' SHAHID ANWAR BAJWA, J.---Petitioner is the tenant and the Respondent No,1 is the landlord.
Application under section 14 of the Sindh Rented Premises Ordinance, 1979 was filed by the landlord and it was stated in the application that the petitioner was a tenant in respect of Shop No,1 on Plot No, V-E, 10/31, Nazimabad, Karachi. It is further stated that applicant was going to retire from his department on 27-2-2010 and he had no other property for personal bona fide use/business.
Written statement was submitted by the tenant. It was specifically denied that the landlord was going to retire in February, 2010 and it was also denied that the landlord had no other property for his personal bona fide use/business. After recording of evidence learned Rent Controller allowed the ejectment application he observed as under:-- "Learned advocate for applicant has contended that the applicant has retired from service dated 28-2-2010 and as such the case premises is required by him for personal use. He has argued that the applicant has also served the opponent with notice and informed him about retirement from service and to vacate case premises.
' On the other hand the learned counsel for opponent failed to argue the case.
' Burden to prove this point was upon the applicant. The applicant has deposed that he is gong to retire on 28-2-2010 on attaining age of 60 years. He deposed that he served the opponent with legal notice. He produced copy of legal notice at Exh.A/1, letter dated 18-8-2009 showing the date of retirement from service at Exh. A/5 and letter of attaining age of 60 years at Exh. A/6. It appears that the applicant has attended age of 60 years on dated 28-2-2010 and has retired from service on 28-2-2010, he deposed that the case premises is required to him for personal use.
' In rebuttal the opponent has not adduced any evidence as such the evidence adduces by the applicant has gone unchallenged and unrebutted. I, therefore, answer point No,1, in affirmative."
3. Being aggrieved by this order, appeal was tiled and the learned Appellate Court vide judgment dated 16-1-2012 dismissed the appeal. Learned counsel for the petitioner submitted that, legal notice dated 5-6-2009 claimed to have been served by the landlord, even if the date of retirement 27-2-2010 is admitted correct, was premature as period of six months has been prescribed in section 14 of the Sindh Rented Premises Ordinance, 1979. Learned counsel relied upon Syed Hasan Askari Rizvi v. Muhammad Aziz PLD 1989 SC 1. Learned counsel next submitted that option is available to the landlord only in respect of one shop and the adjacent shop is available to the landlord. Learned counsel relied upon Mirza Abid Beg v. Mrs: Zarina Shams and 2 others 2003 YLR 2893.
4. Mr. Malik Nazar Abbas, learned counsel for the respondent submitted that the rent case was filed after three months after serving legal notice and therefore application under Section 14 of the Sindh Rented Premises Ordinance. 1979 was maintainable. He relied upon Iqbal Yousuf v. Kishwar Jehan, 1991 SCM R 864. Learned counsel submitted that no such second shop is available to the landlord because his application for eviction of the second shop has been dismissed by the Rent Controller vide order dated 31-1-2011.
5. I have considered the submissions made by the learned counsel and have also gone through the record.
6. Legal notice under section 14 of the Sindh Rented Premises Ordinance, 1979 ihforming the tenant that the landlord was going to retire on 27-2-2010 was issued on 5-6-2009. Contention of learned counsel for the petitioner was that under section 14 of the Sindh Rented Premises Ordinance, notice has to be served within six months of the expected date of retirement. He submitted that in the present case notice has been served q months and 22 days prior to the date of retirement and was therefore premature by one month and' 22 days: it is consequently not valid legal notice within contemplation of section 14 of the SRPO. Learned counsel relied upon Syed Hasan Askart Rizvi's case (supra). In the reported case the legal notice was served on 30th May, 1985 and it was received on June 1st, 1985. Expected date of retirement was 3rd December, 1985. Therefore qua the date of legal notice it was 4 days premature and qua the date it was received it was 2 days premature. The Supreme Court observed as under:- "We have heard learned counsel for both the parties. The appellant was in the Railway Police serving as Head Constable. He was, due to retire and to attain the age of sixty years on 3 December, 1985. He served notice on the respondent under section 14(1) of the Ordinance on 30th May, 1985 which was stated to have been received by the respondent on 1st June, 1985. Thus, it is evident from these dates that it was sent four days before the date when it would have in fact been sent. Consequently if section 14(1) of the Ordinance is to be strictly interpreted because this is a special provision introduced in the Sindh Rented Premises Ordinance by way of an amendment to benefit the categories of landlords mentioned therein, then the notice in the instant case sent by the appellant to the respondent under the aforesaid section was premature as the same was given four days more than six months before the date on which the appellant was due to retire or to attain the age of sixty years. Thus, strictly speaking it was not in strict compliance with the provisions of section 14(1) of the Ordinance and as such was correctly held to be invalid. The record also indicates that although it was not stated by the respondent in. His reply to the notice that it was not specifically in accordance with the provisions of section 14(1) of the Ordinance and was therefore invalid objection to that effect in a general manner had been raised on behalf of the respondent in his written statement, and it was on the basis of the said objection that no issue was framed to determine as to whether the case of the appellant was governed by section 14 of the Ordinance. Therefore, learned counsel for the appellant is not correct to state that no objection to that effect was raised by the respondent and no issue to that effect had been framed." (Underlining is mine).
7. On the other hand learned counsel for the respondent relied upon Iqba 1 Yousuf's case (supra).
Apart from other grounds such as subletting and default one of the grounds was that the landlady had become widow and she needed the premises in question. It was observed by the Supreme Court as under:-- "This being so, legal position would be that although requirement is mentioned in section 14 that notice is to be issued for period not less than two months, still provision with regard to service of notice would not be mandatory in nature but directory. If notice gives substantially the information required by law in clear and understandable manner, then omission to give certain details or failure to mention a particular date in a particular manner or any other similar technical defect, will not invalidate the notice. In such circumstances, order of eviction would be passed by Rent Controller after expiry of 60 days from the date of the service of notice."
' Supreme Court also considered Syed Hassan Askari Rizvi's case and it observed as under:--.
"We are of the view that case of Hassan Askari is distinguishable for the reasons, firstly, that notice under section 14 of the Ordinance was issued 4 days earlier in point of time before it became due, hence on the day when it was issued, landlord had not qualified to be entitled to the relief contemplated under section 14 of the Ordinance, as such this defect was jurisdictional defect, and not a procedural defect. Secondly, objection was taken by the tenant in -the written statement in this context, hence issue was also framed on the point, whether case was covered by section 14 of the Ordinance or not (Underlining supplied).
8. I have gone through the written statement; no objection regarding the notice to have been premature has been taken in the written statement. Learned counsel for the petitioner has not enclosed memo of appeal. However in the judgment of the Appellate Court all the contentions of the learned counsel have been reproduced in para 10 of the judgment and contention that the notice was premature was not raised by the counsel for the present petitioner in the Appellate Court. In this context of fact learned counsel for the petitioner pointed out that this objection has been raised for the first time. In my opinion it is a fact which is floating on the surface of the record and should have been considered by the Courts below.
9. The dictum of the Supreme Court in Hassan Askar Rizvi's case is fully applicable to the facts of the present case. Hassan Askar Rizvi's case has been distinguished by the subsequent judgment of the Supreme Court in Iqbal Yousuf's case. Supreme Court has observed that giving notice before six months is a jurisdictional defect and is not procedural defect. The facts of Iqbal Yousuf's case are clearly distinguishable because it was a case of a widow and question was whether two months time required to be specified in the notice is mandatory or directory. The question in the present case is whether notice given more than six months prior to the expected date of retirement is a valid notice or not and it has been held by the Supreine Court in Hassan Askar Rizvi's case (supra) that if the notice is given more than six months before the expected date of retirement it is a jurisdictional defect and not a procedural defect. In Hassan Askar Rizvi's case notice was premature by 4 days whereas in the present case it is 1 month and 22 days. This is a jurisdictional defect which went to root of ejectment application and since it is floating on the service it should have been taken not of by the Courts below. Contention of learned counsel that the rent case was filed after three months of notice having been served is of no consequence because when the notice was only 4 days premature it was held to be a jurisdictional defect .
10. Result of the above discussion is that application under section 14 of the Sindh Rented Premises Ordinance, filed by respondent No,1 was not maintainable due to invalid notice. Consequently, order dated 4-5-2011 passed by the Rent Controller and judgment dated 10-1-2012 passed by the Appellate Court are set aside and the ejectment application under section 14 filed by the present respondent No,1 is dismissed. It shall however be available to the present respondent to file ejectment application on such other grounds as may be available to him in accordance with the law.
Ejectment .