1. ' Mr.A.H. Junaid respondent in this appeal was employed in some senior post with the Pakistan Burmah Shell Limited. He owns a house bearing No.19/93 Muslim League Quarters, Nazimabad, Karachi. He let out this house to one S.Moinul Hasan son of Anisul Hassan in whose name the present appeal has been filed but admittedly, who for the last several years is staying in Saudi Arabia and it is his younger brother who is residing in this house. The tenancy was created by an agreement of lease dated 30th January, 1975 which is filed in the proceedings as Annexure 'A'. Rent of the premises was to be Rs.400 per month. As the respondent was serving as Marketting Service Manager, he had to stay out of Karachi and perhaps, this agreement was executed through one S.Aslam. It is to be noted that the respondent has not only been mentioned as the landlord of this property but as is evident from the opening part of this agreement he has been shown as the absolute owner of the house. The relevant part may be quoted:- "Whereas the lessor abovenamed is the sole and absolute owner of all that house No.19/9-J, Mulsim League Quarters, consisting of 3 bed rooms, kitchen and covered verandah, 2 attached baths, drawing and dining combined, car-garrage, including ceiling fans electric motor etc. etc. (hereinafter referred to as the demised premises)."
2. ' Respondent by a notice dated 13th February, 1982 Exh.A/5 informed the appellant that he would be retiring from service from 28th February, 1982 and required the house for his personal bona fide use. This was a notice in terms of section 14 of the Sind Rented Premises Ordinance, 1979. The appellant was requested to vacate the house within 65 days of the serve of this notice. It is admitted position that this notice was duly served on the appellant. The appellant failed to comply with this requisition. The respondent/landlord filed a rent application being rent application No.2730/82 on 1st of July, 1982 under section 14 of the Sind Rented Premises Ordinance praying therein that the opponent/appellant be ejected from the premises and the possession of the house be delivered to the applicant. The appellant filed written statement contesting the plea, in the application. The main defence raised by the appellant was that the respondent/applicant was not the owner of the property. That the respondent/applicant has obtained a voluntary retirement from service which must be taken to be a resignation and not retirement. As such section 14 was not applicable. It was further contended that adjacent house bearing No.19/10J occupied by Tahir Junaid son of the respondent was owned by the respondent and as such he did not require the house in dispute. The parties led evidence. The respondent filed his affidavit-in-evidence, and was cross-examined. The appellant did not appear. Appellant's brother Azizul Hasan claiming to be the attorney of the appellant, however, filed affidavit-in-evidence and was cross-examined. Following documents were produced on behalf of the respondent/landlord:
(1) Notice dated 13th February, 1982 under section 14 Exh.A/5 from the respondent to the appellant requesting him to vacate the premises.
(2) Photostat copies of the rent receipts paid by the respondent to his landlord showing that he is occupying a rented premises, Exh.A/8.
(3) Original lease deed executed by the K.D.A in favour of the respondent Exh.A/9.
3. ' It was stated by the respondent in evidence that sometimes in 1972 he had made on oral gift of this house to his wife Mst. Mahmooda Junaid. Subsequently by a return gift Mst. Mahmooda Junaid had gifted this house to the respondent on 10-10-1978. This gift from Mahmooda Junaid to the respondent was evidenced by a declaration in writing dated 2nd of April, 1979. Photostat copy of this declaration was filed as Exh.A/10. It is further stated that by a letter written in April 1979, K.D.A. were informed of this return gift and were requested to make necessary change in their record.
4. This letter is Annexure A/11. The receipt of this letter is not accepted by the K.D.A. but one Khalil Ahmed a clerk in the Office of Director of Lands K.D.A who was examined on behalf of the appellant admits that on 21st December, 1982 an application from Mst. Mahmooda Juanid was received by the K.D.A. intimating that she had gifted back the house to the respondent and requesting a consequential change in their' record. This application was replied back by the K.D.A. by their letter dated 26th January, 1983 intimating the applicant to fulfil certain formalities so that action could be taken on her application. It is also admitted that in this application dated 21-2-1982 a reference to the earlier request dated 2nd of April, 1979 was made.
5. As the formalities remained unfulfilled the records of the K.D.A. could not be changed and none of the respondents could not be shown as owner in the K.D.A. record. On this evidence the learned Rent Controller proceeds to examine the contentions of the parties and formulated the following three issues for determination:-
(1) Whether there existed relationship of landlord and tenant between the parties?
(2) Whether the applicant is entitled to eject the opponent according to the provisions of section 14 of the Sind Rented Premises Ordinance, 1970?
(3) What should the order be?
6. ' The Rent Controller has answered first two issues in the affirmative and allowed this application for ejectment directing the appellant to deliver vacant possession of the premises to the respondent within 30 days of the order. Being aggrieved of this order the appellant has filed this appeal.
7. ' Mr.Mirza Muhammad Kazim learned Advocate for the appellant has contended that the application is not competent and merits dismissal because the respondent is not the owner of the premises in question. In para. 1 of the written statement the opponent has stated as follows:- "(1) That the house No.1.J-19/10 Muslim League Quarters, Nazim abad and house No.1-J/19/9 are both owned by Haji Abdul Aziz s/o Shaikh Aminuddin. The K.M.C. demand notice showing Haji Abdul Aziz as owner of house No.1-J/19/9 issued by K.M.C. is annexed with written statement marked as 'A' and this proves that the applicant is not the owner of 1-J-19/9 hence the above application is not maintainable."
8. ' Haji Abdul Aziz who is alleged to be an owner of the premises is the father of respondent and admittedly died in 1963. This fact itself shows the futility of the allegation in para. 1 quoted above.
9. But the contents of para.2 of this very written statement show that this plea is contradicted by the appellant himself. Para.2 of the written statement is as follows:- "(2)That house No.1-J-19/9 has been gifted to Begum Mahmooda and this house has been transferred to the ownership of Begum Mahmooda as per K.D.A. record. This fact further proves that applicant is not the owner of 1-J-19/9 Muslim Quarters, hence above application is not maintainable."
10. ' The above two pleas are inconsistent with each other. In para.1 Abdul Aziz is said to be the owner while in para. 2 Begum Mahmooda is treated to be the owner having acquired this property under a gift made by the respondent who happens to be her husband. In my opinion these transfers between the family touching the ownership of the property are not germane for the purpose of resolving the controversy between a tenant and the landlord. So far as the tenant is concerned he is A bound by and should honour the initial agreement of tenancy. Th jursidiction of the Rent Controller to decide the question of relationship of landlord and tenant is very limited indeed. The Rent Controller is not the regular Court to open up controversy relating to the title in the property. Under definition of "landlord" given in the Ordinance he should treat as landlord "any person who is for the time being authorised or entitled to receive rent in respect of such premises". In this case the appellant was inducted into the premises under the agreement dated 30th January, 1975. He has been paying rents under this agreement. In this agreement the respondent has been described to be the sole and absolute owner of the house. No notice of change has been given by anybody to the appellant notifying any change of ownership of the house and it is not open to the appellant to introduce imaginary ownership on the basis of some entries in records here and there. Obviously there are explanations for the discrepencies in the records and the forum of the Rent Controller should be the last place to resolve those controversies. To rely on record showing Abdul Aziz as the owner in some of the records although admittedly he died in 1963 is to say the least anything but a clean and bona fide conduct. In this view of the matter the first issue has been rightly decided by the learned Rent Controller holding that a relationship of landlord and tenant does exist between the parties and the application has been filed by the landlord in the proper form.
11. ' Now to take up the second issue the ejectment application has been filed under section 14 and the learned counsel has raised a plea that remedy under section 14 is available only to an owner of the property. In this context the learned counsel has advanced the argument that even if the respondent is deemed to be a landlord the application under section 14 will not lie. Relevant part of section 14 may be produced for ready reference before examining the contention of the learned counsel.
12. "14. (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:
(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.
13. ' The definition of "landlord" as per clause 2(f) is as follows:- "The 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."
14. ' The learned counsel contends that even an attorney or agent of an owner would be covered under the definition of landlord and would be entitled to initiate proceedings against the tenant but the counsel contends that such a landlord cannot apply for ejectment on the ground of his personal need under this section. Obviously under this definition even a Rent Collector who is collecting rent on behalf of the owner can competently lodge proceedings for ejectment of a tenant. But can such a person though competent to apply for ejectment of a tenant on account of other consideration file ejectment proceedings on ground of personal need. The intention under section 14 seems to be that the special treatment should remain confined to the class of landlords who are owners. As such the attorney, agent or Rent Collector cannot resort to the remedy provided under section 14 and 15(2). (vii) unless he is an owner. Careful study of section 14 and 15 would make it apparent that under the rent act grounds of ejectment available to an owner of the property are of two categories. One relating to the property and the other in which personal qualification and attributes of the owner are of paramount consideration. In the former such ground as default in payment of rent, reconstruction, subletting, change of user of the demised premises, infringement of terms of tenancy, creating nuisance on the premises, can be urged against tenant and his ejectment obtained by filing an application before the Rent Controller. Such application may be filed by the owner himself or by "any such person who is for the time being authorised or entitled to receive rent in respect of such premises". The other class of cases which can form the ground of ejectment depriving the tenant from the protection under rent Act and relating to the personal qualifications of owner are as follows. In this class of cases only such owners can apply for ejectment who possess the following qualifications:-
(1) A widow.
(2) A minor whose both parents are dead.
(3) Salaried employee who has retired or is due to retire.
(4) 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.
(5) A landord requires the premises in good faith for his own occupation or use or the occupation or use of his spouse or any of his children. [Sec. 15(2)(vii)].
15. ' Now can it be said that the Rent Collector or an agent who is of the owner of the property but a landlord within the meaning of ection 2(f) of the Sind Rented Prmises Ordinance is competent to pply for possession of the premises if he needs the premises for his wn occupation or for occupation of his spouse or any of his children, erhaps not. Similarly an agent or attorney who has been collecting ent on behalf of a lady who has become widow or a minor whose both arents are dead or any employee who has retired or attained the age f 60 years cannot spring up to claim possession for himself on the happening of the eventualities relating to the owner for whose benefit his agent was working and technically speaking is covered by the efinition of landlord. To hold otherwise is bound to create a confusion. The special concession allowed to the owners of the property may be xploited by the owners themselves if the term landlord used in section 14 and section 15(2) (vii) is interpreted in its extended meaning as given in the definition clause in the Ordinance. Even a non-resident wner or an owner holding other property would appoint a Rent Collector who in turn would press his demand for personal need successively nd throw out a tenant from the premises. I, would therefore, hold. that the term landlord used in section 14 and even in subsection 2(vii) of section 15 has been used for the owner of the premises.
16. ' In support of his contention learned counsel for the appellant has relied on P L 1961 Dacca 25 and (1945) 2 All E.R.P.55.
17. ' In the Dacca case the provisions of section 17 of the East Bengal Premises Rent Control Act, 1953 entitling a landlord to evict his tenant on the ground of personal need were examined by a Single Judge of that Court in revisional jurisdiction. The definition of landlord under that Act and the Sind Rented Premises Act is more or less the same. I may produce the definition of the term "landlord" in section (2)(4) of that Act:- "Landlord" means any person who for the time being is receiving, or is entitled to receive, the rent of any premises, whether on his own account, or on account or on behalf or for the benefit of any other person, or as a trustee, guardian or receiver for any other person, or who would so receive the rent or be entitled to receive the rent if the premises were let to a tenant...
18. ' The learned Judge on this definition of landlord examined the clause relating to ejectment of a tenant.Paras .9 and 10 of the judgment may be quoted:-
(9) "On the other hand, it is urged by the petitioners that if this interpretation is accepted, then, the entire provision of section 17 of the Act could, at the sweet will of the landlord, be rendered entirely nugatory, for, by granting a power-of-attorney to any person in need of the premises, the landlord could evict the tenant with impugnity. It is true that the definition of landlord given in the Act is of a very wide character and a constituted attorney may well come within that definiticn but, reading section 17 as a whole, it appears to me that by specifying the persons for whose occupation the landlord may lawfully evict a tenant the Legislature clearly intended to specify the category of persons whose requirements should be considered to be valid requirements under the Act. Since a landlord includes, according to the definition guardian, trustee or receiver there would have been no point in the Legislature mentioning in clause (c) to the proviso in section 17(1) that the bona fide requirement should be either for the own occupation of the landlord or for the occupation of any person for whose benefit the premises are held".
(10) "Again by subsection (4) of section 17 of the said Act, it is provided that, if the premises are not occupied by the landlord or such person within two months of the date of vacating of the premises by the previous tenant, then the Rent Controller, may, on the application of the previous tenant, restore possession of the premises to him. This rather seems to indicate that in section 17 of the said Act the word "Landlord has been used in its ordinarily accepted sense as the owner of the premises or the person entitled to receive the rent from the tenant and not to include persons receiving rent on behalf of such a person. Indeed if the occupation of this wide class of persons is to be held to be a sufficiently valid and bona fide requirement for evicting a tenant then even a Rent Collector may well come within this category, for, he would also be a person receiving the rent of any premises on behalf of his employer landlord and for the benefit of that landlord and would thus be a landlord within the definition clause. This would be giving an absurd interpretation to clause (c) of the proviso to section 17 of the Act. In the circumstances, I am of the opinion that the use or occupation of a constituted attorney is not a use or occupation which can be considered to be a sufficiently bona fide requirement for the purpose of evicting a tenant."
19. ' The other case relied upon by the learned counsel is Sharpe v. Nicholos decided by the Court of appeal. In this case widow of the original owner applied for ejectment describing herself in the plaint as "owner as personal respresentative" of the deceased landlord. The provision of law for securing ejectment of a tenant on the ground of personal need was as follows:- "A Court shall for the purpose of section 3 of this Act, have power to make or give an order or judgment for the recovery of possession of any dewlling-house to which the principal Acts apply or for the ejectment of a tenant therefrom without proof of suitable alternative accommodation (where the Court considers it reasonable so to do) if....... (h) the dwelling-house is reasonably required by the landlord., for occupation as a residence for (i) himself, or (ii) any son or daughter of his over 18 years of age: or (iii) his father or mother."
20. ' Martan, J. who wrote the dissenting judgment appraised the competency of the widow to file the ejectment proceedings in the following words:- "There was no evidence at the trial as to the beneficial ownership of this particular cottage. The plaintiffs whose case, as I have shown from their pleadings, is based upon the allegation that they were the owners as personal representatives. I cannot find any admission at the trial in any shape or form that the widow had any beneficial interest in the house. I do not know in the least who was entitled to the house. For all I know, Sharpe may have made a will leaving to a nephew or to any other person. In those circumstances, one must consider; can it be said that the dwelling-house is reasonably required by landlord................... for occupation as a residence for himself" when the plaintiffs are legal personal representatives suing in the capacity and one of them wants to live in the house: in my opinion, such a case is not within the terms of para. (h) at all. Strange results would follow if that were not so. For instance you might have four legal personal representatives, none of whom was related to the testator at all, and one of them might require the house as a residence for himself, having no beneficial interest whatsoever in the property. I am ciearly of opinion that such a case could not possibly be within the terms of para. (h). It is also to be observed that the words "himself or any son or daughter of his................ or his father and mother" seem to refer to a person who is the landlord not in the sense that he is one of several personal representatives but in the sense that he is the sole owner of the property subject to the tenancy. It seems to me, therefore, that the plaintiffs entirely failed to prove that they came within para. (h) and if they failed to prove that they came within para. (h) it seems to me that the words of section 3 of the Act absolutely precluded the county Court judge and would preclude this Court, from making any order for the recovery of possession."
21. ' Reverting to the case on hand the appellant has not been able to show how the position which was prevailing on 30th January, 1975 when the appellant was admitted to the premises by the respondent under a lease agreement describing respondent as the sole owner of the property sufferred any change so far as the appellant is concerned. Assuming for a moment that allotment of this plot has been shuttling between the husband and wife one making an oral gift to the other and after some time the other regifting the property to the former but none ever notifying the change to the appellant/tenant would it create a ground for the appellant to deny the title of his landlord and seek to open up this issue before the Rent Controller who is not a civil Court but a forum of special jurisdiction with limited power conferred on him under the special statute. Mere entries in the records here and there cannot be considered as conclusive evidence of any change of ownership. These entries, unless the interested parties are allowed to explain and contest the validity or legality of these entries cannot be relied upon. If a tenant is permitted to meddle with these sensitive issues within the family it would require an eloborate enquiry pertaining to the validity of gift and effectiveness of the declaration and consequen tial changes in the various records of the Government and Semi-Government agencies. Naturally this is beyond the jurisdiction of Rent Controller to conduct such enquiry, because this could covert the forum of this special jurisdiction to a regular Court. The enquiry would require not only the presence of the landlord and tenant but other relations, transferees and beneficiaries. The fact that earlier gift has been noted by the K.D.A. and the other gift by the wife to the husband which took place some time on 10-10-1978 has for some technical reasons not been recorded by the K.D.A. should not be allowed to defeat the claim of the landlord in these proceedings. I would therefore hold that there is no substance in this plea of the appellant and the contention fails. The respondent is also owner of the property and is competent to claim possession of the premises on grounds of personal need.
22. ' The next argument of the learned counsel was that another quarter bearing No.19/10 situated adjacant to this quarter which was the property of the father of the respondent must have been inherited by the respondent. This plea is also far-fetched. We do not know how many other heirs have inherited the property and in what proportion.
23. ' Moreover, assuming that the present respondent has inherited a major share in quarter No.19/10 then unless it is shown that this is in his occupation he cannot be denied the relief under section 14.
24. Proviso to section 14 has been relied upon by the learned counsel for the respondent to press his arguments that it is not merely owning a property but the property should be in actual occupation of a landlord if he is to be denied the concession under section 14. For ready reference section 14(2) may be reproduced below:- "The landlord shall not be entitled to avail the benefit of sub section (1) if he is in occupation of a building owned by him in any locality."
25. ' As earlier stated the respondent is occupying rented premises for which he is paying rent at the rate of Rs.2,500. In support of this statement on oath the respondent has filed a certificate from his landlord. Even if the certificate is excluded from the evidence on account of lack of formal proof there is nothing to rebut the oral statement on oath of the respondent to show that he is not living in the rented premises muchless to show that he is occupying the adjacent quarter. Moreover, it is admitted that one of the sons of respondent namely Tahir Junaid is occupying this quarter with his family. The mere fact that the respondent who used to remain on touring duties and had no permanent adress in Karachi has, on certain occasion used this address in some of his correspondence would not be enough to show that he is occupying this quarter for purpose of his residence. In this view of the matter this plea also fails.
26. 'The next contention of the learned counsel for the appellant was that the retirement has been manipulated and obtained voluntarily. Assuming it to be so, it should not make any difference so far as his need is concerned once it is proved that the employment has ended and the respondent is no more in service. It remains immaterial whether his service was terminated by the employer or the termination was brought about at his own request. Section 14(1) cannot be burdened with additional requirement that the retirement of the salaried employee should be a forced retirement and not one obtained at the request of the employee. There may be cases where an employee, on account of indifferent health or other domestic problems may choose to retire and give up the employment and thus falling in need of his own house for his personal use.
27. ' Learned counsel for the appellant has relied on two cases PLD 1983 Kar. 570 and PLD 1984 Kar. page 141.
28. ' In PLD 1983 Kar. 570 Kamruddin v. Hakim Mahmud the landlord wanted a shop for his personal use. His request for ejectment of the tenant was rejected by the Court below on the ground that he had suppressed the fact that he had two more shops. That he had a third stop-- in which he was running carpet business. Not only he had suppressed This fact in his application, he had not brought any material on record to show that the shop already in his possession was not sufficient for his requirement.
29. ' In PLD 1984 Kar. 141 Shakir Hussain Chishty v. B.A.Breganza the landlord had applied for ejectment of his tenant from a two-roomed flat. The landlord was found to be in occupation of several other flats in the same building and also owned a flat in Al-Azam Square Karachi a fact he had not revealed in his application. The appeal was dismissed with the following remarks: "On the basis of the evidence it can be observed that there are 13 to 17 persons including the children in the family of the appellant, who reside in the house in question and that there are about 14 to 17 rooms in occupation of the appellant and his said family members. The two tribunals have found that the accommodation available with the appellant in the said house is sufficient for the appellant and his family members and as this finding is based on evidence, I find no reason to interfere with this finding. Further, as observed earlier, the appellant had neither disclosed in his ejectment application nor in his examina tion-in-chief about the ownership of the flat in Al-Azam Square, located in the same urban area as the premises in question, and that it was not established that the said flat was occupied or if vacant it was not suitable for his son's (Masoodur Rehman) accommodation. In this view of the matter the requirement of section 13(3)(a)(i)(b) of the 1959 Rent Ordinance has not been fulfilled by the appellant and as such his ejectment application could not have been granted."
30. 'It is evident that the two cases are distinguishable from the case on hand. The Rent Controller has found that the respondent/landlord had no other house. That he was living in a rented house which h had to vacate after his retirement from sevice in the Burmah Shell and as such he needs a house for his use.
31. ' Learned counsel for the respondent has relied upon 1983 CLC 723 where it was held that the expression personal need and personal requirement used in section 14 and 15, respectively do not mean that there is any real distinction between the two. Reading the two sections together one distinction is apparent that need of a landlord under section 14 is not subjected to the rigour of certain conditions like bona fide and good faith prescribed for a landlord seeking possession under section 15. In other words relief claimed under section 15 is subject to E bona fide and good faith while the need under section 14 does not carry any such condition.
32. 'The arguments were considered by the learned Rent Controller and he has in his order thoroughly examined them and reached the conclusion that the requirements of section 14 have been fulfilled and the respondent is entitled to possession as a retired employee. The conclusion cannot be said to be perverse or unjustified by the situation of the case. This appeal is therefore dismissed with costs. The appellant is directed to handover vacant possession of the premises to the respondent within one month from the date of this order.