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Petitioner: Syed MUHAMMAD HAIDER ZAIDI And Others VS Respondent: ABDUL HAFEEZ And Other
Court Name: Supreme Court of Pakistan Judge(s): Ajmal Mian, Zaffar Hussain Mirza Title: Syed MUHAMMAD HAIDER ZAIDI And Others vs ABDUL HAFEEZ And Other Case No.:Civil Appeals Nos.287-K of 1986 Cr. A. No. 147/K of 1987 106-K and 147-K of
JUDGMENT
Reported As: 1991 SCMR 1699 Result: Appeals dismissed Judgment JUDGMENT AJMAL MIAN, J: --Since the above three appeals involve common question of law as to the interpretation and scope of section 14 of the Sindh Rented Premises Ordinance, 1979, hereinafter referred to as the Ordinance, we intend to dispose of the same by a common judgment. In the above cases, leave was granted to consider, whether under section 14 of the Ordinance the landlord, as defined in clause (f) of section 2 of the Ordinance, can file an application should he or she be owner. 2. Before dealing with the above legal aspect, it may be pertinent to state the facts of each case which have given rise to the above litigation. Civil Appeal No.287-K of 1986 The appellant filed Rent Case No.438a of 1981 in September, 1981, in the Court of Vlth Rent Controller and Senior Civil Judge, Karachi, under section 14 of the Ordinance averring therein that he was employed in the Government of Pakistan as a Senior Research Officer, Department of Agriculture and Livestock Products Marketing and Grading, and that he was to retire from the said service with effect from 17-11-1981. It was also averred that it was difficult for the appellant to support his family consisting of three marriageable daughters, two sons studying in Polytechnic Institution and one wife after his retirement and, therefore, he wanted the suit shop which was let out to the respondent at the rate of Rs.150 per month on 25-3-1968. It was also averred that requisite legal notice under the above provision of the Ordinance, namely, section 14 was already served on the respondent. However, in paras.1 and 2 of the application, following averments were made:--
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"1. That the applicant being landlord and owner of the building bearing No.2/874-A, Liaquatabad, Karachi, rented out shop No.7 measuring 28' x 11-1/2' of the above building to the opponent on a monthly rent of Rs.150 p.m. On 25th day of March of 1968. The photostat copy of agreement is produced as Annexure `A'. 2. That in 1974 the above said building was transferred by the applicant through gift to his wife, the wife of the applicant authorised him to collect the rent of the building from the tenants and the applicant has been collecting and receiving rent including the rent of Shop No.7 in possession of the opponent and the applicant has been issuing receipts to the tenants including the opponent, therefore, the applicant is the landlord of the building bearing No.2/874-A, Liaquatabad, Karachi, under section 2(f) & (g) of the Sindh Rented Premises Ordinance, 1979. The photostat copy of mutation and counter receipts are produced as Annexures `B', `C' and `D' " The above application was resisted by the respondent and in reply to the above quoted paras.l and 2 of the application, the following averments were made in paras.l and 2 of the written statement after raising legal objections:--- "1. That the contents of para.l of application are not denied to the extent that the opponent is tenant in respect of Shop No.7 of building on survey plot No.2/874-A, Liaquatabad, Karachi, owned by Mst. Kaneez Haider Zaidi, who is the landlord thereof receiving monthly rent of Rs.150 per month, whereas the remaining contents thereof in the manner they are put in are denied as being misleading and mischievously mala fide. It is submitted that alleged agreement Annexure `A' to application had long ago become infructuous after the applicant transferred the property by way of gift in 1974 in favour of his wife. 2. That the contents of para.2 of the application are denied except that the applicant transferred the property in favour of Mst. Kaneez and appraised the opponent of this fact and he started paying rent to the landlady Mst. Kaneez through the applicant to whom the monthly rent is being handed over on trust basis as her husband. It is denied that the landlady/owner had ever authorised him to collect rent as alleged. It is also denied that the applicant is landlord as falsely and mischievously alleged." On the basis of the pleadings of the parties, the following issues were framed by the learned Rent Controller:- (1) Whether the applicant is a competent person to fall within the definition of landlord so as to file the ejectment application? (2) Whether any cause of action has accrued to the applicant to seek ejectment on the ground of his retirement? (3) Whether the applicant is entitled to ejectment of the shop under the provisions of section 14 of the Ordinance, 1979? (4) What should the order be? After recording the evidence and after hearing the parties, the learned Rent Controller by his order dated 23-5-1982 dismissed the above application by holding as follows:- I am, therefore, of the opinion that the words "personal use and requirement" mentioned in the said section mean and cover the personal use and requirement of the specified person namely the owner of the property and not any other person authorised to collect rent. In this view of the matter the ejectment can be sought by Mst. Kaneez Fatima for her personal use not by her husband. The applicant has, therefore, no cause of action to file the present application." Against the above order, the appellant filed F.R.A. No.714 of 1982 which was dismissed by a learned Single Judge by his judgment dated 17-10-1985. The operative portion of the judgment reads as follows:- "In the present case the title to the wife is admitted by the appellant himself. As the appellant is not the owner he could not file application under section 14 of the Ordinance. The appellant was merely
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a rent collector on behalf of the landlady. In these circumstances he could not file the application." 3. Thereupon, a petition for leave was filed in which leave was granted by this Court by an order dated 19-5-1986 to consider the above question. Civil Appeal No.106-K of 1987 The respondent filed an application under section 14 of the Ordinance against the appellants averring therein in paras.1 to 4 as follows:- (1) The applicant is one of the landlords in respect of premises No.64/1, Nishtar Road, Karachi. A copy of the extract from the City Deputy Collector showing the name of the applicant as one of the landlords is filed herewith and marked as X-1. (2) The opponents No. 1(i) to (iv) are the legal representatives of the original tenant late Rahim Bux, in respect of the above said premises and Qadri Bros. Are sub-tenant inducted by the opponent without consent of the applicant. (3) The applicant is a widow and she needs the said premises in the occupation of the opponents for her personal use to establish her business in the said premises. (4) The applicant is not in occupation of any premises owned by her in any locality." 4. It was further averred that requisite notice under section 14 of the Ordinance was served by respondent through her Advocate on 27-6-1985, to which the appellants' Advocate sent a reply on 8-7-1987. The above application was resisted by the appellants inasmuch as a written statement was filed in which two preliminary objections as to the maintainability of the application and bona fides were raised, but as regards the above quoted contents of paras. 1 to 4 of the application, the following averments were made in the written statement:- "(1) The contents of paragraph 1 as narrated are not admitted. The opponents were tenants of Ebrahimji Essaji Antria and after his death no statutory notice has been sent to the opponents. The applicant has also not filed any letters of administration or order from any other Court or relevant papers to show that the property has devolved upon her. (2) In reply to paragraph 2 it is admitted that the opponents No.1 (i) and 2(iv) are the legal heirs of deceased Rahim Bux. It is categorically denied that the Opponent No.2 are the sub-tenants. (3) The contents of paragraphs 3 and 4 are absolutely false and therefore denied." 5. It seems that after the filing of the above written statement by the appellant, the respondent filed her affidavit in evidence on or about 21-12-1983. Upon the above affidavit, she was cross-examined on 10-2-1986 by the learned counsel for the appellant as follows:- "Re-called and re-affirmed. xxxxxaoa to Mr. Makhdoom Ali Khan Advocate for opponent. It is a fact that Seth Ebrahimji Issaji was the owner of the disputed premises. He had not gifted the said property in his life time. He did not have any will. It is a fact that Seth lbrahimjee died on 14-5- 1970. It is a fact that my husband expired on 13-8-1967. The rent is collected by son of mine. I am Shia by sect." 6. It may be observed that the appellant instead of filing affidavit in evidence in rebuttal, filed an application on 10-2-1986 averring therein as follows:- "Application That the premises No.64/1 Nishtar Road, Karachi, was owned by Seth Ebrahimjee Essaji Antaria. The said Ebrahimjee Essajee Antaria died on May 14, 1970. (2) His son Fazal Abbas, husband of the applicant died on August 13, 1967. (3) It is thus evident that the husband of the applicant pre-deceased his father Seth Ebrahimjee Essajee Antaria, the owner of the rented premises. (4) The applicant is not a legal heir of Seth Ebrahimjee Essajee Antaria and has, therefore, no locus standi to file the present application.
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(5) In view of the above it is respectfully prayed that the case filed by the applicant may be dismissed at 10 times costs as she has no locus standi and therefore the opponents do not want to lead evidence. 7. Upon receipt of notice of the above application, the respondent filed a written reply to the above application alongwith the certified and photostat copies of the documents mentioned therein. Suffice to reproduce hereinbelow paras. 1 to 5 of the above reply, which read as follows:- "(1) The predecessor-in-interest of the landlord and tenant viz. (applicant and opponents herein) filed a rent case No.704/1967 as applicants Nos.1 and 2 against the sub-tenant M/s. Mercantile Corporation and 2 others as opponent, the said case is proceeding in the VII Court of Sr. Civil Judge and Controller (South), Karachi. (2) The applicant No.1 Ibrahimjee Essajee Antaria died during the pendency of the case No.704/67, the legal representatives of the applicant No.1 were brought on record by the consent of the applicant No.2. The applicants Nos.1 and 2 filed joint amended application in Rent Case No.702/1967. A certified copy of the said case is filed herewith and marked as `A'. (3) The opponent M/s. Mercantile Corporation and 2 others filed an application and taken objection therein regarding the ownership of the L/Rs. Of the applicant No.1. The Advocate Mr. Niazi A. Khaliq appearing for the legal representatives of Rahim Buy, the applicant No.2 filed objection to the said application dated 16-12-1982 filed by the Mercantile Corporation and others and stated therein viz-- "It is submitted that only entry in column 8 is relevant in which applicants are shown as owners and not the government throughout." "Original extract dated 22-2-1983 is filed herewith". A certified copy of the said objection as well as the certified copy of the extract from C.D.C. Are filed herewith and marked as B & C respectively. (4) The names of the owners of the property are also entered in the department of Excise and Taxation. A photo copy of the PT-1 is attached herewith and marked as D. (5) The opponents are paying taxes in respect of the property to the Excise and Taxation department. Since the change of the name as owners in the department, the tax vouchers are also being prepared in the name of Mst. Sara and others and the opponents paying the tax through these vouchers. Five (5) photo copies of the paid vouchers from the year 1981 to 1985 in the name of Sara & others are filed herewith and marked as E to I.' 8. It seems that the appellants filed a rejoinder dated 29-3-1986 to the respondent's above written reply to the aforesaid application in which inter alia it was averred that the Annexures A to I filed with the above written reply were not filed alongwith written statement (probably means application) copy with the affidavit in evidence nor were produced during the cross-examination. In para. 2 of the rejoinder as to the legal status of the respondent, the following averments were made:- "2. It has clearly come out in the cross-examination of the applicant that the rented premises were owned by her father-in-law E.E. Antria. These rented premises were not given to her by way of gift, nor was any will in her favour made by the said E.E. Antria. The husband of the applicant died before E.E. Antria. The applicant was the daughter-in-law of the late E.E. Antria and cannot inherit his property. A daughter-in-law is not a legal heir of the property left behind by her father-in-law." 9. The appellants did not lead any evidence in rebuttal to the respondent's aforesaid affidavit in evidence and the documents produced alongwith it. It seems that after hearing the learned counsel for the parties, the learned Rent Controller held that the respondent's above application under section 14 of the Ordinance was maintainable. He recorded inter alia the following reasons:- "From the perusal of the written statement it is clear that the opponents have not specifically mentioned that the applicant is not the landlord of the disputed premises. The application filed by
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the opponents on 10-2-1986 in which they have challenged the landlordship of the applicant does not bear any provision of law under which they have filed that application. Since in the written statement the opponents have not denied the existence of relationship of landlord and tenant, therefore, by filing application dated 10-2-1986, they are not obliged to deny the relationship of landlord and tenant by challenging that the applicant is not a legal heir of lbrahimji Essaji. The rent case cannot decide the dispute of title between the parties but the rent case can be decided on the material documents placed before the Court by the parties. From the perusal of true copy of extract of property register Annexure `C' it is clear that the applicant is one of the owners of survey No.64/1, therefore, it is proved that the applicant is one of the landlords of the disputed premises and I hold that the application is maintainable. The applicant has supported the contents of rent application in evidence and the opponents' counsel has not shattered the evidence of applicant in cross examination, therefore, I havo no option but to believe the version of applicant. It is admitted fact that the applicant had served a notice under section 14 of Sindh Rented Premises Ordinance, 1979, upon the opponents which was duly replied." Against the above order of the Rent Controller, the appellants filed FRA No.308 of 1986, which was declined by a learned Single Judge of the High Court of Sindh through a detailed judgment dated 9-7-1987. Thereupon, the appellants filed a petition for leave, which was granted by this Court on 30-9-1987 inter alia to consider the above broad question. Civil Appeal No.147-K of 1987 10. The respondent filed Rent Case No.4715 of 1982 in the Court of VIth Senior Civil Judge and Rent Controller, Karachi, under section 14 of the Ordinance against the predecessors-in-interest of the appellant, namely, late S.M, Hamza son of S. Inayat Hussain, averring therein that he was landlord/owner of House No313/14 Nasirabad, F.B. Area, Karachi, which he had let out to the predecessor-in-interest of the appellants, namely, late H.M. Hamza son of Inayat Hussain at Rs.133.70 per month. It was also averred that the respondent was in Government service serving as an Assistant in Air Headquarters posted at S.P.S. Shahrah-e-Faisal, Karachi, and that he was due to retire with effect from 30-12-1982 and, therefore, he needed the suit premises for his personal use. It was also averred that he had already served requisite notice under section 14 of the Ordinance. The above application was resisted and inter alia it was pleaded that the respondent's wife Mst. Sarwari Begum was the landlady which was evident from PT-10. It was also averred that the ownership of the property in dispute was not vested in the respondent. On the basis of the pleadings of the parties, the following issues were framed:- (1) Whether the relationship of landlord and tenant between the parties exists? (2) Whether the applicant is entitled to the relief claimed in this case? (3) What should the order be? After recording evidence and after hearing the learned counsel for the parties, the learned Rent Controller recorded his finding on above Issue No.1 in the affirmative, whereas finding on Issue No.2 was recorded in the negative on the ground that respondent owned a quarter at Karachi which was in his possession and in respect of which the alleged gift given by the respondent in favour of his son was not complete. In view of the above finding on Issue No.2, the application was dismissed under Issue No.3 through the order dated 11-6-1983. Against the above order, the respondent filed FRA. No.576 of 1983 in which the only question which was agitated was, whether the gift in favour of the respondent's son to respect of the quarter was complete or not. The learned Single Judge for the following reasons reversed the findings of the learned Rent Controller on the question of gift and allowed the ejectment under section 14 of the Ordinance:- "The learned Controller observed that "gifting of his ownership appears to be really a device to make on the ground for filing the case." These observations of the learned Controller are
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conjectural in nature. It is settled law that a Muhammadan can gift his property orally. The essential requisites for a valid gift as held in case of Mir Haji Ali Ahmed Khan Talpur and 2 others v. Government of Sindh PLD 1976 Kar. 316 are (a) declaration of gift by the donor (b) acceptance of the gift, express or implied, by or on behalf of the donee, and (c) delivery of possession of the subject-matter of the gift by the donor to the donee. In the present case Naved Ahmed Khan, the son of the appellant filed his affidavit in evidence and stated that his father orally gifted quarter No.2/133 on 8-5-1978 and he accepted the gift. In view of this matter the finding of the learned Controller is based on surmises and conjectures. The quarter was gifted to his son who accepted the gift. The appellant does not own the quarter and the same belongs to his son. The appellant is residing in a quarter which does not belong to him in such circumstances. It cannot be said that the appellant is residing in his own premises." 11. Having referred to the relevant facts of the above three appeals, we may revert to the question of law on which leave was granted, namely, whether under section 14 of the Ordinance, the landlord as defined in clause (f) of section 2, can file an application or should he or she be the owner. Before touching upon the merits of each of the above appeals, it may be appropriate at this juncture to refer to the relevant provisions of the Ordinance, namely, section 2(f), (g), section 14, section 15(1)(2) & (viii), section 15-A and section 18, which read as follows:- Section 2(f) & (g) of the Ordinance "2(f) "landlord" means the owner of the premises and includes a person who is for the time being authorized or entitled to receive rent in respect of such premises; (g) "personal use" means the use of the premises by the owner thereof or his wife (or husband), son or daughter;" Section 14 of the Ordinance "14. Delivery of vacant possession.---(I) Notwithstanding anything contained in this Ordinance or any other law for the time being in force, the landlord of a building who is a widow, or a minor whose both parents are dead or a salaried employee due to retire within the 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, may, by notice in writing inform the tenant that he or she needs the building for personal use and 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: Provided that nothing in this subsection shall apply where the landlord has rented out the building after he has retired or attained the age of sixty years or, as the case may be, has become widow or orphan. (2) The landlord shall not be entitled to avail the benefit of subsection (1) if he is in occupation of a building owned by him in any locality. (3) Where the tenant has failed to deliver the possession of the building under subsection (1), the Controller shall, on application by the landlord in this behalf, order eviction of the tenant from the building in a summary manner, by using such force as may be necessary." Section 15(1), (2) & (vii) of the Ordinance: "15. Application to Controller: --(1) Where a landlord seeks to evict the tenant otherwise than in accordance with section 14, he shall make application to the Controller. (2) The Controller shall, make an order directing the tenant to put the landlord in possession of the premises within such period as may be specified in the order, if he is satisfied that - (vii) the landlord requires the premises in good faith for his own occupation or use or for the occupation or use of his spouse or any of his children." Section 15-A of the Ordinance "15-A. Where the landlord, who has obtained the possession of a building under section 14 or premises under clause (vii) of section 15, relets the building or premises to any person other than
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the previous tenant or puts it to a use other than personal use within one year of such possession:- - (i) he shall be punishable with fine which shall not exceed one year's rent of the building of the premises, as the case may be, payable immediately before the possession was so obtained. (ii) the tenant who has been evicted may apply to the Controller for an order directing that he shall be restored to possession of the building or the premises, as the case may be, and the Controller shall make an order accordingly." Section 18 of the Ordinance "18. Change in ownership. Where the ownership of a premises, in possession of the tenant has been transferred by sale, gift, inheritance or by such other mode, the new owner shall send an intimation of such transfer in writing by registered post, to the tenant and the tenant shall not be deemed to have defaulted in payment of the rent for the purpose of clause (ii) of subsection (2) of section 15, if the rent due is paid within thirty days from the date when the intimation should, in normal course, have reached the tenant." 12. A perusal of the above quoted definition of the term "landlord" given in clause (f) of section 2 indicates that the primary meaning of the term is, the owner of the premises. This meaning has been extended artificially by providing that it includes a person who is for the time being authorised or entitled to receive rent in respect of such premises. It may further be noticed that the words "personal use" have been defined as means the use of the premises by the owner thereof or his wife or husband, son or daughter. The latter beneficiaries have also been specified in the above quoted clause (vii) of subsection (2) of section 15 of the Ordinance. It may be observed that section 14 is a new provision enacted in the Ordinance for the benefit of the persons specified therein. There was no parallel section in the late West Pakistan Rent Restriction Ordinance, 1959, or in any other earlier Rent Laws. It may be pointed out that section 14 commences with the non-obstante clause by providing that notwithstanding anything contained in this Ordinance or any other law for the time being in force, the landlord of a building who is, (i) widow; or (ii) minor, whose both parents are dead; or (iii) a salaried employee due to retire within the next six months or has retired; or (iv) a person who is due to attain the age of sixty years within next six months or has attained the age of sixty years; may by notice in writing inform the tenant that he or she needs the building for personal use and require him to deliver the vacant possession of the building within the period specified in the notice not being earlier than two months from the receipt thereof. It may also be pointed out that the proviso to subsection (1) of section 14 provides that the above subsection shall not be applicable where the landlord has rented out the building after he has retired or attained the age of sixty years…
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