' This is an appeal under section 21 of the Sindh Rented Premises Ordinance, 1979 against the judgment dated 20th December, 1988 passed by the learned 5th Senior Civil Judge and Controller, Karachi (East) on an application under section 14 of the Sindh Rented Premises Ordinance, 1979 in Rent Case No,644/86.
2. An agreement of lease on Rs,5 stamp paper was executed between Syed Kausar Hussain Kazmi as landlord and the appellant as tenant on 9-10-1978, letting out to the appellant the premises viz. "the entire single storey bungalow consisting of three bed rooms with attached bath rooms, one drawing-cum-dining room, one kitchen, pantry, store, one study room, one motor garage and one servant quarter," situate at Block 2 of P.E.C.H. Society on a monthly rent of Rs,2,000. The said agreement, inter alia, provided that the tenant, the appellant may use the said premises for residential and/or commercial purpose (clause No,7 of the agreement). The said agreement to lease was however, renewable at an enhanced rate .By the mutual consent, (clause 12). The said lease agreement admittedly was extended for three years with effect from 9-10-1981 at an enhanced rate of Rs,2,800 per month. It seems that the premises in question is jointly owned by the present respondent and four of his brothers and two sisters by inheritance from their late father, as is evident from PT-1 Form. The names of these co-owners were brought on record of the Excise and Taxation Department on or about 28-6-1979. One of the co-owners, namely, Syed Kausar Hussain Kazmi, who had executed the lease agreement, dated 13th August, 1984 addressed to the appellant, gave a formal notice to him sufficiently in advance enabling him to make an alternate arrangement, vacating the premises before the expiry of the notice as he was afraid that there seemed to be little possibilities of further extension in view of the changed circumstances, about which he has been informed verbally from time to time.
3. On 1-2-1986 Mr. A. Muatti Siddiqui, advocate for and on behalf of the co-owners served a legal notice on the appellant, under section 14 of the Sindh Rented Premises Ordinance, 1979. Paragraphs Nos. 2 and 3 seem to be relevant and are reproduced as under:-- "2.-- That one of my aforementioned clients, Syed Johar Hussain Kazmi who holds the general power of attorney from the other said co-owners in respect of the said premises, is presently employed as Director in the Federal Public Service Commission at Islamabad and he is going to retire from Government service with effect from the 15th April, 1986, vide Government of Pakistan Notification No, F.3/24/82-ESTT, dated 21-4-1985. He has got no residential accommodation of his own at Islamabad/Rawalpindi and on his retirement from service on 15th April, 1986, he is moving over to Karachi along with his family members for permanent settlement here. He has no alternate accommodation or house of his own at Karachi except the said premises which are in your possession as a tenant.
3. That for the reasons mentioned above I am instructed by my said client Syed Johar Hussain Kazmi to inform you, and I do hereby inform you that he needs the said premises, i,e, House No, 187/F, Block II, PECHS, Karachi, for his personal use and occupation; and you are accordingly required to deliver the vacant possession of the said premises on the expiry of two months' time from the receipt of this Notice for the personal use of my said client."
' The appellant having failed to vacate the premises, an application for ejectment was filed under section 14 of the Ordinance by the respondent on the ground of "his personal use". The said application after recording the evidence led by the parties was allowed by the learned 5th Senior Civil Judge and Rent Controller, Karachi (East) by her judgment, which is impugned in the above appeal.
4. Mr. Syed Ali Ahmed Tariq, learned counsel for the appellant has raised a number of pleas in support of the above appeal namely;
(i) That the application is not maintainable under section 14 of the Ordinance, for the reasons firstly, that a fresh agreement to lease had been executed by Syed Kausar Hussain Kazmi, a co-owner and secondly the other co-owners cannot take benefit of the provision of section 14 of the Ordinance and thirdly the respondent retired from service on 15th April, 1983 on reaching his age of suprannuation; and
(ii) That the premises was being used as commercial and not residential and as such the application under section 14 of the Ordinance cannot be filed by the respondent for his residential purpose.
5. As regards the first submission of the counsel that a fresh agreement having been executed the application under section 14 of the Ordinance was not maintainable, I am afraid, it has little fore. No fresh agreement of tenancy was admittedly executed, there was only an endorsement of extension of the period of lease as provided in the original agreement itself (paragraph No,12), no terms of tenancy were changed except the enhancement of rent which was also provided in the original agreement in the same paragraph. Moreover in 1981 when the lease agreement was extended, the respondent was still in service and no cause of action had then accrued to file application under section 14 of the Ordinance. Learned counsel placed his reliance on the case of Mst. Birjis Khatoon v.
Jabbar Ahmad 1983 CLC 3066. The said case is distinguishable inasmuch as there was firstly a compromise in the High Court in the appeal and secondly a fresh lease agreement was executed, changing the terms of tenancy, by the widow.
6. The second submission of the learned counsel that the benefit of section 14 of the Ordinance will not be available to the other co-owners who are neither widow, orphan or have attained the age of 60 years or have retired from the service carries some weight. Reliance is placed on the case of Muhammad All v. Mst. Hameeda Begum 1987 SCMR 1538 and the case of Muhammad All v. Mst.
Hameeda Begum 1988 SCMR 705. In the first cited case the leave to appeal had been granted by the Honourable Supreme Court to consider the said point. The appeal was later on decided in the second cited case. The Honourable Supreme Court in the aforesaid judgment 1988 SCMR 705 seems to have declined the view of placing a narrow construction on the provision of section 14 of the Ordinance. The relevant part of the said judgment is reproduced as under:-- "It is difficult to agree with the contention raised on behalf of the appellant. Quite obviously the object of section 14(1), ibid, is to lessen the hardship which a widow not infrequently faces on the death of her husband and to assist her in settling down again. Therefore, it will not be proper to construe this provision in a manner which would defeat the very purpose for which it has been enacted. The relevant words in the subsection are: "the landlord of a building who is a widow." There is no reason at all why these words should be taken to refer only to a widow who was the owner of the building before the death of her husband or who is sole heir of the original landlord. Such a narrow construction would leave out from the benefit of the provision in question a widow with minor children who has to leave the residence which was formerly given to her husband by his employer or one who purchases a house for personal use from the funds made available to her on the death of her husband; there is no compelling reason for placing such a narrow construction on the provision. There is also no merit in the contention that an application made by a widow under section 14(1) would be in derogation of the rights of the other heirs in the property. The proceedings before the Rent Controller here are intended merely to determine the liability of a tenant to ejectment under a special provision and it is difficult to see how an order made in these proceedings will have any bearing on the rights of the other heirs in the property. It may also be mentioned that the expression "landlord" has been used in the Ordinance in a wider sense for it includes a person who need not be the owner of the premises at all; all that is required is that he should be authorised or entitled to receive rent in respect of the rented premises."
In the instant case, the application for ejectment has been moved by the respondent alone, seeking ejectment for his own 'personal use'. His evidence is also to the same effect. The legal notice dated 1-2-1986 also clearly mentions exclusive need of the respondent only. Mere fact of filing affidavits by the other co-owners of the said property by Munawar Hussain Kazmi and Mst.
Sha'ista Azhar, as referred to by the learned counsel, will not alter the nature of the pleadings. The evidence might have been given to further strengthen the case of the respondent. There is no allegation in the notice dated 1-2-1986 or in the application that the premises in question is required for the use of other than the respondent himself. In fact, the judgment is also in consonance with the prayer made in the application.
7. The third submission of the counsel that the respondent had retired from service on 15th April, 1983 on reaching his age of superannuation has no basis. The respondent was retired from service after availing two extensions, on 15th April, 1986 as per Notification dated 20th April, 1986. In fact this supports the bona fides and genuineness of the need (with which, however, I am least concerned, while dealing with a case under section 14.) It appears that even after retirement from service and giving notice prior to retirement the respondent waited for a couple of years in coming to the Court.
The appellant had sufficient time to meet request of the respondent of vacating the premises in question although the respondent was admittedly residing in a rented premises.
8. The second plea that the premises was being used for commercial purpose and not for residential purpose and, therefore, the same was not available to the respondent for residential purpose, is also without any substance. However, reliance is placed by the counsel on the case of Ulfat Hameed v. Mst. Birjis Khatoon PLD 1982 Kar.
823. I am afraid, the judgment, in fact, on the point at issue, goes against him. On the facts that have come on record the premises in question is a residential one, which is evident from the agreement to lease itself. It finds further support from PT-I Form issued by the Excise and Taxation Department, which also mentions it to be 'residential'. It may be added that the mere choice given by the landlord to a tenant to use the premises (which is residential in nature) for residential or commercial purpose will not change the character of the building, as such reliance is placed by the learned counsel for the respondent on the case of Nek Muhammad v. Muhammad Shafi and others 1983 SCM R 180.
9. It may further be added that the premises having been got vacated in execution of decree is admittedly occupied by the respondent who has been residing there since about a year, as submitted by the counsel for the respondent, and so the submission of the learned counsel for the appellant that the premises will be let out on higher rent falls flat.
10. For the aforesaid reasons, I find no force in this appeal, which is dismissed. There will, however, be no order as to costs.