(1)(a). This second appeal is directed against the order dated 21-12-1980 passed by the learned VII th Rent Controller, Karachi in Rent Case No: 6933/80, directing the appellant to hand over vacant possession of the flat in question (hereinafter referred to as the fiat) within 30 days from the date of the order under section 14 of the Sind Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance).
The brief facts leading to the filing of the above appeal are that the respondent under a tenancy agreement dated 18-2-1972 had let out the flat to the appellant at Rs.350 per month plus Rs. 21 towards the water and conservancy charges for a period of 11 months. The respondent filed the above application on 2.12-1980 averring therein that she bad attained the age of 60 years on 3- 7-1975 and that she was not in occupation of any building owned by her in Karachi and was living in a rented premises with her husband, son and son's wife. It was also averred that the applicant needed and required the flat for her own use and occupation as well as for her family. It was further averred that a requisite notice under section 14 of the Ordinance was duly served upon the appellant on 8-9-1980 giving him 2 1/2 months' time to vacate. It seems that upon the service of the notice of the above application, the first date of bearing before the learned Rent Controller was 16-12-1980. On the above date the appellant's learned counsel filed an application under section 151, C. P. Code stating therein, that the appellant had received the summon without the copy of the application and hence the appellant was unable to file the written statement. It was prayed that the respondent be directed to supply a copy of the application in order to enable the appellant to file a written statement. The learned Rent Controller was of the view that there was no provision for filing written statement. However, he granted 24 hours to the appellant to file objections.
(b) It further seems that on 17th December the case was adjourned to 18th by consent. On the latter date the appellant filed objections in which inter alia it was averred that the respondent had already filed Rent Case No. 150/80 against the appellant and other cases against the other tenants of the other flats. It was also averred that the application under section 14 of the Ordinance was not maintainable and that the respondent was the owner of four fiats in the same locality in the same building and that actually she was in possession of one of the flats through her relation. It was also pleaded that her son also owned other fiats and shops mentioned in para. 4 of the objections. It was further pleaded that the appellant was a heart patient with high blood pressure and was suffering from angina pain and that the grant of the application would cause hardship to him. The learned Rent Controller after hearing the learned counsel for the parties on 18-12-1980 fixed the case for 21-12-1980 for orders, on which date the order under appeal was pronounced. The appellant being aggrieved by the above order filed the present appeal.
(2) (a) In support of the above appeal Mr. Aftab Alvi, learned counsel for the appellant has urged the following points "(i) That the learned Rent Controller has not provided a reasonable --opportunity to the appellant to meet the respondent's case.
(ii) That even otherwise, the application was not competent for the following reasons
(a) That the application was not competent inasmuch as the respondent was in occupation of one of the flats in the building in question.
(b) That the respondent having already filed the application for ejectment against all the four tenants of the four flats including the appellant under section 15 of the Ordinance could not have pressed into service section 14 of the Ordinance.
(c) That in fact there was no reliable evidence before the learned Rent Controller that the respondent had attained the age of 60 years.
(e) That in fact the application was mala fide inasmuch as the respondent attempted to get the plot commercialized from K. D. A. Which request was rejected.
(b) Whereas Mr. Munir Malik learned counsel for the respondent has urged the following points.
"(i) That under section 14 of the Ordinance the learned Rent Controller was not competent to enquire into the merits of the respondent's claim for personal requirement or into the question of bona fide, but only jurisdiction vested with the learned Rent Controller was to enquire into -"he following jurisdictional facts.
(a) Whether the respondent had attained the age of 60 years.
(b) Whether she had served a requisite notice of 2 months under section 14 of the Ordinance before the filing of the application.
(c) Whether the respondent was in possession of any other building owned by her, and.
(d) Whether she had rented out the building after attaining the age of 60 . Years. .(ii) That under section 14 of the Ordinance there is no statutory require--ment to hold any formal inquiry, but in view of the principles of natural justice, the Rent Controller was obliged to hear the parties before passing the order under appeal against the appellant.
(iii) That in fact the learned Rent Controller had given a reasonable opportunity to the appellant before passing the order under appeal.
(iv) That on merits the appellant had no defence."
(3)(a) Reverting to the first contention of the learned counsel for the appellant that the learned Rent Controller had not provided a reasonable opportunity to the appellant to meet the respondent's case, it may be observed that the above contention can be examined with the contentions of the learned counsel for the respondent referred to hereinabove in para. 2 (b). In order to appreciate the above contentions, it will be necessary to refer to some of the provisions of the Ordinance and to compare the. Same. It may be observed that section 14 provides a speedy remedy to a landlord, who falls within the category of any one of the following persons; "(i) A widow.
(ii) A minor whose both parents are dead.
(iii) A salaried employee due to retire within six months or has retired.
(iv) A person who is due to attain the age of 60 years within the next 6 months or has attained the age of 60 years.
(b) Before invoking the provisions of section 14 a person falling within one of the categories referred to hereinabove, has to fulfil the following requirements "(i) To show that he or. She has not rented out the. Building after he or she has retired or has attained the age of 60 years, or has become widow or orphan as the case may be.
(ii) To show that he or she is not in occupation of a building owned by him or her in any locality.
(iii) To show that he or she has already served a requisite notice of 2 months under section 14 before filing the application before the Rent Controller."
(c) Reverting to the above first requirement, it may be observed that the proviso to subsection (1) of section 14 was substituted by the Sind Rented Premises Second (Amendment) Ordinance, 1980 providing the above requirement. It may further be observed that prior to the above amendment the proviso read as follows :- .
"Provided that nothing in this subsection shall apply where more than 6 months have elapsed since the landlord has retired or attained the age of 60 years, or as the case may be, has become widow or orphan. Whereas substituted proviso reads as follows; 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, has become widow or orphan."
It may be noted that the aforesaid amendment has made substantial difference as to the period for availing the remedy provided for under section 14. Whereas prior to the above amendment a landlord falling within any of the above categories could file an application within 6 months from the date of his qualifying to one of the above categories. However, under the above substituted proviso no such period has been specified, which means that an application under section 14 can be filed even after expiry of more than 3 years after qualifying to any of the categories specified in the above section, the only requirement under the substituted proviso is that a landlord within the .Ambit of the above section should not have been let out after, qualifying to one of the above categories.
It will not be out of place to observe that the original proviso to subsection (1) of section 14 of the Ordinance quoted hereinabove was more just and equitable, whereas, the substituted proviso seems to be very harsh,
(d) It may also be observed that upon receipt of an application from a landlord under section 14, the Rent Controller is required to order the eviction of the tenant in a summary manner. The words used are ,"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."
(4)(a) If the above provisions of section 14 of the Ordinance are viewed in comparison to sections 15, 19 and 21, it will be evident that an applica--petition under section 14 has been placed entirely on a different footing than the other applications under the Ordinance. It may be pertinent to observe that under section 15, it is provided that where a landlord seeks to evict a tenant on any one or more of the grounds mentioned therein, he shall make an application to the Rent Controller, who upon being satisfied may order ejectment. Whereas section 19 provides the procedure for the trial of a rent application filed under section 15 or under any other section of the Ordinance; but an application under section 14 has been, expressly exihuded. Section 19 contemplates the filing of a written reply by the tenant, recording of the evidence of the parties and of their witnesses by the Rent Controller. However, it has been provided that examination-in- chief of the parties and their witnesses shall be contained in affidavits and whereas they will be cross-examined by the other party before the Court. Further. More, section 20 confers on the Rent Controller the power of a civil Court for the purpose of summoning and enforcing the attendance of any person, compelling production or discovery of the documents, inspecting the site and issuing of 'commission for examination of witnesses or documents Whereas section 21 provides the right of appeal to an aggrieved party. It has been expressly provided that no injunction shall be granted if the appeal has been preferred from the order passed under section 14. The appellate Court has been given the power to pursue the record of the case and after giving the parties an opportunity of being heard, if necessary, after making such further inquiry either by himself or by Controller make a proper order which shall be final.
(b) After having considered some of the relevant provisions of the Ordinance, the question which emerges for consideration is, whether the Rent Controller is obliged to hold any inquiry in an application under section 14 of the Ordinance. It may be pertinent to observe that it has been even conceded by the learned counsel for the respondent that/the Rent Controller is to satisfy himself on the jurisdictional facts, referred to herein--above, in pars, 2(b) (i). It cannot be denied that the Rent Controller cannot satisfy himself upon the above jurisdictional facts without holding some inquiry. It may also be pertinent to note that though section 21 makes a distinction between an appeal against an order passed under section 15 or under any other section of the Ordinance on the one hand and an appeal against an order under section 14 as pointed out hereinabove inasmuch as in the former case the appellate Court has been given the power to grant an injunction. For staying further proceeding or action, but in the latter case there is an express prohibition against the granting of such an injunction. However, there is no distinction between the above two categories of the appeals so far as the power of the appellate authority is concerned in respect of the manner of trial or the power to pass final order. Under subsection (3) of section 21, it has been expressly provided that the appellate authority shall after perusing the record of the case and giving the parties an opportunity of being heard, if necessary after making such further inquiry either by himself or by the Controller, make an appropriate order. In other words, the appellate authority in an appeal arising out an application under section 14 can make further inquiry itself or through the Rent Controller. The use of the words `further inquiry" in subsection (3) of section 21 makes abundantly clear that even in an application under section 14 some inquiry is to be held by the Rent Controller before passing the ejectment, order. However, the nature of the inquiry will vary from case to case and will depend on the nature of the pleas raised by a tenant. For example if a tenant does not dispute the factum of the receipt of the requisite notice under section 14 or the factum that the landlord has attained the age of 60 years or the fact that the landlady has become widow or the fact that a minor landlord has become orphans, there will be no need for the Rent Controller to hold an inquiry on the above points. In such a case is the only plea raised by the tenant is that the landlord has rented out the building after attaining the age of 60 years, or after becoming widow or after retiring from service or after becoming orphan, in that event the only inquiry which will be required to be held will be in respect , of the above question. As to the manner of such an inquiry, it may again be mentioned that whereas section 19 of the Ordinance contemplates a regular trial of an application under section 15 or under any other section, namely, filing of a written reply and the recording of evidence etc. But above section 19 expressly excludes an application under section 14 from its ambit. It must therefore, follow that in an application under section 14, it has been left to the discretion of the Rent's Controller and to the appellate authority to hold an inquiry in such al manner as it may deem fit so long as it provides a reasonable opportunity t to both of the parties.
(c) Keeping in view the above provisions of the Ordinance, I may advert. To the question as to whether in the instant case a reasonable opportunity in fact was given to the appellant in context with the pleas raised by him. It was urged by the learned counsel for the appellant that the appellant was served with the notice of the application without its copy and that when he made the aforesaid application under section 151, C. P. C. He was only given 24 hours to file the objections without a copy and there--fore, the appellant did not have sufficient time to prepare the defence and to raise the pleas, which would have been raised. On the other hand it was urged by Mr. Munir Malik that the application under section 14 was preceded by two and a half months' notice and, therefore, it cannot be urged that the appellant did not have a reasonable opportunity. Since there is no legal requirement to provide a particular time for filing objections to an application under section 14 and as it is left to the discretion of the Rent Controller it cannot be said that the order of the learned Rent Controller on 16-12-1980 allowing 24 hours to the appellant to file objection was illegal. Factually, the appellant had filed objections not on 17-12-1980 as was ordered but on 18-12- 1980. In my view the above time allowed by the Rent Controller to the appellant for filing objection is to be viewed with the fact that the application under section 14 was preceded by a statutory notice of 2-1/2 months instead of 2 months under the aforesaid section. It seems that a statutory notice of two months has been provided under section 14 in order to put the tenant to notice. Furthermore, the contents of the application were more or less reproduction of the contents of the notice. The notice of the application was served upon the appellant on 10-12-1980 through registered A/D, whereas the date of hearing was 16-12-1980 as pointed out hereinabove. In this view of the matter, it cannot be urged that the learned Rent Controller has acted illegally or unreasonably by providing 48 Sours to the appellant to file objections. However, I may observe that it would have been better, if the learned Rent Controller would have given a longer period than 24 or 48 hours to the appellant for the aforesaid purpose.
(d) It may also be observed that the learned counsel for the appellant has referred to the definitions of - the term "reasonable" and also of the word, "summarily" defined in Ballentine's Law Dictionary, Third .Edition, which reads as follows :- "Reasonable means.-Not extreme. Not arbitrary capricious, or con--fiscatory. (Public Service Comn. v. Havemeyer 296 U S 506, 80 L Ed. 357-=36 S Ct. 360).
What is reasonable depends upon a variety of considerations and circumstances. It is an elastic term which is of uncertain value in a definition. (Sussex Land and Live Stock Co. v. Midwest Refining Co. (C A 8 Wyc) 294 F 597, 34 AIR 249, 257).
Summarily, Expeditiously; dispensing with formalities which merely delay action.
A statute giving the orphans' Court the power `summarily' to direct payment of the prorated portions of an estate tax will be constructed as not dispensing with the essential elements of due process as regards notice and opportunity to be heard. (Moreland's Estate, 351 Pa 623, 42 A 2d 63=1 A L R 2d 977)."
On the basis of the above definitions, it has been urged. By him that 24 hours time cannot be treated a reasonable opportunity. Whereas Mr. Malik has referred to the definitions of the words "summary" and "manner" used in section 14 given in Ballentine's Law Dictionary .3rd Edn., p. 7?2 and Black's Law Dictionary Revised 4th Edn., p. 1369, which are as follows :- "Ballentine's Law Dictionary manner means "manner.-Way of perform--ing of executing ; method ; custom ; habitual practice. People ex eel. Ahrens v. English, 139, 111, 622, 629." (Black's Law Dictionary) summary means; An a Short concise State v. Batsman, 124 Ohio St. 24, 176 N E 664, 665. Immediate, peremptory : off hand; without a Jury ; provisional ; statutory. The term used in connection with legal proceedings means a short, concise. And immediate proceeding. Vance v. No.1,
143. La, 477 a 78 So. 741, 742 ; and trial of a "summary" character is a trial without a jury. Stare v. Icing, 137 Tenn. 17=191 S W 352, 354 ; City of St. Paul v. Robinson, 129 Minn. 383, 152 N W 777 Ann. Cas. 1916, 845."
(e) It may be pertinent to refer to - the definitions of the other terms, in which the word "summary" has also ' been used with reference to certain proceedings and which have been defined in the Ballentine's Law Dictionary, namely, summary abatement, summary contempt proceedings, summary conviction, summary Court-martial, and summary dismissal which read as follows :- "Summary abatement.-The abatement of a nuisance without judicial proceeding, even without notice or hearing, often by a destruction of the offending thing or structure. 39 Am J 1st Nuis 183 et seq.
Summary contempt proceeding.-A proceeding for an adjudication of contempt for a direct contempt in the immediate presence of the Court, without pleading, affidavit, or formal charges, albeit the accused maybe entitled to a hearing or at least opportunity to make an explanation of his conduct under oath, 17 Am. 2d Contempt 86-88.
Summary conviction.-Convicting an accused without giving him the benefit of a trial summary court-martial. The lowest in the rank of courts-martial, conducted before one commissioned officer, limited in jurisdiction to offences of a minor or petty nature of which enlisted men, not commissioned officers, stand accused.
Summary dismissal.-A dismissal of a civil service employee without giving him opportunity to defend himself or a hearing of any kind. Anno: 131 AIR 396."
A perusal of the above-quoted definitions of the other terms referred to hereinabove, indicate that the word, "summary" in a fit case may mean that an action can be taken even without giving proper oppzrtunity to defend. However, in view of the language used in section 14 read with section
21. J have already held hereinabove that in an application under section 14 an inquiry is to be held, but the nature of such an inquiry will vary from case to case. In this connection, it may also be pertinent to refer to recent case of English Court of Appeal, namely, P. B. J. Devis Manufacturing Col Ltd. v. Faha Fahn (Claimant) (1967)1 W R 1059in which the farts were that the execution creditor obtained a decree against the defendant for the goods sold and delivered for a sum of -- 263-14-
6. In pursuance of the above decree, a writ of execution was issued. Thereupon, sheriff took possession of goods lying in flat No. 3 Queens Court, 33 Lordship Lane, No. 16, wide of the judgment- debtor Mrs. Fahn claimed that all the furniture and contents of the flat belonging to her.
Whereupon, the Sherrif took out an interpleader summon and served the execution creditor. When the matter was placed before the Master it was to be determined summarily under Order XVII, rule 5(2), the solicitor for the execution-creditor asked for special appointment which could not be granted as it was not convenient to the Court. The Master decided to deal with the matter straightaway and, thereafter allowed the claim of the judgment-debtor's wife. The Court .Of Appeal set aside the above order and held that the word "summarily" used in Order XVII, rule 5 did not mean that the Master could determine himself without directing an issue and that the proper practice was for a special appointment to be given in order that there could be discovery of documents and oral evidence by the claimants with cross--examination.
(f ) The question whether evidence is to be recorded or not in a case where the proceedings are to be finalised summarily will depend on the language employed in the relevant provisions of law and also the issue involved before the Court or the Tribunal before which the proceedings are pending.
No general proposition of law can be laid down holding either way namely, that no evidence is required to be recorded in a case which is to be decided summarily or evidence is to be recorded in such a case.
(g) Mr. Munir Malik, learned counsel for respondent has referred to the case of University of Dacca and another v. Zakir Ahmed PLD1965SC90where Hamoodur Rehman, J. While considering the question of natural justice quoted with approval the following passage from the judgment of Tuker, L. J., given in the case of Russel v. Duke of Norfolk "the requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth. Nevertheless, the general consensus of judicial opinion seems to be that, in order to ensure the "elementary and essen--tial principle of fairness" as a matter of necessary implication, the person sought to be affected must at least be made aware of the nature of the allega--tions against him, he should be given a fair opportunity to make any relevant statement putting forward his own case and ."to correct or controvert any relevant statement brought forward to his prejudice". Of course the persons, body or authority concerned must act in good faith, but it would appear that it is not bound to treat the matter as if it was a trial or to administer oath or examine witnesses in the presence of the person accused or give him facility for cross-examining the witnesses against him or even to serve a formal charge-sheet upon him. Such a person or authority can obtain information in any way it thinks fit, provided it gives a fair opportunity to the person sought to be affected to correct or contradict any relevant statement prejudicial to him. In other words", in order to act justly and to reach just ends by just means "the Court insist that the person or authority should have adopted the above elementary and essential principles".
From the above-quoted extract it is clear that even when the principles[ of natural justice is pressed into service the manner of holding of an inquiry or conducting of the proceeding is entirely left to the, authority concerned. However, what is required is that the affected party should be given a fair opportunity.
5. (a) Reverting to the merits of the case, it may be observed that the appellant in his objections had raised the following pleas.
(i) That the application under section 14 was not competent as the application under section 15 was already pending.
(ii) That the respondent was in possession of one of the flats through his relation.
(iii) That the respondent's son owns flats and shops mentioned in the objection.
It may be noticed that it was not disputed by the appellant that he had received two and a half months notice under section 14 or that the respondent had not attained the age of 60 years. The only two questions before the learned Rent Controller were whether the application under section 14 was competent in view of the fact that prior to the filing of the above application the respondent had already filed application under section 15 of the Ordi--nance and secondly whether the respondent was in possession of another flat through her relation.
(b) As regards the above first contention, it may be observed that the learned counsel for the appellant has not been able to point out any provision of law barring the filing of an application under section 14 of the Ordinance during the pendency of an application under section 15 of the Ordinance. In the absence of any bar, it cannot be urged that the respondent's application under section 14 was not competent.
(c) Reverting to the-aforesaid second question, it may be noticed that the learned Rent Controller adverted to this aspect and has held that the appellant failed to prove the above allegation inasmuch as he had not produced any documentary evidence, for example P 1 to prove that the respondent was in possession of one of the flats. It has been vehemently urged by Mr. Alvi, learned counsel for the appellant that from PT-1, it could not have been proved that in fact the respondent was in possession of one of the flats. In support of the above contention, he has placed a certified copy of PT-1 on the record of the above appeal to indicate that it does not contain any column giving the name of the occupants. This appears to be correct that the above certified copy does not contain the names of the occupants. But it cannot be denied that under the Excise and Taxation Rules certain concession is admissible in case of a self-occupied property by the owner.
The above PT-1 does not show that any of the portion of the property was in occupation of the respondent. Be that as it may, it may be observed that in the appellant's objection, the averment was not that the respondent was in fact in possession of one of the flats, but the averment was that the respondent was in possession of one of the flats through her relation. The latter averment impliedly admits the factum that the respondent was not in physical possession of the flat, but some one else was in possession of the same on behalf of the respondent. In other words, the plea of Benami was raised. In my view the learned Rent Controller could not have adjudicated upon the question of Benami in an application under section 14 which contemplates summary disposal.
Even otherwise, above plea was vague inasmuch as even the name of the alleged relation was not disclosed. Furthermore, the above plea is belied by the appellant's averment before this Court that the respondent had also filed applications under sections 15 against the remaining three tenants in respect of the remaining 2 fiats and that he has also filed applications under section 14 against the remaining tenants except Mr. Mansoor Maqbool against whom, such an application was not competent for the reason that the flat was let out to him after the respondent had attained the age of 60 years. In this view of the matter no exception can be taken to the learned Rent Controller's finding on the above point.
6. However, Mr. Alvi has taken additional points before me noticed hereinabove in para 2(a)(li)(c)
(d) and (e).
(a) Reverting to the learned counsel for the appellant's contention that there was no reliable evidence before the Rent Controller to come to the conclusion that in fact the respondent had attained the age of 60 years, in my view there was sufficient evidence before the learned Rent Controller namely, photostat copies of the passport, Matriculation Exam certificate, Primary School Certificate. It was contended by Mr. Alvi that in the Matriculation certificate the respondent's name shown was Sultan Jehan Aflatoon, whereas in the Primary School certificate and in the Passport the name shown was 'Sultan Jehani'. In my view the above discrepancy is explainable inasmuch as the respondent's father's name shown in the Matriculation Certificate as well as in the Primary School Certificate is Shaikh Muhammad Aflatoon and, therefore, use of the word "Aflatoon" against the respondent's name in the Matriculation certificate is plausible.
(b) With reference to the contention that the respondent after attaining the age of 60 years had let out one of the flats to Mr. Mansoor Maqbool, it may be observed that no such plea was raised before the Rent Controller. However, it was contended by Mr. AM that this was not raised because of the. Short time available to the appellant for filing the objections. Be that as it may, it may be stated that the learned counsel for the respondent before me had not disputed the factum that in fact one of the flats was let out to Mr. Mansoor Maqbool in 1974. However, his contention was that since the flat in question was not let out to the appellant after the respondent had attained the age of 60 years, the fact that one of the flats was let out in 1974 would not debar the respondent from filing an application under section 14 of the Ordinance. In support of the above contention Mr. Malik has invited my attention to the words "the building" used in section 14. It may be observed that section 2(a) defines the term "building" as means "any building or part thereof" and therefore the flat can be 'the building' within the purview of section 14. 1 am, therefore, inclined to agree with the learned counsel for the respondent that the bar contained in proviso to subsection (i) of section 14 of the Ordinance is relatable to the building which is the subject matter of an application under section 1.4. In other words if the respondent would have let out the flat in question to the appellant after attaining the age of 60 years she would not have beet entitled to press into service section 14, but since admittedly the flat in question was let out in 1972 and whereas the respondent had attained the age of 60 years in 1973, in my view the bat provided in the above proviso cannot be pressed into service.
(c) Reverting to Mr. Alvi's contention that' the respondent's application was mala fide inasmuch as she attempted to get the plot in question commercialised, it will suffice to observe that it is an admitted position that her request to commercialise was refused prior to the filing of tho of the application. Furthermore, the question of mala fide and bona fide could not have been gone into by the learned Rent Controller in view of the language employed in section 14 of the Ordinance in contrast to the wordings used in section 15, whereas former section does not require satisfaction of the Rent Controller on the question of personal bona fide requirement, whereas under the latter section the Rent Controller is obliged to go into the said question.
7. In view of the above discussion I do not find any merit in the appeal and hence the same is dismissed with no order as to costs. However, I grant one month's time from today to the appellant to hand over vacant possession to the respondent.