1. ' This appeal has been filed under section 21(1) of the Sind Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance), It challenges the order dated 28th February, 1982 of the Senior Civil Judge/ A. S. J. And Rent Controller, Karachi in Rent Case No, 4217/80 whereby, the application of the respondent/landlord under section 14(1) of the Ordinance was allowed and the appellant was directed to hand over possession of the premises to the respondent within 60 days.
2. ' The facts leading to the filing of the appeal are as under : ' The respondent/landlord filed an application under section 14(1) of the Ordinance praying for ejectment of the appellant from the shop bearing No, K/16, Main Bazar, Shah Faisal Colony, Karachi.
3. It was his case that he was the owner/landlord of the premises and had rented out the same to the appellant on monthly rent of Rs, 100 under a written agreement of tenancy dated 31st May, 1970 for a period of 11 months. It was his case that the appellant avoided vacating the premises on one pretext or the other. The respondent further stated in the application that he was a salaried employee of the Karachi Metropolitan Corporation in the capacity of a fitter and retired on 1st January, 1980 on reaching the age of superannuation. He was in need of the premises and therefore served a legal notice under section 14 of the Ordinance demanding him to vacate the premises within 60 days from the date of the receipt of the notice. The appellant made a reply to the aforesaid notice refusing to vacate and made allegations against the respondent. The respondent had therefore been put to the necessity of filing the application for ejectment of the appellant.
4. ' The appellant filed written statement dated 28th September, 1980 taking preliminary objection that the application was not maintainable as it did not fall within the purview of the Ordinance and the Rent Controller had no jurisdiction to try the case. He took the further plea that the agreement was a deed of licence. On the merits he denied that he had been tenant of the respondent and he also denied that the respondent was a Government servant or a fitter in the K. M. C. He denied that the respondent required the premises for personal use stating that the respondent had other premises containing shops in the same locality. The learned Controller took the affidavit in evidence of respondent Muhammad Jamil and allowed the appellant to cross-examine him.
5. Similarly affidavit of appellant in evidence was recorded and the respondent cross-examined him.
6. The learned Controller then proceeded to pass the impugned order against which the instant appeal has been filed.
7. ' The plea taken in the written statement, already stated about the relationship of landlord/tenant not existing between the parties has not been pressed as a ground of the appeal probably in view of the fact that in the very application made under section 10 of the Ordinance for deposit of rent in Court the appellant had admitted that he was a tenant of the respondent in respect of the shop in question and had been paying the monthly rent of Rs, 100 regularly without fail. It is accepted legal position that once of tenant pays rent of the premises to the other party, it is sufficient to consider that there exists the relationship of landlord and tenant between(' them. This is specially so in view of the definition of 'landlord' as given in section 2( f) which reads as under :- "2( f ). 'Landlord' means the owner of the premises and includes a person who is for the time being authorised or entitled to receive rent in respect of such premises".
8. ' The aforesaid definition is wide enough to include a person who is for the time being authorised or entitled to receive rent in respect of the," premises, and since the appellant himself was paying rent to the respondent in respect of the premises in dispute the question of denying the relationship of landlord and tenant in the case does not arise at all.
9. ' The main contentions raised in the appeal would be more intelligible and could be considered properly if the provisions of section 14 of the Ordinance are kept in mind. For convenience of reference therefore the same are reproduced as under :- ' Section 14. Delivery of vacant possession.-(1) Notwithstanding anything contained in this Ordinance or any other law for the time being in force, the landlord of a building who is 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 60 years within the next six months, or has attained the age of 60 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 60 years or, as the case may be, has become a widow or an 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."
10. ' On behalf of the appellant it has been contended firstly that the application under section 14 of the Ordinance filed by the respondent falls beyond the scope of the provision of law for the following reasons :
(1) That the respondent retired from service on 1st January, 1980 and filed the application when more than six months had elapsed since his retirement.
(2) That he had not mentioned in his application that he needs the building for his personal use.
(3) That he has not mentioned that he is not in occupation of a building owned by him in any locality.
11. ' It may here be further stated that Mr. S. Nasiruddin, the learned counsel for the appellant has laid stress on the fact that the notice given by the respondent was insufficient in that the same mentioned that the premises be vacated within two months of the receipt of the notice whereas, as required by section 14, the notice should have been for vacating the premises not later than two months from receipt thereof. With regard to contention No, 1 above a perusal of section 14 shows that the proviso to subsection (1) thereof applies only if the landlord has rented out the building after he has retired or attained the age of 60 years. In this case, as is very apparent from the record, the appellant took over possession of the premises which were rented out to him by the respondent on 31st May, 1970 and since it is further admitted position that the respondent had been a salaried employee of the K. M. C. Who had reached the age of superannuation on 1st January, 1980 the ground that he could not file the application after more than six months had elapsed since his retirement appears to have been totally misconceived. The section inter alia provides that a person who has attained the age of 60 years or has retired may make such application, and there is no provision in the law referred to which debars him from making the application after six months of his retirement. Under the provisions he could have no doubt made the application even when he had not retired and was to retire within a period of six months.
12. ' With regard to ground No, 2, it is the case of the appellant that the landlord had not disclosed need of the building for personal use in his application. A perusal of para. 6 of the application would however show that he had stated therein that after having retired he was left with no option but to avail of his premises which were in occupation of the opponent and accordingly he had caused a legal notice under section 14 of the Ordinance served upon the opponent. This mention in the application is sufficient to be considered as his personal requirement for the premises.
13. ' With regard to contention No, 3, para. 6 of the application also covers the point that the respondent had no other such accommodation available as he had mentioned therein that he had no other option but to avail of his premises.
14. ' Reverting to the main contention of Mr. S. Nasiruddin the learned counsel for the appellant that the notice given was insufficient, the aforesaid notice which is dated 21st May, 1980 in the relevant para. 3 thereof reads as under : "That my client now intends to run the business in the said shop to earn the means of livelihood after retirement. You are therefore required to vacate the premises in question within two months' time from the date of receipt of this notice positively, failing which the matter will be filed before the competent Court of Law to get ejectment from the said premises entirely at your cost and risk which please note."
15. ' It is therefore apparent that instead of specifying in the notice the time not being earlier than two months from the date of receipt of notice, the notice provides for the premises being vacated "within" two months. This technical defect indeed appears in the notice, and learned counsel for the appellant has contended that the insufficiency of notice vitiates the entire proceedings. He has referred to decisions involving notice to quit under section 106 of the Transfer of Property Act. He has referred to the decision of the Privy Council in Harihar Bannerji and others v. Ram Shahi Roy and others in which it was inter alia observed that the principles governing the construction of a notice to quit laid down by English cases are equally applicable to cases arising in India and they establish that notices to quit, though not strictly accurate or consistent in the statement embodied in them, may still be good and effective in law. The test of their sufficiency would be as to what they would mean to tenants conversant with all those facts and circumstances and they are to be construed not with a desire to find fault with them which would render them defective but to be construed utres magis valeat quam poreat. The learned counsel has also referred to the decision1 in the case of Yousuf Ali v. Muhammad Aslam Zia and 2 others which deals with rights of lessee to occupy building for a period of unexpired portion of lease. The aforesaid decision however was with regard to the Sind Rent Restriction Act not being applicable to the occupation of evacuee property which had been allotted by the Rehabilitation Authority. The learned counsel has also referred to a recent decision of this Court in Khawaja Muhammad Razak v. Umer Farooq wherein it was inter alia held that landlord having qualifications prescribed by section 14 must give notice to tenant of at least two months to vacate the premises and that section 14 is to be strictly complied with. In that decision it was further held that notice requiring tenant to vacate building within two months was not a valid notice as required by law.
16. ' On the other hand, Mr. M. A. Kadri, the learned counsel for the respondent, has contended that the technical defect involved has not caused any prejudice to the appellant, as the application for eviction was filed a long time after the expiry of the statutory period of two months. He has placed reliance on Raj Muhammad and 11 others v, Haji Muhammad Zareen and .3 others, a decision of the Supreme Court wherein it was contended that cause of action not having matured, petition was incompetent on day of its being filed, and the Rent Controller possessed no jurisdiction to proceed with the case. The contention was considered not to be sound. It was observed as under :- "We do not agree with the learned counsel. It was held in the case of Mst. Arnim' Begum and others that the forums acting under the Rent Restriction law were not, in exercise of discretion vested in them, precluded to take note of events taking place during the course of the proceedings after the institution of an ejectment petition so as "to suitably mould the relief on the basis of the altered circumstances in order to avoid multiplicity of litigation and shorten the proceedings". It was also observed that, "compelling the applicant-landlord to withdraw ejectment petition which had already been tried, merely on the technical ground of the cause of action not having matured at the time it was filed so that it may be filed again would not advance the interest of justice as results on merits were not likely to be different. Learned counsel has not satisfied us that if the ejectment petition was withdrawn and refiled, the results on merits would have been different. The cases of Abdur Rashid and Muhammad Shaft cited by the learned counsel, in view of the dictum in Mst.
17. Arnim: Begum's case are of no help to the petitioners. There is no force in the argument advanced by the learned counsel in support of this petition. It fails and is accordingly dismissed."
18. ' In Younus v. Mrs. Hamidaa recent decision of this Court where compliance with the requirement of service of two months' notice under section 14 of the Ordinance came under discussion it was observed as under : "It is necessary that the above section contemplates service of two months' notice on a tenant by a person falling within the category mentioned therein, namely, widow, orphan or a p ton who has retired from service, or has attained the age of 60 years. In the instant case notice was served on or about 30th January, 1980 whereas the ejectment case was filed on 2nd March, 1980, that is, much before the expiry of two months. Furthermore, in the notice the appellants were called upon to vacate forthwith instead of on expiry of two months. However, in the written statement the appellants had not raised any specific plea to the effect that a valid notice under section 14 of the Ordinance was not served on them before the filing of rent application. It was also clear that section 14 of the Ordinance seems to provide an expeditious summary remedy to a widow, orphan, to a person who has retired from service or who has attained the age of .60 years. If technicalities are to be strictly enforced, the very object of the above provision will be frustrated. I am inclined to hold that the Court is to see whether there has been substantial compliance of the above section.
19. The spirit of section 14 seems to be that a tenant is provided two months period prior to ordering of ejectment summarily under the above provision. In the instant case notice dated 30th January, 1980 under section 14 was served in or about first week of February. 1980, whereas the ejectment order was passed on 19th April, 1981 that is, after the expiry of more than one year. Since the rent2 3 4 5 case was filed on 2nd March, 1980 the Rent Controller could not have passed ejectment order immediately on receipt of the application for ejectment as the two months period had not expired by them. However, during the pendency of the rent application the cause of action matured as admittedly on the date of the passing of the ejectment order, more than one year expired from the date of service of the notice and from the date of filing of the ejectment case."
20. I am in full agreement with the interpretation of section 14 as given in the decision. In the instant case, the notice under section 14 was given on 21st May, 1980. Application under section 14 of the Ordinance was presented before the Rent Controller on 28th July. 1980 and the decision requiring the appellant to vacate the premises was given on 28th February, 1982. The only objection is the insufficiency of notice which required the appellant to vacate the premises within two months of the date of receipt of the notice, instead of directing the appellant to vacate the premises no earlier than two months from receipt thereof. It is therefore very apparent that there was substantial compliance with the provisions of section 14 and even if the appeal is accepted as being premature, on the same set of facts the decision would be the same as has been given in the impugned order, in case of filing of a fresh application under section 14 for ejectment of the appellants.
21. ' The only other contention raised on behalf of the appellant is that the respondent had other premises in his occupation as he had admitted in cross-examination that building No, 4/758 stands in the name of his father who died 5-8 years back. It is therefore argued that the aforesaid accommodation must be considered to be owned by him. However, section 14 subsection (2) lays down that the landlord shall not be entitled to avail of the benefit of subsection (1) if he is in occupation of a building owned by him in any locality. There is nothing on record to prove that respondent Muhammad Jamil is in occupation of any such premises.
22. ' Under the circumstances' stated, I find that there is no substance in this appeal which is accordingly dismissed with no order as to costs.
23. ' The appellant is given two months' time from the date of this Order to give vacant possession. A 1 R 1918 P C 102 PLD 1958 SC (Pak.) 104 1982 CLC 318 1980 SCMR 339 1982 CLC 580