1. ' This appeal is directed against the order of Rent Controller and 'Ind Senior Civil Judge, Karachi, dated 3-10-1982 in Rent Case No, 3010/82 by which order the appellant was directed to hand over the possession of the shop premises on the ground floor of building No, 172/Y/2, P.E.C.H. Society, Karachi under section 14 of the Sind Rented Premises Ordinance, 1979. The facts are not very complicated. In this case, the husband of the respondent was the owner of the four shops premises which he had given on lease to the appellant in 1975 at the rate of Rs,225 per shop amounting to a total of Rs,900 per month. The appellant converted the same into one shop and was using the same as a motor car show-room.
2. ' On 19-10-1980 the husband of the respondent died and she filed an application under section 14 of the Sind Rented Premises Ordinance, 1979 claiming that she has two minor sons and five daughters and there was no one to look after the applicant and her family in order to earn the living for the family, wants to start business of children's readymade garments, therefore she needs the shops premises for her personal use and that opponent was asked to vacate the shops premises but he has failed to do so.
3. ' The appellant had resisted the said application and taken several grounds namely that the application was not maintainable as the respondent was not the sole owner and moreover she did not require it for her personal self but for her children as well who could not claim such position under section 14 and moreover the respondent was in occupation of first floor of the building and that another application under section 15 of the Ordinance was still pending and that he was tenant of all the legal heirs and that he had paid huge Pagree to his original landlord. The appellant had not denied the service of the legal notice but denied the contents.
4. ' The parties led their evidence through their affidavits. Two notices under section 14 of the Sind Rented Premises Ordinance, 1979 were brought on record as Exhs. 0/1 and 0/4. The respondent proved herself to be the owner of the property and produced mutation letter and certificate showing that she was the owner of the property in her own right as her husband had transferred the property to tier during his lifetime. Those documents were not challenged by the appellant. The death of the husband of the respondent was also not challenged and was proved by production of death certificate. The respondent proved that she was not in possession of any commercial premises and she had 5 children but she admitted in cross-examination that two girls had been married. She admitted that she was in occupation of the same building on the first floor but the same was a residential premises. The appellant examined himself and proved that he had taken the four shops from the original owner on rent of Rs, 225 for each shop. He admitted in cross- examination that the respondent was her landlady and he was her tenant.
5. ' Since the position about the appellant being a widow had been clearly proved and notice under section 14 was also admitted to have been received by the tenant, therefore, the Rent Controller ordered the premises to be given to the appellant.
6. ' Mr. Khalid M. Ishaque learned counsel submitted that the appellant had paid huge Pagree and there was a clear stipulation in the agreement of lease, dated 1-7-1975 that the owner will not ask the tenant to vacate the shops in any condition as long as the tenant continues to pay the rent regularly.
7. ' Mr. Khalid M. lshaque therefore, submitted that it was a perpetual lease which had been granted to the appellant. This submission is clearly misconceived. The agreement of lease dated 1-7-1975 was merely a month to month tenancy agreement. In fact it was neither registered nor properly stamped for the purposes of a permanent lease as it was only on Rs, 4 stamp paper, and thus it did not create aliy right of permanent tenancy on the appellant. Moreover, Sind Rented Premises Ordinance, 1979 gives a clear right to the widow to obtain possession of the premises in a summary manner under section 14 and the said right being a statutory right cannot be defeated by a contract which is hit by the provisions of the Registration Act and the Stamp paper. I, therefore, hold that the alleged agreement of lease did not create a permanent tenancy in favour of the appellant. Reference is invited to PLD 1977 Kar. 221 where a lease deed which was for two years was held to be compulsorily registrable and since it was un registered, therefore, it did not create any right or interest in the said property of the tenant.
8. ' Mr. Khalid then argued that the respondent was not the sole owner of the property but that her children were also its owner and that in any case the need of the children was not the need of the widow. This argument is not correct inasmuch as the respondent had proved that the property had been transferred to her, in his lifetime, by her husband and the mutation effected by P.E.C.H.S. and that the approval of the Government had been granted to such transfer. Moreover, the appellant had admitted that the respondent was the owner of the property. The first part of the submission is, therefore, not correct. In respect of the second part of the submission it is enough to point out that in para. 4 of the application of ejectment the respondent has clearly stated that she wants to start business to earn the living for the family and the business that she wanted. to start was of children readymade garments and therefore, she needs the shop for her personal use. It is, therefore, obvious that it was the respondent herself who had sought the possession of the shops and it was not the children who had sought such possession. The learned counsel may have some force in the argument that the children could not claim the benefits under section 14 unless both parents were dead but in the present case the premises were required by the respondent for her own self. It is correct that she wanted to make a living for her whole family but this alone would not take the case out of section 14 when admittedly respondent is a widow and she had sought the premises for doing business on her own. Probably the nature of the business viz. children readymade garments business as mentioned in para. 4 of the application has created some confusion in the mind of the appellant's counsel otherwise it is clear' that the premises were being required by the lady for herself. Mr. Khalid M. Ishaque further submitted that Article 143 of the Constitution saves a special, contract and therefore, that contract cannot be hit by the provisions of the West Pakistan Urban Rent Restriction Ordinance, 1959. I am unable to accept such submission because the special contract urged by the learned counsel in respect of perpetual lease has not come into existence and the agreement of lease cannot be looked into for such purpose because it is neither registered nor duly stamped and hence it does not create 'any such contract of perpetual lease.
9. Therefore, this submission is without foundation. Lastly Mr. Khalid M. lshaque submitted that the learned Rent Controller had failed to determine the need of the .respondent and that he had failed to take into consideration that there were four shops in occupation of the appellant and that the need of the respondent should have been considered in respect of the particular area needed by her for the business of the children readymade garments. Counsel submitted that four shops could not be treated as one shop. He further submitted that the requirement of the respondent could be easily made by giving her a small portion of the disputed premises.
10. Mr. Z.U. Ahmad on the other hand contended that since the shop was now only one, therefore, the respondent was entitled to claim D the whole of the shop. I consider the submission of the appellant's counsel in this respect to be weighty. The learned Rent Controller should have gone into the question as to what was the actual need of the widow respondent but he had not done so. Even the respondent in her affidavit has not given any reason as to why she needs the big shop premises which were originally four shops but has been allowed to be converted into one shop of 464 feet into 20 feet. In fact this aspect of the case has not received proper consideration.
11. 464 feet into 20 feet is fairly a huge show room and would require an investment on a very large scale if the whole premises was used as a children garments show room. One cannot lose sight of the fact that originally there were four show rooms and, therefore, the need of the respondent should have been determined after taking into consideration the previous state of affairs as well, which were four shops and her need of a show-room for children garments business, which could be satisfied by making available to her an area equal to previous two shops. After giving some thought to this matter I had come to the conclusion after hearing of the appeal that the present premises should be bifurcated from the middle and a wall should be constructed in the middle at the cost of the appellant so as to make it into two shops of 23 feet into 20 feet each. A show-room of 23 feet into. 20 feet is a fairly big show-room and can meet the needs of the respondent who wants to make a living for her children and herself while the other half of 23 feet into 20 feet could still be left for the appellant who could continue his business, on a modest scale and thus the widow and her children can sustain themselves and the appellant can also continue to carry on the business and thus complete dislocation could be avoided and a fair and equitable arrangement found.
12. I have considered such an arrangement to be just fair and equitable and I had, therefore, made a short order on 17-4-1984 in this appeal. The appeal is, therefore, dismissed in part and accepted to the extent that the appellant will vacate half portion of the shop comprising 23 feet into 20 feet and he will do so within four months and he will raise a wall at his own cost in the middle of the present premises. The rent of the half portion would be Rs, 450 per month but the appellant will continue to pay rent at the rate of Rs, 900 per month till he vacates the half portion. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.