1. This First Rent Appeal is directed against the order dated 28th July. 1987, passed by the learned 3rd Senior Civil Judge and Rent Controller, Karachi East, by which the ejectment application filed by the appellant was dismissed.
2. The brief facts giving rise to the present appeal are that the appellant filed an application under section 14 of the Sind Rented Premises Ordinance, 1979, before the learned Rent Controller inter alia alleging therein that she is a landlady in respect of shop on ground floor situated on plot No. 145, C.P. Berar Society, Blocks 7 and 8, Nishtar Road, Karachi. That the opponent/respondent is her tenant in respect of the above premises on monthly rent of Rs. 400 excluding electric charges. It was further stated that the premises in dispute were originally let out to the opponent/respondent by Abdul Haseeb Siddiqui, husband of the applicant under a tenancy agreement dated 4-4-1974.
3. That said Abdul Haseeb Siddiqui died on 23-11-1981, leaving behind the applicant, one son and three daughters. That the applicant was a widow and required the premises in dispute in good faith for her personal use to run her own business therein. It was further alleged that there was originally a passage on the front of the house of the applicant which has been closed on account of the disputed shop due to which there is no entrance on the front side of the house of the applicant, and, therefore, the premises in dispute is required in good faith for opening and using main entrance of the house besides for running her own business in the disputed premises. That the applicant had served the opponent with a notice dated 8-10--1985, through her Advocate as envisaged by law, asking him to vacate the premises as the same was required by her for her personal bona fide use. That the notice was duly received by the opponent but he neither replied the same nor vacated the premises. That the applicant had filed a rent case bearing No. 1874 of 1983 against the opponent which was later on withdrawn by the applicant on 10-7---1985.
4. The respondent filed his written statement in which he raised preliminary objections that he was not served with notice under section 18 of Sind Rented Premises Ordinance, regarding the change of ownership of the premises in dispute. That the applicant was not the owner, nor allottee nor lessee of the Plot No. 134, C.P. Berar Society and, as such, she could not file case under section 14 of the said Act. The plot in question was allotted to Muhammad Fazal Haq who raised construction on the plot in the year 1966. That Abdul Haseeb Siddiqui .Son of Muhammad fazal Haq Siddiqui misrepresented himself as owner of the above shop during the lifetime of Muhammad Fazal Haq and rented out the same to the opponent on monthly rent of Rs. 260. After the death of Abdul Haseeb Siddiqui his brother Abdul Hafeez Siddiqui started collecting rent from the opponent in respect of the disputed shop. He further disclosed that on the death of his father, in 1975, the property bearing No. 135, C.P. Berar Society devolved on five sons and seven daughters of Muhammad Fazal haq. However, no legal notice for the change of ownership under section 18 of Sind Rented Premises Ordinance, 1979 was served on him. That looking to the heirs of deceased of Muhammad Fazal Haq, the applicant as widow of Abdul Haseeb Siddiqui son of Muhammad Fazal Haq was entitled to a nominal share of the 12 paisas; and that the present case was filed with mala fide intentions. That previously she had filed a Rent Case No. 1874 of 1983, against the opponent through Attorney Abdul Hafeez Siddiqui brother of her husband falsely claiming herself as allottee and lessee of the said plot but the same was withdrawn later on. After the withdrawal of the said case Abdul Hafeez Siddiqui had been pressurising the opponent to increase the rent and pay him goodwill. It was further stated that late Abdul Haseeb Siddiqui had sent two notices dated 2-11- -1975 and 7-7-1977 asking him to vacate the shop on the ground floor and that he required the same for personal use, but on 28-11-1975, he took Rs. 2,000 from him, increased the rent by Rs. 20 per month and gave up his demand for vacant possession. Again late Abdul Haseeb Siddiqui started harassing the applicant and on I7--3-1980 he took further amount of Rs. 5,000 as goodwill/Pugri of the said shop from him. That the front portion of the houses of Nishtar Road have been converted into shops and Nishtar Road has become a Shopping Centre and shops are being let out on goodwill/Pugri. Abdul Hafeez Siddiqui has adopted the same tactics of his late brother and wants to extort money from the opponent, therefore, he has got the application tiled mala fide.
5. He was approached by Abdul Hafeez Siddiqui and his Advocate Mr. Riazuddin for enhancement of rent to which he did not agree. That the application was filed mala fide and premises in dispute were not required by the appellant for her personal use.
6. On the pleadings of the parties, the learned Rent Controller was pleased to frame the following Issues:-
(1) Whether the applicant is entitled for relief claimed under section 14 of the Sind Rented Premises Ordinance, 1979?
(2) What should the decree be?
7. That in support of their respective contentions, applicant/appellant riled her own affidavit and has produced tenancy agreement, death certificate of her husband, notice dated 8th October, 1985, alongwith acknowledgement receipt sent to the respondent, notice dated 7-7-1975 sent by her husband to respondent Exh. 4-B, another notice dated 2nd November, 1975, Exh. 4-C, reply from Muhammad Yousuf dated 28-11-1975 Exh. 4-D, showing that Rs. 2,000 were paid to Abdul Haseen Siddiqui as fixed deposit and that the rent was increased at Rs. 20 per month. Another letter dated 17-3-1980 showing increasing of rent from Rs. 400, letter dated 17-3-1980. Exh. 4-A allowing Muhammad Yousuf to use the shop in question for his particular business, copy of previous rent case No. 1874/81 Exh. 4-C, General Power of Attorney executed by appellant in favour of Abdul Hafeez Siddiqui. On the other hand the respondent has filed his own affidavit in evidence and has produced the certified copy of the affidavit filed by Abdul Hafeez Siddiqui in the earlier case as Exh.
8. 5-A, certified copy of Misc. Rent Case No. 2654 of 1984, filed by respondent Muhammad Yousuf, against the appellant and Abdul Hafeez Siddiqui for deposit of rent as Exh. 5-C, certified copy of application filed by respondent. Against the appellant and Abdul Hafeez alleging fraudulently withdrawal of rent of Rs. 3,600 Exh. 5-D, application filed by the appellant under section 16(1) of Sind Rented Premises Ordinance, Exh. 5--E, objection filed by the respondent regarding deposit of rent Exh. 5-F, tentative order regarding deposit of rent in Rent Case No. 1874 of 1983, Exh. 5-G; application filed by the respondent for modifying tentative order dated 14-1-1985, Exh. 5-H, application for withdrawal of case filed by the appellant in the earlier case Exh. 5-I, and order granting withdrawal of rent case with permission to file a fresh as Exh. 5-J, application for withdrawal of rent as Exh. 5-K, application filed on behalf of appellant and Abdul Hafeez Siddiqui raising objection to the jurisdiction of the Court Exh. 5-L, and the notice dated 8th October, 1985, sent to the respondent as Exh. 5-M.
9. The learned Rent Controller after taking into consideration the evidence, produced by the parties dismissed the ejectment application. The present appeal is directed against the said order.
10. It has been contended by Mr. Javed Mussarat, learned counsel appearing for the appellant that the learned Rent Controller had erred in holding that the appellant /applicant was not the sole owner of the premises in dispute and since the other co-sharers had not supported her case, the application filed by her under section 14 was not maintainable. He has further contended that the respondent was put in possession by the husband of the appellant, he had executed an agreement of tenancy in favour of the husband of the appellant, and that he had been paying rent to the deceased husband of the appellant, and after his death to the appellant and, therefore, the respondent was estopped from challenging the right of the appellant to eject him from the premises in dispute. In support of his contention learned counsel has relied upon:-
(1) PLD 1987 SC 107.
(2) PLD 1986 SC 154.
(3) PLD 1985 Kar. 47.
11. Mr. Raja Haq Nawaz Khan, learned counsel appearing for the respondent has contended that the appellant /applicant had only 12 paisas share in the property in question and since he was not supported by other co-sharers, the application filed by her was not maintainable. He has further contended that the appellant had also filed the more cases; through her son and daughter for ejectment against other tenants being Rent Cases Nos. 1602/85 and 1584/85. That late Abdul Haseeb Siddiqui had not disclosed to the respondent at the, time of execution of agreement of tenancy that the premises belonged to his fattier Muhammad Fazal-e-Haq, and that on his death the property devolved on five sons and seven daughters, as disclosed by Abdul Hafeez Siddiqui, and, therefore, the appellant was not entitled to maintain any application tinder section 14 of the Sind Rented Premises Ordinance, 1979. In support of his contentions, the learned counsel has relied upon:-
(1) 1983 SCM R 65.
(2) 1982 CLC 1871.
(3) 1985 CLC 882.
(4) 7985 CLC 1534.
(5) 1986 CLC 2039.
12. I have considered the contentions of the learned counsel. It has been admitted by the respondent in his written statement that the premises in dispute were rented out to him by late Abdul Haseeb Siddiqui husband of the appellant and it was he who had put him in possession hereof. It was also admitted by respondent that he used to pay rent to Abdul Haseeb Siddiqui even during the lifetime of Muhammad Fazal-e-Haq in whose name the property stood in the record. It has further been admitted that after the death of Abdul Haseeb Siddiqui the appellant had filed an ejectment application through Abdul Hafeez Siddiqui brother of her husband and her attorney which were later on withdrawn. It is also an admitted position that the respondent was put in possession as tenant in 1974, by Abdul Haseeb Siddiqui during lifetime of his father Muhammad Fazal-e-Haq who died in the year 1975, after the death of Muhammad Faze Haq, the husband of the appellant continued recovery of rent from the respondent till his death in the year 1981, and none of the co- sharers ever objected or asked the respondent for payment of rent even after the death of Abdul Haseeb Siddiqui. Of course the appellant has admitted in cross-examination that the plot on which the shop in question is situated was allotted to her father-in-law Muhammad Fazal-e-Haq but it was constructed by her husband and his brother. It is also admitted by her that on his death Muhammad Fazal-e-Haq left five sons and seven daughters and the property in question still stood in his name. She has admitted that none of her husband's brothers and sisters have transferred the house is question to her till this day. That she had not received any letter Administration from High Court. She has not sent any notice under section 18 to the opponent /respondent but had sent notice for eviction of opponent/respondent which she has produced as Exh. 4-A. She has also admitted the filing of previous ejectment application and that the same was withdrawn. It is also admitted by her that two other rent cases bearing No. 1584/85 and 1681/8` have been filed by her son and her daughter. That all brothers of her husband arc living in disputed house, She has denied that Pugri of the area has increased and, therefore, the brothers of her husband wanted to get possession with her help. Of course, the applicant has 1/8th share in the property in dispute but it is not denied that the appellant is widow of Abdul Haseeb Siddiqui who had rented out premises in question to the respondent and it is also not denied that none of the co-sharers have ever objected to the recovery of rent nor any one of them has issued any notice to the respondent nor filed any case against him, claiming their share of rent or for ejectment. On the contrary the case of the respondent in para. 7 of his affidavit-in-evidence is:- "That the applicant does not require the case shop for personal use. The ejectment application has been got filed by Abdul Hafeez Siddiqui and other legal heirs of late Muhammad Fazal-e-Haq with mala fide intentions as he did not agree to their demand of payment of Pugree and increase in the rent."
13. Even it was suggested by the appellant in cross-examination that:- "The Pugree of the area had increased, as such, the brothers of her husband wanted to get premises with her help."
14. The learned counsel appearing for the appellant has relied upon the following decisions:-
1. A.R. Khan v. P.N. Boga (PLD 1987 SC 107) wherein it was observed by their Lordships while considering the question of estoppel that:- "When a deed confers on a person certain benefits burdened with certain obligations, that person has the right to elect whether he could take the benefits under the deed or not. If he does elect to take benefits under the deed, he must also, bear the burdens created thereby. The law does not permit him to retain the benefits and repudiate the burdens."
2. Syed Arif Shah v. Abdul Hakim Qureshi (PLD 1986 SC 155), while relying upon the definition of landlord as defined under section 2(f) and section 15 of the Sind Rented Premises Ordinance 1979, and section 116 of Evidence Act, it was observed: "That the learned counsel for the petitioners admitted that Mutawalis or transferees are managers or Wakf properties which inter alia entitled them to receive the rent or Wakf properties which have been given on lease. He also admitted that the premises in question were let out to the petitioners by the respondents and it is to them that they (i.e. The petitioners) used to pay the monthly rent. In view of this admission it is evident that it does not tic in their mouth to deny that the two respondents are their landlords for the purposes of section 15 of the said Ordinance, not only because the respondents co-mutawalis are covered by the definition of the word `landlord' as given in section 2(f) of the aforementioned Ordinance, but also because of the bar placed on the petitioners by section 116 of the Evidence Act." --- It seems to us that High Court has rightly held that once a person has accepted another as his landlord and entered into possession of the premises, as such tenant, he cannot be allowed to challenge the title of his landlord," and petitions for leave filed by the petitioners/tenants against their ejectment on the ground of personal bona fide requirement was dismissed.
3. Shaheryar A.I Patudi and three others v. M/s. Decora Furnishers (PLD 1985 Kar. 47), wherein it was observed by this Court that:- "A co-owner is entitled to recover rent on behalf of or for the benefit of other co-owner. One of the co-owners can validly enter into an agreement to lease the premises and he shall be deemed to be a landlord. It is not necessary to join all the co-owners in the lease. A person having an undivided share in a house or rented land is a part owner and has a right to recover rent on behalf of the co-owner.
15. The following decisions were relied upon by Mr. Raja Haq Nawaz Khan learned counsel appearing for the respondent;
(1) 1983 SCM R 65.
(2) 1982 CLC 1871.
16. 1983 SCMR 65 and PLD 1973 Kar. 284 and the learned Single Judge of this Court was pleased to observe that the contentions raised by the learned counsel for both the parties are arguable contentions and the points which arise will be properly decided at the time of regular hearing of the appeal, and therefore, instead of ordering the appellant to deposit arrears of rent as well as future rent he was directed to furnish security in the sum of Rs. 15,000.
(3) Mojnul Hassan v. A.R. Junaid 1985 CLC 882 it was observed by this Court.
17. "While interpreting sections 14, 15(2)(vii), and Term `Landlord' it was held that the term landlord used in section 14 and even in subsection 2(vii) of section 15 has been used for the owner of the premises and not for the Rent Collector or an agent who is not the owner of the property but a landlord within the meaning of section 2(f) of the Sind Rented Premises Ordinance."
(4) Mst. Saeeda Hydri Khatoon v. Aftab Ahmad and others (1986 CLC 1534). 1t was observed by this Court that:- "A widow as co-owner is entitled to press into service section 14 of the Ordinance, provided the other co-owners/legal heirs support her application, or portion of the building for which she has applied for ejectment has fallen to her share upon partition of the property. However, in a case where the other co-owners/legal heirs do not support a widow in her application under section 14 of the ORDINANCE. In my view section 14 of the ORDINANCE cannot be pressed into service.
(5) 1n the case of Mst. Fatima Bi v. Issa (1986 CLC 2639).
18. While considering the object and scope of section 14; it was observed by this Court that:- "In my view she cannot afford to occupy and live in both portions alone she may be competent to file ejectment application under section 14 of the Ordinance. She is entitled to 1/8th share from the property and the co-sharers having 7/8th share in the house have neither filed any rent case under section 15 of the ORDINANCE nor they have come forward to give evidence for her. The case of the appellant as given in rent application that house is required for her use and for the use of her son has not been proved. It has also not been proved that she needed both the portions of the house for her personal bona fide use. Had she been in actual need of a house she could have applied for one portion of the house and not for both the portions consisting of six rooms. The bona fide requirement was, therefore, held to be doubtful.
6. As far as the decision of the Hon'ble Supreme Court in the case of Province of Punjab v. Mufti Abdul Ghani was concerned, the relationship of landlord and tenant was disputed and the Rent Controller had failed to decide the question of jurisdiction before passing tentative order regarding deposit of rent and, therefore, the Supreme Court was pleased to grant leave and status quo was maintained. In the above decision the case was not decided but only leave granted. Moreover the contention was that respondent Mufti Abdul Ghani was neither owner nor transferee of the property, m dispute and even otherwise he had no locus standi to institute the ejectment proceedings and, therefore, with utmost respect the decision is distinguishable and does not apply to the facts of the present case. As far as the second case of Abdul Sattar v. Nasima Bi was concerned, on one hand the PTD issued in favour of the persons from whom the respondent had acquired title was cancelled by the Chairman Evacuee Trust Board, and on the other hand the decision was given on an interlocutory application made for directing the tenant /appellant to deposit arrears as well as future rent and it did not decide the point m disputed and, therefore, the same was not applicable to the facts of the present case. As for as the case of Moinul Hassan v.
19. A.H. Junaid was concerned, it does support the contention of the learned counsel appearing for the respondent to some extent but the facts of the present case were distinguishable to some extent inasmuch as the appellant was not merely agent or rent collector of the actual owner but she had 1/8th share in the property and the respondent had executed an agreement of tenancy in favour of her husband who had put him in possession of the premises in dispute. Even the co-sharers never objected to the payment of rent to the appellant or her husband.
20. As far as the decision in the case of Syeda Hydri Khatoon v. Aftab Ahmed and 8 others; was concerned, it shows that a widow as co-owner was entitled to press into service section 14 of the Ordinance provided the other co---owner/legal heirs supported her application. In the present case it was the case of the respondent that the appellant was set up by the other owners/other legal heirs of deceased to get the shop in question vacated and, therefore, the above decision instead of helping the respondent supports the case of the appellant.
21. As far as the decision in the case of Fatima Bi v. Issa was concerned, the learned Judge had dismissed the appeal on the ground that she was not able to prove that she required the 2 portions of the house consisting of six rooms for her personal bona fide use and since the bona fide requirement was doubtful and, therefore, the application was dismissed. Therefore the above decision is also distinguishable and does not apply to the facts of the present case.
22. As far as the decision in the case of Yousuf and another v. Muhammad Zubair and others (P.L.D 1986 SC 154) and Shaheryar A.I Patudi v. M/s. Decora Furnishers (P.L.D. 1985 Kar. 47) were concerned, they are applicable to the facts of the present case. In the Supreme Court case, while relying upon the definition of `landlord' under section 2(f) of Sind Rented Premises Ordinance, their Lordships were pleased to hold:- "Even mutawallis or transferees or nominees of the Wakf properties oho were entitled to receive rent of the Wakf properties, they were entitled to possession in the ground of personal use."