' This appeal has been filed against the order passed by Xth Senior Civil Judge/Controller, Karachi dated 8-8-1981 in Rent Case No, 6039/80 holding that the case of the respondent was fully covered by provisions of section 14 of the Sind Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance), and directing the appellant to hand over vacant possession of the premises in dispute to the respondent within two months of the date of the order.
2. The facts leading up to the filing of the appeal are as under: The respondent is owner and landlord of House No, 2/57-E, PECHS, Karachi. He rented out the aforesaid premises to the appellant under a written agreement of lease dated 1-10-1967. It was the case of the respondent that the demised premises were leased out to the appellant at a monthly rent of Rs, 275 exclusive of other charges, however, after making payment of the rent at that rate for about 4 months the appellant started paying Rs, 250 per month.
3. The respondent filed Application No, 227/70 for ejectment of the appellant on the ground of default which was allowed by Rent Controller vide his order dated 31-7-1977. The appellant filed Rent Appeal No, 357/76 which was allowed on 5-8-1978. The Appeal No, 325/78 which was filed by the respondent also ended in dismissal IIndas the High Court held that the rent was reduced to Rs, 250 and there was no default.
4. The respondent who was a Government Servant retired from service w,e,f, 1-9-1980. He had served the appellant with notice dated 6-3-1980 informing him about his retirement and directing him to vacate the premises as the same were required for his own personal use. However, the appellant in his reply dated 6-3-1980 refused to do so and challenged the validity of notice by filing a Civil Suit No, 1859/80 the plaint of which however, was rejected by the XIV Civil Judge, Karachi vide his order dated 20-8-1980.
5. The respondent also attained the age of 60 years on 25-12-1980 and on that account also he served the appellant with notice dated 26-7-1980 calling upon him to vacate the premises as he required the same bona fide for his own personal use. The appellant, however, by letter of his Advocate dated 28-7-1980 refused to vacate the house.
6. As the respondent had no other house in Karachi or elsewhere and he had been directed to vacate the official residence he urgently needed the house for his own residence, and therefore, he filed application dated 12th October, 1980 under section 14(3) of the Ordinance, 1979.
7. The appellant filed written statement admitting that he was tenant of the respondent. With regard to the rate of rent the appellant in his written statement before the Controller stated that after termination of the period of tenancy under the agreement, the respondent had varied the terms and conditions of the tenancy and had agreed to let out the premises to the appellant at the rate of Rs, 250 per month and thereafter the tenancy continued at the rate of Rs, 250 and not Rs, 275 per month.
8. In the written statement the appellant had taken the stand before the Controller that the respondent had not retired from service but he had been permitted to retire and, therefore, his retirement was premature. He had further contended that, therefore, the respondent was not entitled to eject him. With regard to the Civil suit filed by appellant in which the plaint had been rejected the appellant had taken the stand that the matter was still sub judice as he had filed Civil Suit No, 490/80 which was pending in the Court of VIth Additional District Judge, Karachi. The appellant also denied that appellant had attained the age of 60 years. The learned Controller after hearing the parties and affording them an opportunity to present their ease before him passed the impugned order and hence the appeal.
9. Mr. M. M. Pirzada, the learned counsel for the appellant while arguing the appeal contended that earlier litigation having gone against the respondent he had taken undue advantage of the new legislation namely the Sind Rented Premises Ordinance, 1979 and had manoeuvred to get early premature retirement from service and, therefore, he was not entitled to the benefit of section 14 of the Ordinance. He raised the further contention that Controller had not framed any proper issues and had not properly appreciated the evidence given by the appellant. He has assailed the impugned order also on the ground that there was no proper notice given and, therefore, the entire proceedings were vitiated. The acceptance by the learned Controller of the version of the respondent that he had attained the age of 60 years has also been challenged.
10. For a proper appraisal of the grounds raised the provisions of section 14 of the Ordinance have to be considered. The section reads as under:- "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 a 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 sixty years within the next six months or has attained the age of sixty 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 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."
11. At the very outset it may be stated here that there is nothing on the record of the proceedings before the learned Controller which could be considered as sufficient to prove that the respondent/landlord is in occupation of a building owned by him in any locality.
12. The section requires the landlord by notice in writing to inform the tenant about the building being required for personal use and further requiring 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. It is only if such notice is given by one of the persons specified in the section being the landlord of the building that if the tenant fails to deliver the possession, the Controller on the application of the landlord in that behalf may order eviction of the tenant from the building in a summary manner as provided in the section. The provisions of the section are for benefit of landlord of a building who is a 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 sixty years within the next 6 months or has attained the age of sixty years. It is apparent from reading of the section that the category of salaried employee due to retire or having retired has not been further limited by the Legislature in considering the nature of retirement. For the purposes of the section, therefore, it is not necessary to go into the matter with regard to the nature of retirement.
13. It was not necessary for the learned Controller to frame any issues in the special proceedings which are enacted for affording summary relief to the category of landlord specified therein.
14. With regard to the contention about the respondent not having attained the age of 60 years, there was enough evidence produced by the respondent by showing the entry in the matriculation certificate and it was for the appellant to repel the assertion of the respondent with regard to his age by adducing evidence to the contrary which was not done in this case.
14. The only other contention is about the notices given being insufficient. The first notice which is dated 6th March, 1980 mentioned that the date of retirement of the respondent was 1st of September, 1980 which was confirmed by copy of the order notifying such date which was also attached to the notice. The retirement was to be within 6 months and, therefore, under section 14 of the Ordinance no exception could be taken to the timing of the notice. In the body of the notice it had further been mentioned that the vacant possession of the premises should be delivered to the respondent "within the period of two months from the date of receipt of this registered notice." The section requires that the notice should be not earlier than two months and, therefore, technically there is a flaw in the notice in which instead of the word `within' the word `after' should have been used. However, this technical flaw is not sufficient to vitiate the proceedings. In an earlier decision of this Court in Wali Muhammad v. Mst. Hameeda (1) it was inter alia observed that section 14 contemplates service of two months' notice on tenant by person falling within the categories mentioned in the section and provides expeditious summary remedy to such person and, therefore, the Court should merely see if section 14 is sufficiently complied with. It was further observed in that decision that spirit of law seems to be to provide the tenant two months' period prior to the ordering of the ejectment and not to give two months' time before filing ejectment application. Moreover, in the instant case as in the precedent case quoted no objection about the validity or insufficiency of the notice was raised and, therefore, it could not be allowed to be raised in appeal. In the reply to the notice which is dated 16-3-1980 the point raised was about the respondent seeking premature retirement from the Government but the question of insufficiency of the notice was never raised. In the reply to the notice about having attained the age of 60 years which was replied by letter of the Advocate of the appellant dated 28-7-1980 merely the fact of attaining the age of 60 years was contested and it was stated that the respondent was occupying other residential accommodation. It was further contended that since civil suit had already been filed with regard to the legality of the notice issued earlier the second notice amounted to contempt of Court. It is, therefore, apparent that point with regard to the insufficiency of the first notice was never taken before the learned Controller.-
15. In the second notice issued to the appellant by the respondent dated 26th July, 1980 it was asserted that the respondent would be attaining the age of 60 years on 25th December, 1980. In this notice the words "within the period of 2 months from the date of receipt of this registered notices were used. However, for the reasons already given sufficient compliance with the provision of section 14 was made. In the precedent decision of this Court already quoted in the notice the appellants were called upon to vacate forthwith instead of on the expiry of two months and in that case too in the written statement the appellant had not raised any specific plea that a valid notice was not served on them before filing the rent application. It was observed by a learned Single Judge of this Court as under:- "If technologies are to be strictly enforced the very object of the above provision will be frustrated. I am inclined to hold that Court has to see, whether there has been substantial compliance of the above section. The spirit of section 14, seems to be that a tenarit is to be provided two months period prior to ordering of ejectment summarily under the above provisions. In the instant case the notice dated 31-1-1980 under section 14 was served in or about first week of February, 1980 whereas the ejectment order was passed on 19-4-1981 i,e, after expiry of more than one year. Since the rent case was filed on 2-3-1980 the Rent Controller could not have passed the ejectment order immediately on receipt of the application for ejectment as the two months period had not expired by then. However, during the pendency of the rent application the cause of action matured as admittedly on the date of passing of the ejectment order more than
(1) PLD 1981 Kar. 794 ' two months had expired from date of service of that notice and from the date of filing ejectment case."
' In the case in hand also the only technical objection to the notices given is that the same should have expressed that the tenant was to vacate after expiry of two months from the date of receipt of the notice and not within two months. The notice as already stated were given on 6th March, 1980 and 26th July, 1980, whereas the application for ejectment was filed on 12th October, 1980, and impugned order was passed on 8-8-1981.
16. Under the circumstances, I find no weight in the appeal which is accordingly dismissed with no order as to costs. The appellant is directed to hand over possession of the premises within 2 months of the date of this order.