamin anu after his death he had paid half of the rent for the period commencing from February, 1965 to 31st March 1968 to Mst.
Sarwari Begum on the basis of compromise decree passed in Suit No,1038/67 between the appellants and their step-mother Mst. Sarwari Begum. It was further stated that 50% rent of the above period being the share of the appellants was lying with the respondent. Reference may also be made to the respondent's letter dated 17-9-1970 (Exh.6/J) asking the appellants to justify their demand for 2/3 share of the rent. There is yet another document on the record which has direct bearing i.e, slip of the money order Exh.5/G sent by the respondent to the appellants in respect of the rent for the months of October, November and December, 1970. Mr. Muhammad Matin Khan, Advocate, has appeared as a witness as observed hereinabove and supported the respondent on the point that he had received the rent up to 30th April, 1972 on behalf of the appellants. He has also produced the alleged rent receipts issued by him to the respondent as Exh.1-B, 1-C, 1-D, 1-E and 1-F which indicate the alleged payment of rent up to 30-4-1972. Mr. Muhammad Matin Khan in his cross-examination has stated that he had no written authority from the appellants to receive the rent share of the appellants. Since the notice for the arrears of rent on 1-5-1970 was served by the appellants through Mr. Muhammad Matin Khan, Advocate, I tail inclined to hold that he could have accepted rent on behalf of the appellants up to the period mentioned in the notice and there seems to be no justification for the respondent to pay rent for the period beyond the period mentioned in the notice. The respondent in his statement has deposed that he was paying rent directly to the appellants and that thereafter he paid rent to Mr. Muhammad Matin Khan, Advocate.
This statement to some extent is incorrect as admittedly no rent was paid by the respondent directly to the appellants as nothing has been brought on the record to prove this fact. It is not understandable as to why the respondent would pay rent to Mr. Muhammad Matin Khan, Advocate in any case for the period commencing from October 1970 onwards as he had remitted rent through a money order for the above period which was refused by the appellants. I am inclined to hold that Mr. Muhammad Matin Khan had no authority under law to accept rent on behalf of the appellants after the period commencing from May, 1970, or in any case from October, 1970. In this view of the matter, the default stands proved to the extent of appellants' share. I would, therefore, reverse the findings of the learned Rent Controller on the issue of default.
7. As regards the personal requirement, it may be observed that Mr. Qamar Muhammad Khan has not been able to cite any case law in support of his contention that the appellants could seek ejectment of the respondent on the ground of their personal requirement to the exclusion of the third co-owner Mat. Sarwari Begum. It is an admitted position that Mat. Sarwari Begum is not supporting the appellants' case being a step-mother. I am, therefore, of the view that the learned Rent Controller has properly declined the application on the ground o personal requirement.
8. Since I have reversed the finding of the learned Rent Controller on the question of default, I would allow this appeal on the above ground and direct the respondent to hand over the vacant possession of the premises in question which will be for the benefit for all the co-owners and not exclusively for the benefit of the appellants Nos.1 and 2. However, I grant four months' time to the respondent on the condition that he shall continue to deposit rent in terms of the Rent Controller's order, failing which the appellants shall be at liberty to file execution application before the expiry of the above period of four months. Furthermore, in case the respondent fails to hand over the vacant possession of the premises on the expiry of the above period of four months, the Rent Controller shall issue a Writ of Ejectment without further notice to the respondent. There will be no order as to cost.