' Both the appeals referred to above have been filed under section 21 of the Sind Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance). The appellant in F. R. A. No, 497 of 1981 are the landlord and owner of building situated on Plot No, 202/0/2, P. E. C. H. S., Karachi, which consists of four tenements. He had filed applications under section 14 of the Ordinance claiming to be a salaried amployee, due to retire and the 2nd Senior Civil Judge and Rent Controller, Karachi in Rent Case No, 3120 of 1981 rejected his application for ejectment of respondent S. Ziaul Hassan, by his order, dated 31-8-1981 against which he has filed appeal ; whereas his application in Rent Case No, 4995 of 1981 was allowed by order dated 27-5-1982 ejecting the tenant (Aurangzeb Dar), who has filed F. R. A. No, 735 of 1982 against the same. Since both the appeals are in respect of tenements in the same building and involved claim of the landlord to the benefit of section 14 of the Ordinance, they are being dealt with together.
2. Section 14 of the Ordinance, regarding interpretation of which, contentions have been raised by the learned counsel for the parties, reads as under :- "14. Delivery of vacant possession.
' Provided that nothing in this subsection shall apply where more than six months have elapsed since the landlord 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."
3. In the instant case before the landlord can claim the benefit of section 14 he has to show that he being a salaried employee was due to retire within the next six months, or had retired. It is, therefore, to be considered whether the landlord at the time of filing the applications under section 14 of the Ordinance satisfied the pre-condition. Application under section 14 of the Ordinance against tenant S. Ziaul Hassan (respondent in F. R. A. No, 497 of 1981) was filed on 18-7-1981 and against tenant Aurangzeb Dar (appellant in F. R. A, No, 735 of 1982) on 12-11-190: 1t i4 accepted factual position that the Establishment Division of the Government of Pakistan had issued Notification No, 14/ 24/ 79-C. HI (A), dated 13-11-1980 in Gazette of Pakistan published on December 3, 1980 which reads as under:- "No, 14/24/79-C. III (A).-Whereas Shah Masood Alam, Section Officer (Grade-18), Aviation Division has completed 25 years of service qualifying for pension or other retirement benefits; now, therefore, in exercises of the powers conferred by clause (ii) of section 13 of the Civil Servants Act, 1913 (LXXI of 1973), the President is pleased to direct in the public interest that Shah Masood Alam, Section Officer, shall retire from service on 16-11-1980 or if any leave preparatory to retirement is applied for by him within one month of the date of this notification and granted to him, on the expiry of such leave."
' It is the case of the landlord that he had proceeded to Saudi Arabia for perfomance of Haj on 11- 10-1980 and the notification regarding his retirement was received by him on 10-12-1980 after which he applied for L. P. R. In his affidavit in rejoinder he had stated before the learned Controller that retirement was actually to take place on 13-11-1981. It is also obvious from the correspondence copies of which were brought on the record that admissibility certificate in respect of leave was sought from the Accountant-General, by the Ministry of Defence by letter, dated 6-8-1981 copy of which is on the record.
4. In the impugned order of the learned Controller dated 31-8-1981, it was held that the landlord/applicant had retired in accordance with Notification No, 14/24/79-C. III (A) with effect from 16-11-1980, since the notification mentioned that he shall so retire and that if any leave preparatory to retirement is applied for by him within one month of the notification he would retire on the expiry of such leave. It was, therefore, held by the learned Controller that since the date of notification was 13-11-1980 and he was obliged to apply for L. P. R. Up to 12-12-1980 and had not done so, therefore, he stood retired from the Government service on 16.11-1980.
5. The question about the date of retirement of the landlord is a matter of fact and further on the basis of the date of appointment it was for the learned Controller to consider whether he could avail of the benefit of the provisions of section 14 of the Ordinance. It is clear from the copies of the correspondence on the record that landlord had taken stand that he had applied for L. P. R. And, therefore, he stand retired on 16-11-1981 after expiry of the L, P. R. It is also apparent that the landlord/applicant had produced letter, dated 17th November, 1980 from the Government of Pakistan, Ministry of Defence (Aviation Division) addressed to the Establishment Division in which it had been brought to the notice of the Establishment Division that Mr. S. M. Alam, Section Officer was in Saudi Arabia in connection with performance of Haj and was expected to be back in Pakistan some time in December, 1980 and that notification about his retirement was being delivered at his leave address for taking action on para. 2 of the same. In para. 2 there was the directive given that application for leave preparatory to retirement should be made within the period stated. The landlord/applicant had made it clear that he had made the application for L. P. R.
6. It is the principle of natural justice that a person is to be heard before any order adverse to him is passed. The principle applies to administrative order as well. Since at the time that Notification No, 14/24/79-C. III (A) issued and published in the Gazette of Pakistan, dated December 3, 1980, Shah Masood Alam (the landlord) was availed of Haj in Saudi Arabi he could not have complied with the directive with regard to complying for leave preparatory to retirement within one month of the date of the notification. It is true that the actual notification of retirement of Shah Masood Alam was issued on 5th November, 1981 by the Ministry of Defence (Aviation Division) which was to the effect that on expiry of the L. P. R. He stood retired from the Government service on afternoon on 25th September, 1981. With regard to this notification there is no serious contest but it appears that the learned Controller passed the impugned order rejecting the application on S. M. Alam under section 14 of the Ordinance on 31st August, 1981 when the notification of his actual retirement after the expiry of L. P. R. Had not yet to be issued. Looking to the date of actual retirement, it is apparent that both the applications in Rent Case No, 3120 of 1981 and Rent Case No, 4995 of 1981 were made when the landlord who was a salaried employee was due to retire within next six months and, therefore, the essentail pre-condition for being entitled to the benefit of section 14 of the Ordinance existed in the case of the landlord. For the reasons already given, the finding of the learned Controller that the date of retirement of the landlord/applicant was 16-11-1980 was erroneous and cannot be sustained. The further finding, therefore, that the applicant/landlord had let out the two portions of the building to Hameed Imtiaz and Kehan Wasti after his retirement and, therefore, had forfeited his privilege under section 14 of the Ordinance, was arrived at on the wrong assumption that the applicant/landlord had retired on 16-11-1980.
7 . Mr. S. Azizul Hassan, the learned counsel for respondent S. Ziaul Hassan in F. R. A. No, 497/81 and for appellant Aurangzeb Dar in F. R. A No, 735 of 1982 has argued that the Sind Rented Premises Ordinance, 1979 being a special statute action taken under it must fulfil the condition of that statute to gain validity. He has further argued that since at the time that the applications under section 14 were filed the exact date of retirement of the applicant/landlord was not known and even at the time that the impugned order in Rent Case No, 320 of 1981 was passed namely on 31st August, 1981 it was not known which' was the definite date of retirement, the learned Controller rightly passed the order dismissing his application under section 14 of the Ordinance. On the basic proposition that action taken must fulfil condition of the statute. He has placed reliance on the decision of the Supreme Court in Birindra Mohan Das v. Aminuddin Malik the observation referred to by him reads as under:- "With utmost respect the pre-enunciated laid down by the Supreme Court in the decision referred to is not infringed."
' In the instant case since the essential pre-conditions for the landlord to be entitled to the benefit of section 14 as already stated do exist and there can be no contest with regard to the point that the landlord was a salaried employee who was due to retire and actually retired on 25th September, 1981. The only argument on behalf of the tenants is with regard to the validity of the notices issued to them as requires by section 14 aforesaid and the fact that at least in Rent Case No, 3120 of 1981 at the time the impugned order rejecting the application under section 14 was passed. There was no proper order to indicate the date of actual retirement after availing of leave preparatory to retirement. It was also pointed out that the applicant/landlord in para. 2 of his application in Rent Case No, 3120 of 1981 had stated that he stands retired from the Government service under Notification No, 14/24/79-C. III. (A), dated 13-11-1980, the aforesaid notification actually appeared in Gazette of Pakistan, dated 3rd December, 1980 and the date mentioned by the applicant 1 in para. 2 of his application was the date on which according to the notification he had to retire in case no L. P. R. Was availed of. As already stated the date undoubtedly wrong mentioned as that the notification and further the applicant/landlord had not stated as to the actual date from which he stood retired from the Government service.
8. With regard to the notice required under section 14 of the Ordinance undoubtedly that notices were issued to the two tenants in writing enabling them that the landlord needed the building for his personal use and required the tenants to deliver vacant possession of the building and the only condition attaching to the notices that it should not be for a date earlier than two months from receipt of the notice. In Rent Case No, 3120 of 1981, the learned Controller considered the matter with regard to notice under issue No, 4 and observed that although in the written statement the opponent had denied receipt of the notice, during his examination in Court he admitted that he had received the notice. The notice which is on the record was to the effect since the applicant landlord had proceeded on L. P. R. And was about to retire the house In vacated within two months.
As already stated two months period is to be given with effect from the receipt of the notice and the words "within two months" are undoubt and technically wrong. In Rent Case No, 4995 of 1981 the mistake of use of words "within two months" was not made and in the notice, dated 12-9-1981, it was stated that the tenant was being two months' notice to vacate the premises. Undoubtedly in both the cases the period of two months had expired before the applications weir made under section 14 of the Ordinance. The mere fact that in the notices C it was stated that the tenant should vacate the premises within two mont instead of two months is if at all a matter of technical defect.
9. With regard to the fact that at the time that the learned Controller decided Rent Case No, 3120 of 1981, there was no final order indicating retirement of the landlord/applicant from a particular specified date, the learned Controller looking to the provisions in section 14 of the Ordinance enabling the applicant to file the proceedings if he was due to retire within the next six months should have at least waited for that period before the disposing of the application. In the instant cases there was also clear indication that the retirement had taken place but the only date with effect from which the employee was to be considered as having availed of L. P. R. Had yet to be decided. In a earlier decision of this Court in Wall Muhammad v. Mrs. Hameeda, when the question of sufficiency of notice was considered it was observed that if technicalities are to be strictly enforced, the very object of the provision of section 14 will be frustrated and that the spirit of section 14, seemed to be that a tenant is to be provided two months' period prior to ordering of ejectment summarily.
10. The only contention that remains to be examined is that the landloru applicant after proceeding on L. P. R. Had rented out two flats to Hameed Imtiaz and Kehan Wasti in this respect. It was the case of the landlord that previous to the filing of the applications under section 14 of the Ordinance in the two instant cases, he had filed two rent cases against his former tenants F. H. Kazmi and S. J.
Shah. They were ordered to vacate the premises in 'Ind Rent Appeals Nos. 170 of 1978 and 169 of 1978 filed by them, the orders with regard to ejectment were maintained by order of this Court dated 2-9-1980. The aforesaid former tenants before the executing Court promised to vacant the tenements within two months and as such landlord verbally made commit went with M/s. Hameed Imtiaz and Kehan Wasti for their induction as soon as the tenements ware vacated, they were, therefore, inducted in the tenements after the same were vacated immediately after the return of the landlord from Saudi Arabia before he received the letter of retirement on 10-12-1980. Moreover, proviso of section 14 is not applicable in this case as the landlord had not retired at the time that he inducted the new tenants in the tenements.2 Similarly the power of subsection (2) of section 14 also does not apply in his case as he was not in occupation of the two flats owned by him at the time that he made applications under section 14 of the Ordinance.
11. In Ulfat Hameed v. Mrs. Birgis Khatoon a decision of this Court it was observed that application for eviction shall not be maintainable only if landlord/applicant is in actual and physical occupation of another building in any locality, of the same type and cause for which he had applied for eviction of the tenant and which he owned.
12. In view of the reasons given above F. R. A. No, 497 of 1981 is allowed and the impugned order of the learned Controller, dated 31st August, 1981 dismissing the application is set aside and the application is allowed. The respondent (S. Ziaul Hassan) is hereby ordered to hand over the vacant possession of the tenement to the appellant/landlord within one month from the date of this order.
For the reasons already given there is no substance in F. R. A. No, 735 of 1982 which is dismissed and the appellant (Aurangzeb Dar) is directed to hand over possession of the tenement to the respondent/ landlord within one month of the date of this order. In the circumstances no order with regard to cost is being passed.
1970 SCM R. 304 PLD 1981 gar. 794 PLD 1982 Kar. 823