' An application (Rent Case No 537/80) under section 14 of the Sind Rented Premises Ordinance, 1979, was filed by the appellant/landlord against the respondent/tenant. By order dated 9-9-1981, the learned Rent Controller, Karachi, dismissed the ejectment application. The application under section 14 of the 1979 Ordinance was dismissed mainly for two reasons by the learned Rent Controller. One of the reasons for dismissal of the application was that there was a defect in the notice. The other main reason, on which the application was dismissed, was that the appellant owned another shop on the ground floor of the building in question, which was in possession of another tenant and in respect whereof an ejectment case had been filed by the appellant against the tenant in occupation of that shop. Being aggrieved with the impugned order dated 9-9-1981 of the learned Rent Controller, dismissing the ejectment application, the landlord/appellant has filed the present appeal. I have heard Syed Azizul Hassan, learned counsel for the appellant and Mr. Muhammad Zaki Ahmad, learned counsel who has appeared on behalf of the respondent.
2. In so far as the point relating to the defect in the notice under section 14(1) is concerned, it may be observed that the notice given by the appellans is dated 25-11-1979 and through this notice the respondent was required to hand over vacant possession of the premises in question within two months from the date of receipt of this notice. Although the ejectment application was filed on 27- 1-1980 i,e, two months after the notice, the Rent Controller apparently held that the notice was defective inasmuch as it required the respondent to vacate the premises within two months, whereas section 14(1) lays down that the notice should inform the tenant in writing that the landlord requires the building for personal use and requires the tenant to deliver vacant possession of the building to him within such time as has been specified in the notice not being earlier than two months from the receipt thereof. In the circumstances of the present case, I am of the view that the Rent Controller was not right in holding that the ejectment application was liable to be dismissed on account of the aforesaid defect in the notice, as firstly the plea about the defect in notice was not taken in the written statement and secondly, the ejectment application was filed after the expiry of two months. On this ground the finding of the Rent Controller is liable to be set aside and I hold that the ejectment application was not liable to be dismissed on the ground of the aforesaid defect in the notice.
3. In so far as the other point is concerned, it may be observed that the house in question is located on Tariq Road, Karachi, where the ground floor is in occupation of the appellant as his residence and the first floor was given to the respondent on rent by the appellant for the purpose of running a shorthand/typing school and it is an admitted position that floor premises are being used by the respondent for that purpose. In the notice under section 14 the appellant had informed the respondent that the first floor premises were required by the appellant for his own use and for the use of his daughters for the purposes of running a coaching centre. It was further mentioned in the notice that the daughters of the appellant were trained and qualified teachers and they could help the appellant in running the coaching centre and the appellant after retiring from his service on 3- 6-1979 having attained the age of 60 years was not in a position to do any active service and as such he had decided to start a coaching centre on the first floor of the house in question, which was in occupation of the respondent. In his cross-examination, the appellant stated that the disputed premises were constructed for residential purposes, although he voluntarily added that the property is situated at Tariq Road, which has been declared as commercial area. It was further stated by the appellant in his cross-examination that there was a shop in the disputed building (Le.
On the ground floor) and that shop was with another tenant since May, 1978. The learned counsel for the appellant stated that in respect of that shop also an application under section 14 was filed but that ejectment application was also dismissed by the Rent Controller, against which an appeal had been filed, which was also fixed in this Court on 10-3-1983 but that appeal was withdrawn by the appellant.
4. Arguments were advanced by both the learned counsel on the interpretation of section 14(2) of the 1979 Ordinance and applicability of the said provision to the facts and circumstances of the instant case. Section 14(2) of the 1979 Rent Ordinance provides that the landlord shall not be entitled to avail the benefit of section 14(1) if he is in occupation of a building owned by him in any locality. It was contended by the learned counsel for the appellant that this provision is to be interpreted in such a way that a landlord will not be entitled to derive benefit from section 14 if he required a residential premises in occupation of his tenant if the landlord was himself in occupation of a residential building owned by him in any locality and similarly he will not be entitled to avail the benefit of section 14(1) in respect of a commercial premises in occupation of a tenant if the landlord was in occupation of a commercial premises owned by him in any locality. It was, however, contended that this provision that is section 14(2) did not bar the landlord from making an application for ejectment in respect of a residential premises in occupation of his tenant if the landlord was in occupation of a commercial premises and vice versa and reliance was placed for this proposition on a judgment of the Supreme Court of Pakistan reported in Abdul Majid v. Naimunrisa Begum (I). The relevant portion of the order of the Supreme Court is reproduced herein-below :- "The limited contention raised in support of this petition relates to subsection (2) of section 14, which reads as follows :- '(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'."
' The learned counsel contended that admittedly the landlady owned and possessed a residential premises in the same locality and therefore, the benefit of a summary eviction under subsection (1) of section 14 was not available to her. The learned counsel went on to argue that the language of subsection (2) is of the widest import and would mean that there would be no occasion for a landlord to have recourse to subsection (1) if the landlord is owner in possession of any premises in any locality irrespective of the purpose for which the eviction was sought or the purpose to which the owned premises was in use. To our mind subsection (2) of section 14 cannot be read in isolation from subsection (1) for there has to be a nexus between the personal use for which the eviction is sought, and the premises said to be owned and possessed by the landlord in any locality referred to in subsection (2). The wide meaning sought to be put by the learned counsel to subsection (2) would negate the very intent of the Legislature which is to give the benefit to certain class of persons to obtain summary eviction for personal use only if the other building owned by the landlord was in fact not put to such use or capable of beir3 put to such use for which purpose eviction is sought, the existence of such other building would be irrelevant for the purpose of subsection (1) of section 14. To give an illustration, a landlord may be owner occupant of a godown premises in any locality which premises cannot reasonably be used as residential premises, but if the meaning sought to be given by the learned counsel is accepted the result {{FOOT NOTE}}
(1) PLD 1981 SC 118 {{FOOT NOTE}} will be that such landlord cannot evict a tenant from a residential premises though the same may he required for the personal use of the landlord. The contention, therefore, is without force."
' On the other hand it was contended by Mr. Muhammad Zaki Ahmad, learned counsel for the respondent, that in the instant case the building in question was residential building and the ground floor of the said building is still in occupation of the appellant and it is in use as a residential premises. It was further submitted that the first floor of the building remained as a residential premises, although it was given to the respondent for being used as a shorthand/typing school. In the circumstances it was contended that the first floor of the premises in occupation of the respondent remained as residential premises, although it might have been used for the purpose of running a shorthand/typing school. It was contended that the appellant being in occupation of the ground floor was not claiming benefit of section 14(1) for getting the first floor in occupation of the respondent vacated in view of the bar contained in section 14(2) of the 1979 Ordinance. In the alternative it was argued that if the premises were to be treated as a commercial premises, as the appellants had stated in his cross-examination voluntarily that the area in question had been declared as a commercial area, in that event not only the first floor but also the ground floor became commercial premises. In that event, it was contended that appellant could not claim the first floor under section 14(1), as he was in occupation of a commercial premises on the ground floor. The precise argument was that in the circumstances of the present case the entire building was either residential premises or the entire building could be treated as a commercial premises but part of said building cannot be treated as a residential and part as commercial on the facts of this case.
' In view of the judgment reported in PLD 1981 SC 118, the law is that a landlord in occupation of a commercial premises can claim a residential premises in occupation of a tenant, under section 14(1) of the 1979 Ordinance and vice versa. However, it is to be seen whether the benefit of the principle laid down by the Supreme Court in the aforesaid judgment can be taken by the appellant in the facts and circumstances of the present case. In my view, the first floor of the premises did not lose its residential character on account of the same being given on rent to the respondent for being used for the time-being as a shorthand/typing school. It is not a case, where a shop is specially carved out of the residential premises and then given as a shop to a tenant on rent. It is the case of a first floor of a residential buiiding given by the landlord, who was continuing to reside on the ground floor and using the ground floor premises as a residence and allowing the tenant to use the first floor as a shorthand/typing school. As observed earlier, in my view, the fact of the first floor premises being used for shorthand/ typing school did not change the character of the first floor premises into a commercial premises. In the circumstances, the appellant being in occupation of the ground floor premises, which are admittedly residential in character, could not derive benefit of section 14(1) by filing an application for ejectment of the respondent from the first floor of the premises in question, which, as observed earlier, has not lost their residential character and would continue to be treated as a residential premises. Under section 14(2) a landlord is not entitled to avail benefit of section 14(1) if he is in occupation of a building owned by him in any locality. The appellant is admittedly in possession of the ground floor, which in the circumstances of the present case, is treated as a 'building" as defined in section 2(a) of the 1979 Ordinance and as such he could not maintain an application under section 14(1) for the ejectment of the respondent from first floor of the house in question.
' As I have held that the application under section 14(1) filed by the appellant against respondent was not maintainable under section 14(1), the present first rent appeal is liable to be dismissed.
' F. R. A. No, 496 of 1981 is dismissed with costs.