ZAFFAR HUSSAIN MIRZA, J.-- The question of law that has been raised in this case relates to the interpretation of section 14(2) of the Sind Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordnance). Leave was granted in this case to determine whether a landlord will be entitled to avail the benefit of section 14(1) not with--standing the fact that he is in occupation of a building owned by him in any locality, if such other building is not suitable for his needs.
2. The respondent who is the landlord of the premises and who was in service of the National Bank of Pakistan retired on reaching the age of 60 years on 26-3-1981. Within a period of six months before his retirement, as required by section 14(1) of the Ordinance, i.e. On 11-10-1980 he informed the appellant that he needs the demised building consisting of the ground floor of a house at Nazimabad, Karachi, in the occupation of the appellant, for personal use and required hir, to deliver the vacant possession thereof within one month. As the appellant failed to comply with the notice the respondent filed an application under section 14 of the Ordinance being Rent Case No. 7302 of 1980 in the Court of the learned Rent Controller. The appellant contested the application but on 12- 3-1981 the respondent applied for withdrawal of the case on the ground that "the same in the circumstances is not feasible to proceed and the applicant may be permitted to file the same in proper form". The learned Rent Controller disposed of this application by passing the order in the following terms:- "Application disposed of as withdrawn but no order as to cost with permission to file afresh."
3. The respondent thereafter filed a fresh application for ejectment of the appellant under section 14 of the Ordinance on the ground that he had retired from service on attaining the age of 60 years.
His further plea in the ejectment application was that previously the applicant was not in need of the said premises as he was all along on postings to different places in the interior of Sind, but now on leave preparatory to retirement he came down to Karachi and was constrained to put up with his in-laws at III-C, 3/10, Nazimabad, Karachi, which is temporary shelter. Once again the appellant contested the application denying the case of the respondent on the facts and also raised legal pleas, inter alia that the application was not maintainable in view of the fact that the previous application of the landlord having been dismissed as withdrawn, no second application under section 14 was competent. On the evidence adduced by the parties the learned Rent Controller found that the respondent had fulfilled all the requirements of section 14 of the Ordinance and was entitled to the possession of the disputed premises. He repelled the plea of the appellant that the respondent was in occupation of another building owned by him. The legal objection regarding the maintainability of the fresh proceedings under section 14 was also rejected. In view of these findings the learned Rent Controller allowed the ejectment application of the respondent by order, dated 27-2-1982.
4. The appeal preferred by the appellant before the High Court of Sind was dismissed vide the impugned judgment in this appeal, dated 27-4-1982. The appeal by special leave to this Court is directed against the said judgment of the High Court.
5. As already observed the decision in this case turns on 'he true interpretation of section 14 of the Ordinance, which reads as under:- "14. Delivery of vacant possession; (1) Notwithstanding anything constained in this Ordinance or any other law for the the being in force, the landlord of a building who is a widow, pr 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 the as may be specified in the notice, not being earlier than to months from the receipt thereof: Provided that nothing in this subsection shall apply were 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."
6. The main contention of the learned counsel for the appellant is that the landlord is disqualified from availing the benefit of subsection (1) of section 14, as he was in occupation of a building owned by him in the same locality. It was urged, with some amount of force, that the landlord cannot be allowed to dispose of other buildings in his occupation at the relevant the and then seek to enforce his rights under the special provisions of section 14 of -the Ordinance, on the plea that he is not in occupation of another building in the same locality. On behalf of the landlord, on the other hand, it was argued that the disqualification under section 14(2) is relatable to the date of the institution of the proceedings and in the facts of this case, admittedly on the date of the institution of the application for ejectment the landlord was not in occupation 'of the other tenements as he had already let them out. This argument is based on the language of section 14(2) which uses the word "is" which, according to the learned counsel for the landlord fixes the point of the for the application of the legal disability and being couched in the present tense the obvious reference is to the the when the application for ejectment under this provision is made.
7. In order to appreciate the argument of the learned counsel it is necessary to state some facts. As admitted by the landlord in his deposition in the previous proceedings there are three tenements in the building in which the disputed premises are located. On the first floor there are to tenements and on the ground floor there is one tenement which is occupied by the appellant. As far as the tenements on the first floor are concerned, they were admittedly rented out by the landlord on 20- 12-1980 and 15-12-1980. It is also an admitted position that on 4-4-1980 the respondent had put up an advertisement for the disposal of the tenements in the newspaper. Another important fact admitted by the landlord was that on 11-10-1980 when he served the first notice upon the appellant, some other tenants were in occupation of the tenements on the first floor. This evidence has been brought on the record of the present proceedings. The effect of the statement made by the landlord is that between 11-10-1980 the date of service of notice under section 14 and 15-12-1980 as well as 20-12-1980 the dates on which he re-let the first floor tenements, he was in occupation of another building owned by him in the same locality.
8. Now the provision under discussion is new having no previous parallel in any of the legislation on the subject and is indeed a departure from the previous legislation in this field. The manifest object of the law-maker appears to be to facilitate the specified class of persons, namely, widows, minor orphans whose both parents are dead, salaried employees due to retire within the next six months or those who have already retired and persons who are due to attain the age of sixty years, within the next months or who have attained the age of sixty years, to obtain possession of rented premises belonging to them by means of the summary procedure. In the case of this special class of landlord the law presumes the urgent need of the landlord in the contingencies set out, on the happening of which the right thereby created is accrued. This intention is clear from subsection (2) of section 14 which has the effect of withholding the benefit created by this provision if the landlord "is in occupation of a building owned by him in any locality". The object of section 14, therefore, seems to be to relieve this class of landlords from the rigours of an elaborate inquiry as to the good faith of their plea for requirement of the premises for personal use and to put them in possession thereof in the shortest possible the.
9. In the aforesaid background of the object and purpose of the enactment under interpretation, the question that falls for determination is, as to the the at which the occupation of a building owned by the landlord by himself would attract the disqualification. If the material the for the application of the disqualifying provision is the date of the institution of proceedings for ejectment, then since the landlord is shown to have already let out the tenements in his occupation and was not, therefore, occupying another building of his own on the date, his argument that he is entitled to avail of the benefit of provisions of section 14(1) will prevail. But as argued on behalf of the tenant that if the landlord has obtained possession of any of his buildings at any the after being entitled to possession of a building under the said provision the privilege comes to an end, irrespective of whether he is in occupation of such other building owned by him at the the of institution of the proceedings or not, then the benefit of subsection (1) of section 14 would not be available to him.
The submission, therefore, is that since the landlord had secured the possession of to of his tenements within six months of the the at which he was due to retire, the right created under the section could not be invoked.
10. Now the tense used in a statutory provision may have a decisive effect on the interpretation of such provision but it is not an absolute test for construing a statute, for, the literal construction according to the rules of grammar although a primary rule in the matter of construction of statutes, has not been universally applied in every case. If the grammatical construction is found to be at variance with the intention of the Legislature, to be collected from the statute itself, or leads to any manifest absurdity or repugnance, it has been held that In such cases the language may be varied or modified, so as to avoid incon--venience. See Muhammad Zaki v. Rehabilitation Commissioner PLD 1962 Kar.. 285 and Islamic Republic of Pakistan v Abdul Wali Khan PLD SC 57.
Keeping these principles in mind if section 14 is construed as is contended for by the landlord, the consequence would be that a landlord of the specified class would be entitled to part with a building in his possession at the the of the accrual of the right to possession under section 14 or indeed even if such a landlord has parted with possession of any number of premises which may have fallen in his occupation before the institution of proceedings under section 14, he would still be entitled to invoke the privilege granted there under. Further, in such cases the landlord will be able to obtain possession of his rented premises even if the same is not required in "good faith" which is an essential requirement under the general provisions of section 15(2)(vii) of the Ordinance for ejectment of the tenant.
11. The question is did the Legislature intend to free this class of landlords from the fetters imposed on the generality of landlords in the matter of ejectment of tenant on the ground of personal requirement? To my mind the answer to this question must be in the negative. If the Legislature wanted to exempt this special class of landlords from the operation of this law, it would have made an express provision to that effect, as has been done in section 3 in the case of premises owned or requisitioned by, or on behalf of the Federal Government or Provincial Government. The proviso to subsection (1) of section 14 is a clear indication to the contrary. Once a landlord of the specified class rents out "the building" after the crucial the when the right accrues to him under section 14(1) he forfeits the rights given by the provision, at least in respect of that building and if he seeks the eviction of the tenant on the ground of personal requirement he must bring his case within and by means of normal provisions of section 15 of the Ordinance. Similarly he cannot take advantage of the beneficial provisions of section 14 if he is in occupation of another building in the same locality, as provided by subsection (2) of the said section and in that case to he must bring his action by means of the normal procedure and subject to the same limitations as are applicable to every other landlord. If the interpretation sought on behalf of the landlord is to be placed on the provision in question, it will amount to virtually taking out the specified class of landlords from the normal provisions, but as already explained there is no reason to place such a construction on section 14 as that does not seem to be in accord with the legislative intendment.
12. Viewed in this context the clear intendment behind the Provisional of section 14(1) was to give the benefit thereof to the landlord if at the the of the happening of the contingencies enumerated therein, he is not in occupation of another building owned by him and has not rented out "the building" after the happening of such contingencies. In other words the benefit conferred by the provision is lost as soon as the landlord comes into occupation of another building of his own or lets out the building as the case may be. In actual operation of the provision the right would accrue on the happening of the contingencies described in section 14(1) and if the landlord is not in occupation of another building of his own, the right will continue to subsist, but it will get exhausted either by the landlord getting possession of a building of his own by means of the provisions of section 14 or aliunde on coming into occupation of another such building in the same locality. Once the right is exhausted it cannot be revived by the unilateral ac; of the landlord to part with the possession of such another building and then invoking section 14 for obtaining possession of another building, of his own. This appears to be the most reasonable construction that can be placed on the provisions of section 14. The view taken by the High Court that the relevant the for the application of subsection (2) of section 14 is the date of the institution of the application for ejectment is, therefore, not sustainable.
13. A subsidiary argument advanced on behalf of the landlord may also be disposed of. The wording of the proviso to subsection (1) of section 14 was made the basis of this argument and it was contended that the use of the word "the building" therein revealed the mind of the legislature, as an intrinsic aid for interpretation of subsection (2), inasmuch as the provisions contained in the purview of first mentioned subsection were made inapplicable in the case of a particular building, for all the if the landlord rented out the same building after the happening of the contingencies mentioned in the enacting part of subsection (1). The submission was that in this view of the matter subsection (2) provided a disqualification in regard to other buildings not so let out only in case the landlord was in occupation of any other building at the the of institution of the ejectment application. It may be mentioned that the proviso in question was inserted by the Sind Rented Premises (Second Amendment) Ordinance, 1980 by substituting it for the originally enacted proviso which reads as under:- "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."
The clear intendment of the law as it stood before the amendment was that the landlord was required to invoke the benefits of subsection (1) of section 14 within a period of six months from the date of retirement or attaining the age of sixty years or becoming a widow or orphan. Apparently there could be no ambiguity regarding the interpretation of subsection (2) as construed in the foregoing part of this judgment at that the. The disqualification contained therein clearly referred to the date when the contingencies mentioned in subsection (1) in its main enacting part happened, with the result that if at that the the landlord `was in occupation of a building owned by him in any locality, the special privilege conferred by subsection (1) did not accrue to him and the purpose of the proviso to subsection (1) only was to provide a the limit for the subsistence of the privilege i.e. For a period of six months if the privilege did accrue. In this context of the legislative background, the only change brought about by the amendment was to remove the the limit originally stipulated and exclude the application of subsection (1) in case the landlord rents out a building after the accrual of the right and forfeit the same. In fact subsection (2) visualizes the situation where a landlord is already in occupation of a building of his own when the rights conferred by subsection (1) accrue or continue to vest and the proviso to subsection (1) as amended deals with the situation after the accrual of the rights where the landlord rents out al building after the happening of the contingencies mentioned above.
14. It has been held in some cases, as pointed out by Crawford in r his book "Statutory Construction" that three functions are to be ascribed to the proviso, namely, (i) to exempt something from the enacting 4, clause, (ii) to qualify or restrain its generality, and (i.e) to exclude some possible misinterpretation of it as extending to cases not intended by the legislature. It is also laid down that the proviso should not be used to enlarge the operation of a statute, although occasionally it has been used for this purpose. In the present case the proviso is being sought, on behalf of the landlord, to extend the meaning of the enacting part by confining the disqualification to the building, which has been let out, and thereby extending the privilege in respect of the other buildings of the landlord. Such construction will be wholly repugnant to the intent and object of the provisions of section 14 and, therefore, it appears that the purpose of the proviso was to avoid the extension' of the privilege by laying down that the privilege was not available to, the landlord if he rents out any building which but for that would have been available to him. Having regard to these considerations it appears quite clear that the intention of the Legislature was to grant the privilege to such a landlord to get possession of one of his buildings by the summary procedure, which privilege would lapse if he already has in occupation any other building either before or after the the of accrual of the privilege in terms of section 14(1) or if he lets out any of his buildings after the relevant the specified in the provision in question. The words "the building" have obvious reference to the words "a building" occurring in the enacting part of the subsection and are, therefore, to be read likewise in the proviso also. Accordingly the words "the building" in the proviso would mean "the building" of which the specified person in subsection (1) is the "landlord", according to the meaning of the term in section 2(f) of the Ordinance. This is not to disturb or upset the ratio of Abdul Majid v. Naimun Nisa Begum 1985 SCMR 212 which has not been challenged before us. In this view of the matter the landlord was disqualified from invoking the provisions of section 14 of the Ordinance. His application for ejectment was, therefore, not competent in law.
15. Before concluding this judgment, although the learned counsel for the landlord did not seriously press this argument, since it is relevant to the contention noticed in the leave granting order, it may be briefly dealt with. It was urged on the ratio of the case of Abdul Majid referred to above that even if the landlord is held to have been in occupation of to tenements in his building within the relevant the the fact would be immaterial because those tenements were not suitable for his needs. In Abdul Majid's case the landlord was in occupation of residential premises and had sought the eviction of his tenant under section 14 of the Ordinance from non-residential premises to be put to commercial use. The tenant objected to his eviction on the provisions of section 14(2) as the landlord was already, in occupation of another building of his own. The objection was overruled by this Court on the ground that "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)". In the present case the to rented premises on the basis of which objection has been raised by the tenant were admittedly residential premises as is the premises from which eviction is being sought in these proceedings. Therefore, the reported case is distinguishable on facts because if a nexus has to be established between the personal use for which the eviction is sought and the premises in occupation of the landlord, as observed by their Lordships, the test is satisfied in the facts of the present case, inasmuch as, all the premises are put to residential use.
Even according to their Lordships the intent underlying section 14 was "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 being put to such use for which purpose eviction is sought". The underlined words in the observation of their lorships clearly mean that if the other building was capable of being put to the use for which eviction is being sought, then the bar contained in subsection (2) would be immediately attracted. Since the to tenements on the first floor, which were rented out by the landlord, were residential premises and the premises in dispute is also being asked for residential purpose, even according to the ratio of the case relied upon by the learned counsel, the landlord was not entitled to possession under section 14. His remedy in such case would lie under section 15 under which he will have to satisfy the Rent Controller that his requirement is in good faith. The dictum laid down by their Lordships cannot be stretched so far as is contended by the learned counsel so that no distinction would remain between the provisions of sections 14 and 15. Unsuitability of another building in the occupation of the landlord would, therefore, be no ground for not applying the bar contained in subsection (2) in the context of the purpose for which the eviction is sought under section 14.
16. The result is that the appeal succeeds and the order of eviction passed against the appellant is set aside. In view of the complicated point of law involved in this appeal the parties are left to bear their own costs.