1. This appeal under section 21 the Sind Rented Premises Ordinance, 1979 (hereinafter to be referred as the Ordinance) has been filed against the order of 7th Senior Civil Judge and Rent Controller, Karachi, directing the eject--ment of the appellant from a shop premises bearing No. 265, Pir Ellahi Bux Colony, Karachi, under section 14 of the Sind Rented Premises Ordinance, 1979. The admitted position in the case is that the respondent who became a widow on 15-10-1980, served a notice through her counsel on 15-11-1980, informing the appellant that she needed the premises in his occupation for her personal use and called upon him to vacate the same and hand over its possession within two months of the service of the notice. The notice was duly received by the appellant but no reply was sent to it. As the appellant failed to vacate the premises within the time mentioned in the notice an application under section 14 of the Ordinance was filed against the appellant for his eviction. The Rent Controller after holding enquiry directed the ejectment of the appellant from the premises which is challenged in this appeal.
2. I have heard Mr. Maroof Ali Khan and Mr. Asif A. Zahidi, the learned counsel for appellant and respondent respectively, Mr. Maroof Ali Khan has raised the following contentions before me :-
(1) That in view of the definition of `building' as given in section 2(a) of the Ordinance an application for eviction of a tenant under section 14 of the Ordinance can be made only in respect of a "residential build--ing" and a non-residential building is outside the preview of section 14 of the Ordinance and, therefore, the application of respondent for evic--tion of appellant from the shop was not maintainable.
(2) That the notice served on the appellant by the respondent calling upon him to vacate the premises was invalid as the shop number was wrongly mentioned in it and, therefore, the application under section 14 was not maintainable due to non-compliance of the provisions of section 14 of the Ordinance.
(3) That alternatively the premises in occupation of the appellant being the part of a residential house and the evidence on record having disclosed that the respondent was the owner of another building of same description in the locality, the application filed by her under section 14 was hit by subsection
(2) of section 14 of the Ordi--nance.
(4) That the landlady having relet another premises namely a shop in possession of another tenant Jabbar Ahmad after having become a widow the application was not maintainable under the proviso to sub--section (1).
3. After a careful examination of the above contentions I am of the view that this appeal must fail.
4. It is contended by the learned counsel for the appellant that the expressions "building" and "premises" are assigned different meaning in the Ordinance. In section 14, it is urged by the learned counsel, the expression "building" has been used deliberately while in section 15 the expression "premises" is used. It is accordingly contended by the learned counsel that this deliberate use of the expression "building" in section 14 was intended to give a restricted meaning to the expression "building" which referred only to a "residential building". The two expressions "building" and "premises" are defined in subsection (a) (b) of section 2 of the Ordinance respectively as follows: "(a) "building" means any building or part thereof, together with all fittings and fixtures therein, if any, and includes any garden, garrage, outhouse and open space attached or appurtenant thereto ; .
(b) "premises" means a building or land, let out on rent, but does not include a hotel ;".
5. The Ordinance came into effect on 21-11-1979 and it repealed the Sind Urban Rent Restriction Ordinance, 1959 (which will be referred hereinafter as the repealed Ordinance) which was then occupying the field on the subject. It will therefore, be quite advantageous to examine here some of the relevant definitions given in the repealed Ordinance. Subsections (a), (d), (f) and i,h) of section 2 of the repealed Ordinance defined the expression "building", "non-residential building", "rented land" and the "schedule building" separately as under:-- "(a) "building" means any building or part of a building let for any purpose, whether being actually used for that purpose or not, including any land, godowns, outhouses, together with furniture let therewith but does not include a room in a "Sarai", hotel, hostel or boarding house ;
(d) "non-residential building" means a building being used solely for the purpose of business or trade ;
(f) "rented land" means any land let separately for the purpose of being used principally for business or trade ;
(h) "scheduled building" means a residential building which is being used by a person engaged in one or more of the professions specified in the Schedule to this Ordinance, partly for his business and partly for his residence ;".
6. A comparison of the definitions in the two statutes will show that whereas in the repealed Ordinance the "non-residential building" and "scheduled build--ing" were defined separately; in the Ordinance only "building" and "premises" have been defined. The expression "building" as defined in section 2 (a) of the Ordinance means any building or part thereof together with all fittings and fixtures therein and it further includes any garden, garrage, outhouses and open space attached or appurtenant thereto. The contention of the learned counsel for the appellant is that since the definition of building in--cludes garden, garrage, outhouse and open space attached thereto therefore, it can only mean a "residential building" as garden, garrages, outhouses and open space are never part of a commercial building. The contention of the learned counsel however overlooks the earlier part of the definition which says that building means "any building or part thereof, together with all fittings and fixtures therein, if any. The word "building" has been defined in Webster's new World Dictionary as meaning anything that is built, as a house, factory etc. I am, therefore, of the view that the. Word "building" as defined in section 2 (a) of the Ordinance cannot be interpreted in a way so as to mean only a "residential building". There is no justification or warrant on the language of this section to give such a restricted meaning to the defi--nition of "building" In my view the word "building" used in section 14 means any kind of building which will include both a residential as well as a commercial building. The view taken by me also finds support from the fact that in the repealed Ordinance the expression "building", non-residential "building" and "scheduled building" were separately defined, while in the Ordinance only "building" is defined. I am accordingly of the view that the application of respondent under section 14 of the Ordinance for eviction of appellant from a shop premises was maintainable is law.
7. The second contention of the learned counsel for the appellant is that in the notice served upon the appellant by the respondent asking him to vacate the premises before institution of the application under section 14 of the Ordinance, the shop in possession of appellant was described as shop No. 2 whereas according to the tenancy agreement produced in evidence before the Rent Controller the shop in occupation of appellant was assigned No. 1. This discrepancy according to the learned counsel rendered the notice invalid. It is accordingly contented that the requirement of law regarding service of notice before institution of application under section 14 was not fulfilled and as such the application filed by respondent before the Rent Con--troller was incompetent. The contention of the learned counsel has not impressed me at all. In the written statement filed in the rent case before the Controller the appellant stated that he was not aware of the number of shop.
8. There appeared to be no controversy with regard to the number or identity of the shop before institution of the ejectment case, admittedly the appellant is in the possession of one shop in the premises bearing number 562. It is admitted before me that the notice calling upon the appellant to vacate the shops in his occupation was duly served. The appellant was therefore informed by the respondent that the shop in his occupation was required by the respondent. The appellant has not been able to show that any prejudice was caused to him by incorrect mention of shop number.
9. In these circumstances the discrepancy in the number of shop if any was of no significance at all.
10. Whether the shop in occupation of appellant carried the number as I or 2 was quite immaterial for the purposes of decision of the application under section 14 of the Ordinance as the order of ejectment against the appellant was made only in respect of the shop which was in his occupation. I am, therefore, of the view that the notice served by the respondent upon the appellant before institution of the - ejectment application substantially complied the requirement of section 14 of the Ordinance.
11. The next contention of the learned counsel is that the respondent admit--ted in her evidence that she owned another premises bearing No. 561 Pir Illahi Bux Colony and a building in Saddar known as Gul-e-Rana Building. It is accordingly contended that the landlady having owned these two buildings was debarred from invoking the provisions of section 14 of the Ordinance. Subsection (2) of section 14 of the Ordinance is in the following terms :- "(2) The landlord shall not be entitled to avail the benefit of subsec--tion (1), if he is in occupation of a building owned by him in any locality."
12. A plain reading of the above provision of law will show that a landlady will be disentitled to apply under section 14 of the Ordinance only if it is shown that he or she is in occupation of another building owned by him in any locality. The learned counsel for the appellant submitted that the word `occupation' used in section 14 is not restricted to physical occupation of the landlord but would also include his constructive possession over a building. The contention of the learned counsel has no substance for even a building in occupation of the tenant against whom the landlord applies for eviction under section 14 will be deemed to be in the constructive possession of the landlord and on the reasoning advanced by the learned counsel the applica--tion for eviction could be defeated for that reason. Before an application of the landlord is held to be not maintainable under section 14(2) of the Ordi--nance two facts have to be positively proved by the tenant. Firstly it must be shown that the landlord is in actual and physical occupation of another building in any locality of the same type and class for which he has applied for eviction of the tenant and secondly the landlord owned such a building. In the present case the appellant has not been able to show from the record that the respondent was in actual and physical occupation of any other building of that class in locality owned by her. J, therefore, reject the conten--tion of appellant.
13. It is next contended by the learned counsel for the appellant that the shop in respect of which the application for ejectment under section 14 was filed by the respondent was a part of the house was in occupation of the landlady and therefore the shop may be treated as a residential premises and as the application of the respondent was for eviction of appellant from a commercial premises it should have been dismissed by the Rent Controller. Reliance is placed by the learned counsel on the case of Muhammad Amin Beg v. Pir Muhammad Khan (1). This was a case under the repealed Ordinance and it was found by the learned Single Judge (as he then was) in the case that a house let for composite purposes namely partly for business and partly for residence does not become a non-residential building and a landlord can seek eviction of tenant from such building for his bona fide and personal use for residential purposes. This case is hardly of any assistance to the learned counsel. From the definition of building as given in the Ordinance it would appear that the building not only means the whole building but it also means any part thereof. It has come on record that the shop in occupation of appellant is exclusively used for commercial purpose and was let out to appellant as such. The shop, therefore shall be deemed to be a building which was used for commercial purpose and application for its possession as a commercial building was maintainable in law. It may be true that the shop in occupation of appellant was carved out of building No. 562, P.1. E. Colony which was a residential house but for that reason alone that shop (1)
14. PLD 1965 Lab. 385 could not be treated as a residential building. The fact that the shop in occupation of appellant is an independent unit and is exclusively used for commercial purpose is sufficient to hold it a commercial building. The view I have expressed finds full support from the case of Gul Afzal Khan v. Muhammad Hanif Arif PLD 1979 Lab. 398. I accordingly hold that the premises let out to the appellant was a commercial building and therefore, the respondent's application for its occupation under section 14 of the Ordinance was competent.
15. The next contention of Mr. Maroof Ali Khan is that in another eject. Went case which was instituted by the landlady against another tenant of the same building she accepted enhanced rent and compromised the ejectment order passed against that tenant. This according to the learned counsel amounted to reletting of the premises after she became a widow and there--fore the application was hit by the proviso to subsection (1) of section 14 of the Ordnance. The proviso to subsection (1) is in the following terms :- "1 (Provided that nothing in this subsection shall apply where the land--lord 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)."
16. A reading of the above proviso shall show that the reletting of the premises by the landlady or renting out the premises for which the applica--tion has been made under section 14 of Ordinance.
17. The word used in the proviso is "the building". In my view the word "the building" in this proviso refers to the building for Which application under section 14 is made for eviction of the tenant and is not extendable to the letting out of any other premises by the landlady. Apart from it I am also of the view that in the present case the landlady did not let out the shop to any tenant after becoming a widow. The compromise entered into between the landlady and a sitting tenant in a pending proceeding could have been for a variety of reason and did not necessarily amount to reletting of the premises. In the end Mr. Maroof Ali Khan also contended that the Rent Controller before passing an order of ejectment under section 14 of the Ordinance, was bound to enquire into the genuineness of the needs of landlady. In my view pro--visions of section 14 of the Ordinance does not contemplate an enquiry by the Rent Controller into the genuineness or otherwise of the needs expressed by a landlord. The enquiry before the Rent Controller under this section must confine to the objections raised by a tenant as to the jurisdictional facts . . . .On a plain reading of section 14, it is clear that. An applicant under this section has only to show that she is a widow or a minor whose both parents are dead, or he or she is salaried employed due to retire within six months or had retired or he or she is a person who is due to attain the age of 60 years within the next six months or has attained the age of 60 years. The further requirement of law is that before institution of application under this section a notice is to be served by such landlord on the tenant informing him that he or she needed the building for personal use and call upon him to deliver the possession of the premises within the time fixed in the notice which should not be less than two months. After reading the above provisions of law I am in no doubt that no enquiry as to the genuineness or bona fides of the requirement urged by a landlord can be gone into in proceedings under-section 14 of the Ordinance. The enquiry under this section must confine to such facts which are necessary to give jurisdiction to Rent Controller to proceed under this section, such as the person applying under this section is a widow, is a salaried employed due to retire within six months, is a min whose both parents are dead, is a person who is due to attain the age of sixty within next months or has already attained the age of sixty and lastly that notice calling upon the tenant to vacate the premises within two months o the receipt of the notice has been served.
18. The cope of enquiry under this section will also include if it is so alleged by the tenant, the determination by the Controller whether the landlord after having attained the age of sixty years or become a widow or after having retired had rented out the building in respect of which the application is filed under section 14 of the Ordinance, or is in occupation of a similar building owned by him or her in any other locality. As soon as these facts are determined by the Controller in favour of the landlord, he is bound to make an order for eviction against the tenant and no further enquiry as to the genuineness or otherwise of the need of the landlord can be made by him. If the contention of the learned counsel for the appellant, that the Rent Controller is bound to enquire into the genuinenes of the needs of a landlord before passing an order of eviction under section 1 of the Ordinance is accepted, there will be no difference between the proceedings under sections 14 and 15 of the Ordinance which is clearly not the con--tention of the law giver. The manifest intention of the Legislature in eviction section 14 of the Ordinance is to provide a summary remedy to certain clan of person without holding enquiries into their needs and if the contention o the learned counsel for the appellant is accepted this very object will defeated. In the case before me it is not in dispute that the respondent became a widow on 15-10-1980. I have' reached the conclusion that the' notice served on the appellant on 15-11-1980 substantially complied with the requirements of subsection (1) of section 14 of the Ordinance. The contention that the landlady has rented out the building after become widow, and that she is in the occupation of another building of the same class in any locality has boon repelled by me. In these circumstances I find that the order of eject-- ment made by the Rent Controller was justified and no exception can be taken to it. After 1 had dictated the judgment Mr. Maroof Ali Khan requested that sufficient time be granted to appellant to vacate the premises so that his client may avail of the remedy before the Supreme Court against this judgment. The points decided by me appear to be of some importance and are likely to affect quite a good number of cases. Mr. Asif A. Zahidi, the learned counsel for respondent also agree that it is a fit cast in which sufficient time be allowed to the appellant to vacate the premises so that he may avail of the remedy before the Supreme Court, if he so desires. I accordingly with the consent of the Warned counsel allow four months time to appellant to vacate the promises.