' This first rent appeal is directed against the impugned order dated 26-5-1982 passed by the learned Senior Civil Judge/Controller-V, Karachi, whereby he has dismissed application for ejectment filed by the appellant/landlady on the grounds that benefit of section 14 of the Sind Rented Premises Ordinance, 1979 (hereinafter to be referred as the said Ordinance) is not available when the disputed premises are required for the need of landlady's children and further that application under section 14 of the said Ordinance was not maintainable.
2. Briefly stated the relevant facts giving rise to this appeal are that appellant Mst. Akhtar Sultana, who is landlady of the disputed premises, filed an application against Syed Abdul Qayum, respondent before me who is tenant for ejectment under section 14 of the said Ordinance on the ground that the accommodation in dispute, which is being used as "Restaurant" was required in good faith for personal use of the landlady, who' had become a widow and for the use and occupation of her children. Notice as contemplated under section 14 for vacation of disputed premises was duly served on the tenant. Tenant contested the proceedings before the learned Rent Controller, filed written statement in which tenancy was admitted but it was denied that premises were required by the landlady for her personal need and the need of her children. Parties filed their affidavits of evidence and were cross-examined. In view of the pleadings of the parties, the Court framed two legal issues to the effect that :whether .the landlady was entitled to avail of benefit of section 14 of the Sind Rented Premises Ordinance, 1979 and whether the application for ejectment under section 14 was maintainable. The controversy was with regard to fact whether premises were required for the personal use of the landlady and her children. In this context, it was pointed out to the Trial Court that the landlady had admitted in her cross-examination that she would not run a shop in the disputed premises but her children would do that. On this premise, it was 'argued that if the premises in dispute were required by the landlady not for her personal use but for the personal use of her children, then section 14 of the said Ordinance will not be attracted and application for ejectment would be filed under section 15 of the said Ordinance. it was further argued that section 14 would apply only when the premises were required for personal use of those persons who are specifically mentioned in section 14 and need of children is specially mentioned in section 15 but not in section 14. The learned Rent Controller in the impugned judgment has fully agreed with this argument and has further relied upon the case of A.S.Mughal v. Mst.Khurshid Azmat All PLD 1982 Kar.
406. Relying upon the above-mentioned reported case the learned Rent Controller came to the conclusion that benefit of section 14 of the said Ordinance is not available for the need of children and application for ejectment under section 14 was not maintainable and consequently he has dismissed the application with costs.
3. Learned counsel for the appellant has produced before me a certified copy of the judgment of the Supreme Court of Pakistan in appeal arising from the same reported case of Mst. Khurshid Azmat Ali v. A.S. Mughal, whereby judgment of the High Court has been set aside. Relevant paragraph of the judgment of the Supreme Court is reproduced as under:- "This brings us to the question as to whether the Rent Controller was justified in allowing the application for ejectment on the ground that the premises was also required for the use of the appellant's daughter. It was contended by the learned counsel for the appellant that in the present case the requirement for the daughter of the appellant was also virtually the requirement of the appellant herself because, she, being old and in urgent need of her daughter's support at every moment of her life, required the disputed premises to accommodate her daughter with her and it had been established on the record that Mst. Mah Jabeen with her children had all along been living with the appellant. It was also pointed out by the learned counsel that the appellant had in fact claimed possession of the disputed premises for her personal bonafide use as well, as was clear from paragraph 2 of her application for ejectment and paragraph 5 of her affidavit of evidence. In this context, it was asserted that the allegation, that the premises were required for the use of the appellant's daughter, was subsidiary in nature and the primary requirement continued to be the personal requirement of the appellant herself."
4. In the instant case the learned counsel for the appellant has argued before me that from the pleadings as well as evidence brought on the record no such impression can be gathered that the landlady has admitted in unequivocable terms that she needs the accommodation in dispute for, personal use of her children and not for herself. In the application for ejectment filed before the learned Rent Controller she has specifically stated that she needed the disputed premises in good faith for her personal use and for use and occupation of her children. She has reiterated this fact in paragraphs 4 and 5 of her affidavit in-evidence. In her cross-examination she has stated that she observed pardah but moved about in Mohallah, clad in a Burqa. She never ran a shop. She would not run a shop even now but her children would run it. From the assertions made by the landlady in her cross-examination as stated above, the learned Rent Controller has deduced that the landlady has admitted that she did not want premises in question for her personal use but wanted the same for the use of her children. The reading of the whole evidence of landlady shows that her only intention was to convey that since she is a Pardahnasheen lady, she would not sit in the Restaurant and run the business herself but would allow her children to do so. She never meant to say that the premises were not required for her personal use. On contrary she would remain as main beneficiary. It is understandable that she being a Pardahnasheen lady would not be able to run business of Restaurant, hence she would allow her children to take up the actual running of the Restaurant anti nonwhere she has stated that she would not be a party to the benefits of that business.
5. For the facts and reasons stated above, I set aside the impugned order and remand the case back to the learned Rent Controller for decision on merits. From the impugned order it appears that preliminary legal issues were framed. Now since the reported judgment.relied upon by the learned Rent Controller has been set aside by the Supreme Court, the position beeomes different and it would be only fair to allow the parties to add to the evidence already recorded on the issue whether premises in question are really required by the landlady for her own use and her children, then full-fledged arguments be heard and the parties be allowed to take steps which are permissible under the law and thereafter the decision be given in strict accordance with law and merits. In cross-objections filed in this appeal, tenant has made a grievance that he was not allowed by the learned Rent Controller to file amended written statement and receipts produced by him specified in the said application for amended written statement were not considered. In this context, I would say only this much that the learned Rent Controller after hearing both the parties has passed a well-reasoned order dated 3-5-1982 to which no exception can be taken. Remand is allowed in the terms stated above. There will be no order as to costs. Appeal is allowed. The learned Rent Controller is directed to complete the proceedings within two months.