' This First Rent Appeal was admitted on 8-3-1983. An order, dated 16-1-1983 was passed by the learned VIth Senior Civil Judge and Rent Controller, Karachi in Rent Case No, 1679 of 1982 allowing the application under section 14 of the Sind Rented Premises Ordinance, 1979.
2. Briefly the facts leading to this appeal are that the appellant is a tenant of the respondent in respect of non-residential premises from the year 1968 at the rate of Rs, 70 per month which was allegedly increased to Rs, 100 per month vide an agreement, dated 13-9-1972. The respondent filed a rent case being the Rent Case No, 2719/73 on the ground of his alleged personal requirement which was decreed ex parte and subsequently-was remanded and the same is pending before the Senior Civil Judge and Rent Controller, Karachi.
3. During the pendency of the case under West Pakistan Urban Rent Restriction Ordinance, 1959 Sind Rented Premises Ordinance, 1979 was promulgated on or from 21-11-1979. After promulgation of the new Ordinance the respondent served a notice, dated 14-9-1981 on the appellant purported to be under section 14 of the said Ordinance stating that he is a retired man of over 60 years of age and does not own any other house or shop anywhere in the city of Karachi except the demised premises and genuinely required the premises in occupation of the appellant for his own use. He called upon the appellant to vacate the premises within 60 days of the receipt of the said notice.
However, the respondent field a rent application on 1-4-1982 on the denial of the allegations mentioned in the notice by the appellant. The learned Rent Controller after hearing the arguments of the parties passed an order directing the appellant to vacate the premises and hand over its possession peacefully to the respondent.
4. The appeal was argued on behalf of the appellant by Mr. M. Ilyas Ahmed Advocate and Mr. K. M.
Nadeem Advocate argued on behalf of the respondent. Mr. Ilyas Ahmed in his arguments stated that the impugned order is nullity in law, in operative, corarn non iudice and void, The learned Rent Controller has not appreciated properly the evidence of the parties. It is not proved that the age of the respondent was 60 years. It is further contended by the learned counsel that the respondent was already 60 years of age, on 1-4-1972 and thereafter he let out the premises in question to the appellant, on 13-9-1972. It is contended that the respondent has lost the right bestowed under section 14 of the Sind Rented Premises Ordinance, 1979 as he did not move the application within the prescribed period of six months as is contemplated under this section. That the respondent was already in possession of another house bearing No, 52 in Muhammad Talib Colony, Liaquatabad as is mentioned in the agreement, dated 13-9-1972. In short he has raised points that no fresh cause of action was accrued to the respondent under section 14 of the Sind Rented Premises Ordinance, 1979 and that the relief under the said section was not available to the respondent in view of the fact that proceedings for ejectment were already pending in the case bearing No, 2719/73.
5. It is important to analyse the wording implied by section 14. The section 14 is as under "(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 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 :
(2) 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."
The section 14 quoted above has the following four important ingredients :-
(i) That the landlord must have attained the age of 60 years.
(ii) That the notice in writing be given by the landlord to the tenant for delivery of vacant possession of the premises.
(iii) That the relief under section 14 is not available to the landlord who has rented out the building after he has attained the age of 60 years.
(iv) That the landlord shall not be entitled to avail of the benefit of this section if he is in occupation of a building owned by him in any locality.
6. This necessitates to refer to the evidence produced before the Rent Controller. In the written statement the appellant/tenant Wahid Shah has admitted that he was inducted as a tenant before the applicant/respondent had attained the age of 60 years. In para. 3 of the affidavit filed on behalf of the applicant/respondent it is stated that the appellant/ opponent was inducted to the tenancy before the respondent/applicant had attained the age of 60 years. It was contended by the learned Counsel for the appellant that at the time of the fresh agreement which was entered into on 13-9-1972, the respondent was already 60 years of age as would be evident from the Identity Card which he has produced in the lower Court where the age of respondent was shown to be 64 years on 1-4-1974.
7. The appellant was entered into tenancy of the premises for the first time in the year 1968. The tenancy started from 1968 on the payment of rent of Rs, 70 per month but it was renewed on 13-9- 1972 and the rent was enhanced to Rs,
100. In other words it means that the respondent was not 60 years of age at the time when for the first time the appellant was inducted into tenancy in the year 1968. The fresh agreement in the year 1972 was merely continuance of the same tenancy but with enhanced rent. This contention has, therefore, no force in view of the facts on record. Secondly the appellant has raised the point that no valid notice was served on the appellant because the notice mentioned the time for handing over the possession within 60 days whereas according to section 14 of the Sind Rented Premises Ordinance, 1979 it is two months. This is not forceful a plea and the facts that summary proceedings under section 14 of the Sind Rented Premises Ordinance, 1979 were invoked much after 8 two months. In this respect I may refer to a case namely Wali Muhammad v. Mst. Hameeda (1) decided by Ajmal Mian, J. It would be worth while to quote the following passage from the said judgment which is important :- "It is necessary to state 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 person, who has retired from the service or has attained the age of 60 years. In the instant case the notice was served, on or about 30-1-1980, whereas the ejectment case was filed on 2-3-1980, i,e, much before the expiry of two months. Furthermore, in the notice the appellants were called upon to vacate forthwith instead of on the 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 is 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 the 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.
The spirit of section 14, seems to be that a tenant is to be provided 2 months' period prior to ordering of ejectment summarily under the above provision. In the instant case the notice dated 30-1-1980 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 the expiry of more than one year. Since the Rent case was filed on 2-3-1980, the Rent Controller could not have passed an 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 had expired from the date {{FOOT NOTE}}
(1) PLD 1981 Kar. 794 {{FOOT NOTE}} of service of the notice and from the date of filing of the ejectment case. The principle of law enunciated in the cases relied upon by Mr. Kassam is on all fours applicable to the instant case.
Whereas the cases relied upon by Mr. Omarani are distinguishable from the facts of the instant case."
8. As regards the fresh cause of action arose after the promulgation of the Sind Rented Premises Ordinance, 1979, it may be stated that no doubt the Rent Application is pending before the Rent Controller under section 15 yet the same does not bar any action under section 14. It may also refer to PLD 1982 Kar. 935 in which in a case Abdul Ghani v. Muhammad Ibrahim Amin, Nasir Zahid, J.
Observed as follows :- "The last contention of learned counsel for the appellant related to other proceedings initiated by the respondent. Learned counsel referred to Rent Case No, 813 of 1980 which was filed prior to instant Rent case. This is an admitted position. However, the Rent case has been filed under the provisions of section 15 of the 1979 Rent Ordinance, and in my view, if later on the respondent became entitled to file an application under section 14, the filing of the earlier application under section 15 or pendency of the same, did not debar the respondent from filing the instant Rent Application under section 14. Section 15 and section 14 give separate causes of action to the landlord and the filing of one application is no bar to the filing of the other application."
9. In the instant case I may advert to the question whether the word 'need' in the section 14 means the bona fides of the landlord. Although in the Judgment of Ajmal Mian, J. He has observed that the bona fides under section 14 are not to be looked into but in a case Israr Aslam v. S. H. Hussain (1) it was held that the landlord is required to prove the bona fide of his requirement. In his affidavit the respondent has averred that he has got a family of 15 members and after he gets the premise in question he will convert it into a residential premises to accommodate his family members. There is no evidence to show that House No, 52 in Talib Colony, Liaquatabad was in occupation of the respondent and he has himself denied to be the owner of the said house. This fact is not proved by the appellant excepting that it was mentioned in the memo. Of agreement with regard to renewal of the rent deed executed on 13-9-1972. Whatever the remedy which is available to the landlord and the relief which he can avail of, he is not barred from getting it irrespective of fact that previously on the same grounds a rent application was pending.
10. Considering the points and the relevant law I would rather dismiss this appeal and give three months to the appellant to deliver the vacant possession of the premises in question to the respondent. There will be no order as to costs.
(1) 1983 CLC 464 THE END ALL PAKISTAN LEGAL DECISIONS IMIN11.11111 HIGH COURT OF BALUCHISTAN