1. Appellant Mrs. Zubaida Sultan has challenged the dismissal of her ejectment application filed against the respondent Dr. Iqtidar Hamid Bhatti passed by 1st Senior Civil Judge/Rent Controller, Karachi-East, dated 18-10-1993, The appellant has sought ejectment of premises in question on the ground of personal need under section 14 of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance).
2. Respondent filed a written statement wherein he stated that ejectment application has been filed after a period of more than three years after she became widow and further that she was in possession of another house and also that she asked him to purchase the premises in dispute which he declined, therefore the present ejectment case was filed against him. The respondent has also challenged the bona fides of the appellant in respect of her personal need.
3. Lower Court settled only one issue in respect of personal bona fide use by the appellant which issue has been answered in the negative.
4. I have heard the counsel for the parties and perused the record and proceedings of the case.
5. Mr. Niazy for the appellant contends that the application under section 14 of the Ordinance has been disallowed only on the ground that the appellant moved the present application for ejectment in the year 1991 when the husband of the appellant expired in 1988 and the notice for vacating the premises was sent to the respondent on 3-1-1990, after a lapse of two and half years which fact has been held to be mala fide in filing the ejectment application- He further argued that mere fact that there was a delay in filing ejectment application for about two and half years it would nest debar or disentitle the appellant to have eviction in respect of premises in question against the respondent if otherwise appellant is entitled to it under the law.
6. Mr. Abul Inam, learned counsel for respondent argued that no notice as required under section 14 of the Ordinance has been served upon the respondent and further that the need of appellant was not bona fide as per evidence on record.
7. Section 14 of the Ordinance would show that no time limit has been fixed for seeking such relief of ejectment from the Court. In the present case, admittedly the appellant in her affidavit of evidence has stated that her husband died on 15-8-1988 and the opponent who was on cordial family relations, was asked to vacate the premises who requested for time for period of six months so that he could find out some suitable house for his residence and clinic in one place and thereby he kept the appellant on hopes for long time to initiate the, eviction proceedings against the respondent.
8. She has stated in the affidavit of evidence that she sent notice, Exh. P/ 1, but it was returned un- served with the postal endorsement. She has also stated in affidavit of evidence that she owned property hearing No.D-54/F, North Nazimabad, Karachi, which was in occupation of eight tenants and presently she was living with her three married sons at 22 Tipu Sultan Road, belonging to her late husband where she did not find congenial atmosphere after the death of her husband, therefore, she wanted' to live independently and pursue her own life. She denied that she had any intention to sell the property. The appellant was cross-examined at length but her veracity could not be shaken. She stated in the cross-examination that she needed the premises in dispute in good faith for personal need. The respondent in his affidavit-in-evidence denied that the need of the appellant was bona fide and in the cross he stated that he was never served with the notice and was not even asked orally by the appellant to vacate the premises. So far the service of notice, he stated that the appellant with mala fide intention has manoeuvred the report of postman.
9. Perusal of the evidence which has been adduced by the parties would show that appellant has been denied the right of possession only on the ground that she has delayed the filing of ejectment application under section 14 of the Ordinance. It is correct that she has filed ejectment application under section 14 of the Ordinance after about two and half years from the date of death of her husband. Section 14 does not impose any such bar to the ejectment of the tenant in case delay in making the eviction application. The only bar which has been imposed under section 14(2) of the Ordinance is that landlord shall not be entitled to avail the benefit of subsection (i) if he/she is in occupation of a building owned by him/her in any locality. In the present case, the respondent/tenant has failed to prove that the appellant is in occupation of a building owned by her. Appellant admitted that she is living with her married three sons, which building belonged to her husband. The testimony of the appellant in respect of her bona fide need has not been shaken at all. On the contrary she has proved her bona fide need and section 14 of the Ordinance has been Made specially for the benefit of the landlord/landlady who come in the category stated in section 14 of the Ordinance. Under section 14 of the Ordinance the landlord/landlady has to prove the fact that she is widow and she needed the building for her personal use and that she has not rented out he premises after having become widow and was not in occupation of building owned by her/him in any locality. Nothing has been brought in evidence by the respondent to show that appellant would not be entitled to ejectment on any of the ground stated above. So far as service of notice on the respondent, evidence has been brought that notice was sent but it was returned unserved and the lower Court has observed that the appellant has failed to examine the postman to prove that the respondent avoided to receive the notice whereas the appellant has brought the evidence on record to show that she orally had also requested the respondent to vacate the premises but he kept her on hopes that as soon as respondent got some suitable accommodation he would hand over the possession of the same to her. The reference is made to PLD 1994 Kar. 219, Masud Ahmad Siddiqui v. Rashid Hasan and another, wherein it has been held: "Even otherwise the rule as to service of notice under section 14 has been considerably relaxed upon the development of precedent law, lately emerging and it appears now well-settled that in the absence proof of due notice the eviction application itself under the relevant provision can be reckoned as appropriate notice in lieu."
10. In the circumstances, it could safely be said that the present eviction application itself would amount to appropriate notice, therefore, it could be said that due notice under the law was served upon the respondent hence the eviction application would be maintainable. No other plea has been raised by the parties' counsel.
11. As the appellant has succeeded in proving her bona fide need, therefore, the impugned order of dismissal of eviction application is set aside and eviction application is allowed with the direction that the respondent to hand over possession of the premises to the appellant within the period of 60 days.