1. This First Rent Appeal has been filed against the judgment, dated 17-10-1987 passed by the IVth Rent Controller, South, Karachi in Rent Case No,,4470 of 1982 whereby the Rent Application filed by the applicants/landlords was dismissed.
2. The brief facts as per memo. of appeal are, that the disputed premises which is a Shop bearing No,,G/9, R.C.7/6, Suttar Street, Opposite K.M.C. Maternity Home, Eidgah, Karachi, was originally owned by one Niamatullah, who had rented out the said shop to one Haji Din Muhammad, the present respondent. The said Niamatullah expired on 28-2-1975 and the property devolved on the present appellants, who are the widow, two sons and a daughter of the deceased. After the death of Niamatullah, the property was mutated in the name of Husna Begum, the appellant No,,1, as the rest of the legal heirs executed a deed of surrender in her favour and, as such, the same was recorded in the Record of Excise and Taxation Office and a P.T.O. was issued in her name. However, subsequently, in 1982, all the legal heirs applied to the Excise and Taxation Department for partition of the property in their joint names.
3. After the death of the original owner Niamatullah, a notice, dated 9-9-1981 was served by Mst.
4. Husna Begum, on the respondent intimating him of the death of Niamatullah and claiming herself to be the owner of the property and further that the property is needed by her for her personal bona fide use and also alleging default in payment of rent and conversion of residential premises into commercial. The said notice was replied by the respondent denying the relationship of landlord and tenant as well as the allegations contained in the said notice and when the rent was not accepted by the owner, the same was deposited in Court.
5. Meanwhile the present appellant No,,3 and one of the co-owners, namely Muhammad Mumtaz, who was working with Sindh Road Transport Corporation at Sukkar, retired from his service on 16-2- 1980 and shifted to Karachi for permanent settlement. On 22-8-1982 a notice was issued to the respondent under section 14(1) of the Sindh Rented Premises Ordinance, 1979, the (Sindh Rented Premises Ordinance) for the personal bona fide use of the present appellant No,,3, who after his retirement wanted to set up his business. This notice was also replied by the respondent denying the bona fide need of the said appellant. As such, a Rent Case No, 4470 of 1982 was filed by the appellants on 4-11-1982. Notices were issued to the respondent who filed written statement on 11- 12-1982 denying the relationship of the landlord and tenant and the personal bona fide need of the said appellant, contending that the appellant No, 1 deceitfully got the names of all other legal heirs included in the extract. Affidavits in evidence were filed by both the parties and were cross- examined and by order, dated 14-12-1983 the learned Rent Controller allowed the application and directed the present respondent Haji Din Muhammad to hand over vacant possession of the premises in dispute to the present appellants within 60 (sixty) days from the date of the order.
6. The respondent, being aggrieved by the order, dated 14-12-1983, filed First Rent Appeal No,,146 of 1984 and by order, dated 1-7-1985 the appeal was allowed and the case was remanded back to the Rent Controller for fresh decision in accordance with law after affording the parties opportunity to produce documents and adduce evidence in support of their respective cases.
7. After the above judgment, the parties filed further affidavits-in-evidence and were cross-examined and the learned Rent Controller by his judgment, dated 17-10-1987, dismissed the Rent Application.
8. The present appeal has been filed against this judgment.
9. During the course of the proceedings, yet by another order, dated 4-2-1992, the case was again remanded to the Rent Controller to record additional evidence of the parties to ascertain the date on which the appellants had let out another shop in the same building to Messrs Hafiz Glass Works.
10. The contention of the learned counsel for the appellants is that the notice was duly served on the respondent on 9-9-1981 in regard to the change of ownership of the property and the names of all the legal heirs were also intimated in the said notice. The next, contention is that although the deeds of surrender were executed in favour of the appellant No, 1 herein, but the said appellant had power to confer any of the rights in regard to the said property in favour of any other person muchless on her own sons and daughter.
11. On the other hand, the learned counsel for the respondent argued that after the execution of the deed of surrender it was mala fide on the part of the appellants to apply for the mutation of the property in the names of all the other legal heirs without disclosing that they had already surrendered their rights in her favour. His next contention was that the application on behalf of the present appellant No,,3 was filed much after his retirement and, as such, it was belated and also mala fide as the appellant No,,1 had already filed an application under section 15 of the Sindh Rented Premises Ordinance on the ground of default, personal bona fide use and change of in the nature of the use of the property which resulted in a compromise and enhancement of rent.
12. After hearing the learned counsel for the parties and going through the various orders, the issues to be decided by the learned Rent Controller were as under:--
(1) Whether the opponent is tenant of the applicant in respect of the case . premises?
(2) Whether the applicants need the premises, particularly applicant No,,3, for personal bona fide use?
(3) Whether the applicants No,s.2, 3 and 4 surrendered their rights in 1975 and, if so, what is its effect?
(4) As to when the appellant had let out another shop in the same building to Hafiz Glass Works?
(5) What should the order be?
13. The entire evidence led by the parties clearly establish that Din Muhammad, the respondent herein, is the tenant of the appellants, the legal heirs of late Niamatullah, as notices were duly served on the tenant after the death of the original owner and the particulars of the legal heirs were also given therein.
14. There is no doubt that the notice, dated 9-9-1981 was served by Mst. Husna Begum as the owner of the disputed property as at the relevant time, considering the surrender deed executed by all the other legal heirs, she was the exclusive owner of the case premises. However, in 1982, she decided to apply to the relevant authorities to include the names of the other legal heirs as owners of the case premises which was accepted and decided by an order, dated 20-3-1982 and consequently, a notice, dated 23-5-1983 was served on the tenant stating therein that the disputed premises were needed by the appellant No,,3 for his personal bona fide use. It is evident from the evidence recorded by the Rent Controller that the appellant No,,3 did retire from service in 1981 and subsequently, he shifted from Sukkur to Karachi for permanent settlement.
15. Admittedly the sons and daughter of the appellant No, 1 has executed surrender deed in favour of their mother in 1981. But there is no law which precludes an owner of the property to give confer or transfer certain rights of joint ownership to one or any of the legal heirs or on any other person whom he/she considers entitled to during his/her life time and it can safely be said that the appellant No,,1, the exclusive owner at the relevant time, by including the other legal heirs as joint owners had not committed any illegality or has deprived any other interested person from inheriting a share in the property which could have been against any law or law of Islamic Inheritance. The counsel for the respondent failed to refer to any law which bars such action of the appellants. If object of the appellants was only to avail the benefit of section 14 of Sindh Rented Premises Ordinance, the appellant No,,1 being the widow of the original owner, could have also availed the said benefit under the said provisions. The rent case filed earlier, as referred to by the counsel for the respondent, was actually filed by Niamatullah himself, being Rent Case No, 777 of 1968, which was compromised on 5-4-1968. The main question before the Court in such case should be whether the premises are genuinely needed by the owners for their personal bona fide use. In the instant case the evidence led by the parties clearly indicates that not only the appellant No,,3 needs the premises to start his business but even the appellant No,,1, who according to the evidence was occupying part of the said shop for some time, needed the same for her personal bona fide use.
16. The plaint filed in Civil Case No,,787 of 1988 and the annexures filed therewith by Abdul Hafiz, who was the tenant of the other shop, clearly indicates that the shop was given to Hafiz Glass Works in 1975, much before the retirement of the appellant No,,3.
17. In regard to the objection of the respondent that the appellants had already filed an application under section 15 of the Sindh Rented Premises Ordinance and hence cannot file another application under section 14 thereof for the personal bona fide use of her son, the learned counsel for the appellant referred to the case of Mujtaba Hussain Abidi v. Ferozuddin Zakai PLD 1985 Kar.
18. 663 wherein the judgments passed in the case of Abdul Ghani Dhanwala v. Ahmed Ilmuddin Amir PLD 1982 Kar. 935 and the case of Wahid Shah v. Haider Mirza PLD 1983 Kar. 628 were referred to and the judgments passed therein were upheld wherein the Court took the view that filing of application under section 15 of the Sindh. Rented Premises Ordinance or pendency thereof is no bar on the right of a landlord to file application under section 14 of the Sindh Rented Premises Ordinance.
19. The learned counsel further referred to the case of Abu Bakar v. Abdul Haleem PLD 1991 SC 302 wherein it was held that provision of section 14 of Sindh Rented Premises Ordinance indicates that the said provision overrides the other provisions of the Ordinance and any other law for the time being in force. It further, indicates that a right has been conferred on a landlord of a building who is a widow or a minor whose both parents are dead or a salaried employee due to retire within next six months or has retired or a person who is due to attain the age of sixty years within the next six months or has attained the age of sixty years, to inform the tenant by a notice in writing that he or she needs the building for personal sue and may require him to deliver vacant possession of the building within such time as may be specified in the notice not being earlier than two months from the receipt thereof. Subsection (1) of the said provision, no doubt, takes away this right in certain conditions but the same are not applicable in the present case.
20. There are various judgments of the superior Courts that the Rent Controller cannot investigate into the question of bona fide and genuineness of requirement of landlord in proceedings under section 14 of the Sindh Rented Premises Ordinance. The scope of inquiry under such cases would be limited to determination of fact whether the landlady was a widow or the circumstances which have been enumerated in section 14, Sindh Rented Premises Ordinance, which will include the need of appellant No,,3 as he had admittedly retired from service.
21. It is not the case of the respondent that the appellant No, 3 was not a co-owner or that he had not retired from the Government service.
22. Under the circumstances as given hereinabove, I allow this appeal and set aside the judgment, dated 17-10-1987 passed by the learned Rent Controller South, Karachi in Rent Case No,,4470 of 1982. However, since the respondent is running business in the disputed premises, he is allowed three months time to vacate the disputed premises and hand over peaceful vacant possession of the same to the appellants on the expiry of the three months' period. Under the circumstances as given hereinabove, I allow this appeal and set aside the judgment, dated 17-10-1987 passed by the learned Rent Controller South, Karachi in Rent Case No,,4470 of 1982. However, since the respondent is running business in the disputed premises, he is allowed three months' time to vacate the disputed premises and hand over peaceful vacant possession of the same to the appellants on the expiry of the three months' period.