' NAIMUDDIN, J.-The following questions have been referred to this Full Bench for answer.
"(1) Whether notice under section 14 of the Sind Rented Premises Ordinance calling upon the tenant to vacate the premises within 60 days of the receipt of the notice is valid and legal ?"
(2) Whether ejectment application under section 14, Sind Rented Premises Ordinance filed after service of such notice is maintainable ? "
2. The reference has been necessitated due to divergence of opinion on the interpretation of the provisions of section 14 of the Sind Rented Premises Ordinance, 1979 (hereinafter called the Ordinance) which reads as follows :- "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 60 (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."
3, In the instant case the appellant/landlord served a notice dated 21.11-1981, wherein he gave to the respondent time to vacaXXXV1IIte the premises within two months. The notice reads as follows :- Karachi : Dated 21-11-1981.
"To Mirza Muhammad Hassan, R/at Quarter No, 55/1, Muslim League Quarters, Nazimabad, Karachi.
Sir, ' This is to inform you that you are my tenant in respect of Quarter bearing No, 55/1, Muslim League Quarters, Nazimabad, Karachi, at the rate of Rs, 140 per month. You are further informed that I am a Government employee and presently I am on Leave Preparatory to Retirement of 304 days and I shall be retired from my services from 1st June, 1982 and after my retirement I shall settle myself with my family at Karachi.
' Therefore, you are requested to hand over the vacant and peaceful possession of m quarter bearing No, 55/1, Muslim League Quarters, Nazimabad, Karachi, within two months from the receipt of this notice, as the same is required for myself and my family members, failing 'hick I shall be compelled myself to file an ejectment case against you in the competent Court of law."
4. By another notice dated 9-12-1981, he again gave time to the respondent to vacate the premises within two months of the receipt of the notice. The notice reads as follows :- "To Karachi, dated 9th December, 1981.
Mr. Mirza Muhammad Hassan, House No, 55/1, Muslim League Quarters, Nazimabad, Karachi-18.
' Notice.-Under section 14 of the Sind Rented Premises Ordinance, 1979.
' Dear Sir, ' Under instructions and on behalf of my client, Mr. Barkatullah Khan, son of Mr. Muhammad Sayeed Khan, Muslim, adult, resident of 53/4, Muslim League Quarters, Karachi, I write to you as follows :-
(1) That my clien, is the owner and landlord of House No, 55/1, Muslim League Nazimabad, Karachi, and you are tenant of the said premises the last 15 years, at an agreed monthly rent of Rs, 140.
(2) That my client is a salaries Government employee and he is going to be retired from his services within the next six months i,e, from 1st June, 1982.
(3) That my client is going to attain the age of sixty years within the next six months. His date of birth is 1st June, 1922.
' That my client requires the premises for his personal use and occupation. He does not own any ether house except the one which is in your occupation.
' I therefore, call upon you to vacate the House No, 55/1, Muslim League Quarters, Nazimabad, Karachi, and hand over its vacant possession to my client within two months from the date of the receipt of this Notice failing which my client shall take legal action in proper Court of Law against you for your ejectment from the premises in question entirely at your risk as to costs and consequences."
5. In the written statement filed, a plea was taken that such a notice was not according to law and void. This plea did not find favour with the Controller and he held that the notice was valid. He however, rejected the application on the ground that the appellant was occupying another premises owned by him in the same locality. The order has therefore, given rise to the appeal, wherein the above-stated questions have been referred.
6. While arguing the appeal the learned counsel for the respondent assailed the finding of the Controller that the notice was valid. Both the counsel relied on a number of decisions of this Court which were in favour of their respective clients and expressed contrary views on the interpretation of the provisions of section 14 of the Ordinance, resulting as already stated, in the reference.
7. We have heard Mr. Allauddin Ansari learned counsel for the appellant and Mr. Zafar Hadi Shah learned counsel for the respondent. The decisions cited by the learned counsel for the parties or noticed by us having relevancy to the validity of notice are as follows :- " Wali Muhammad v. Mrs. Hameeda PLD 1981 Kar. 794 ; A. S. Mughal v. Mst. Khurshid Azmat Ali PLD 1982 Kar, 406 ; Wahid Shah v. Haider Mirza PLD 1983 Kar. 628 ; Younus v. Mrs. Hameeda 1982 CLC 580 ; Mir Mustafa Ali Khan v. Mst. Safia Maqsood 1983 CLC 349 ; Syed Riazu! Hassan Shah v. Zamirul Haq 1983 CLC 2274 ; Aurangzeb Dar v. S. M. Alam 1983 CLC 3220 ; Abdul Razzak and 6 others v. Mst.
Yasmeen Khanum and 4 others 1985 CLC 1048 ; Khawaja Muhammad Razzaque v. Omar Farouk 1982 CLC 318 ; Muhammad Iqbal v. Shaikh Ayaz 1984 CLC 1913 ; Muhammad Ashfaq v. Sideman 1985 CLC 2374,"
8. In the first 8 cases the provisions of section 14 of the Ordinance have been liberally construed or applied while in the last three cases it was in effect held that the landlord to have the benefit of the provisions of section 14 of the Ordinance should strictly comply with the conditions mentioned therein and a notice which is not in accordance therewith is invalid.
9. In the first case of Wall Muhammad and another v. Mst. Hamida Bai (1), which has been followed by Z. C. Valiant, J., in A. S. Mughal v. Mst. Khurshid Azmat Ali (2) and by Ali Nawaz Budhani,J. In Wahid Shah v. Haider Mirza (3), the facts were that the landlord had not served notice of two months as required under section 14 of the Ordinance and had filed application for eviction even before the expiry of two months from the date of service of notice. He had however, served a notice
(1) P L 1) 1981 Kar. 794 (2) PLD 1982 Kar. 406
(3) PLD 1983 Kar, 678 dated 30-1-1980, and another notice requiring the tenant to hand over peaceful possession of the premises forthwith.
10.' Dealing with the provisions of section 14 of the Ordinance the learned Judge observed that it was clear that section 14 of the Ordinance seems to provide expeditious summary remedy to a widow, orphan, a person who has retired from service or has attained the age of 60 years and that if technicalities are to be strictly observed and enforced then the very object of the said provisions would be frustrated. The learned Judge further observed that he was inclined to hold that the Court is to see whether there has been substantial compliance of the provisions and that the spirit of section 14 of the Ordinance seems to be that a tenant is to be provided two months period before an order of ejectment is passed under the said provisions.. I may here quote the relevant observations which appear at page 797 of the report :- "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 order of ejectment summarily under the above provisions. 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 then. 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 of service of the notice and from the date of filing of the ejectment case."
' It was further observed that technical objection like validity of a statutory notice are to be raised at the earliest. So that defect if any, may be rectified, and a party cannot be permitted to raise such a plea at the appellate stage particularly, when no material prejudice has been caused to him.
11. This case was taken to the Supreme Court (reported as Wali Muhammad and another v. Mst.
Hami Ia Bai (I) and the judgment of the High Court was upheld but on the ground of failure to raise the objection at proper time and I quote from the judgment :- "It is true that the period prescribed is two months and the notices suffered from this infirmity, but if this objection had been taken before the Rent Controller, the defect would have been rectified by the respondent and the delay of an order would not have ensued. The prescribed period is for the benefit of the tenant and is intended to allow him sufficient time to vacate the premises and further he cannot be objected summarily under section 14 of the said Ordinance without the efflux of time. It is the statutory requirement, U) 1983 SCMR 191 but in the circumstances of the case as the appellants has failed to raise this objection at the earlier stage and allowed a year to pass, the High Court was correct in holding that there was no substance in this legal objection which was imminently against the spirit of the provision which allowed summary relief to the widow."
12. It is clear from the observation made in the above case that the Supreme Court ruled that a notice which was not for a minimum period A of two months as required by the provisions of section 14 suffered from! Infirmity.
13. In the case of A. S. Mughal it was observed by Z. C. Valiani, J., that if the provisions of section 14 of the Ordinance as to notice were sufficiently complied with then technicalities on which the counsel for the appellant had tried to rely could not be permitted to frustrate the provisions of section 14 of the Ordinance and in this regard he relied on the aforesaid judgment in Wali Muhammad's case.
14. In the case of Muhammad Younus v. Mst. Hameeda (1), Ajmal Mian, J., overruled the objection to such a notice for the reasons :- "If technical lities 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."
15. In Wahid Shah v. Haider Mirza (2), Ali Nawaz Budhani, J., has simply relied on the case of Wali Muhammad (supra) and referred to the observation made therein.
16. In Mir Mustafa All Khan v. Mst. Safia Maqsood (3). Saeeduzzaman Siddiqui, J. Held that where a landlord makes an application under subsection (3) of section 14 of the Ordinance, on the allegation that notice was served on the tenant before filing the application as required under subsection (3) of section 14 of the Ordinance and fails to substantiate his allegation regarding service of prior notice at the trial then the object of notice under this section can be achieved if the order is made by the Controller for eviction of tenant after expiry of the period of two months from the date of service of notice of application of the landlord on the tenant. He further observed that service of no:ice of application of landlord on the tenant and expiry of period of two months in such circumstances,' would amount to substantial compliance of provision of subsection (1) of section 14 of the Ordinance and that it would not be proper to non-suit a landlord on this technical ground as he could again bring another application after service of fresh notice to which there could be no defence if he otherwise fulfilled other qualifications laid down in section 14 of the Ordinance.
17. In the case of Sved Riazul Hassan Shah v. Zamirul Haq (4), Fakhruddin H. Shaikh. J., has simply agreed with the decision of Ajmal Mian, J., in Wali Muhammad v. Mst. Hameeda Bai (supra).
18. In the case of Aurangzeb Dar v. S. M. Alam (5), B.
0. N. Kazi, J..
(1) 1982 CLC 580 (2) PLD 1983 Kar. 628
(3) 1983 CLC 349 (4) 1983 CLC 2274
(5) 1983 CLC 3220 observed that the mere fact that in the notice it was stated that the tenant should vacate the premises within two months instead of on expiry of two months was if at all, a matter of technical defect and the learned Judge too relied on Wall Muhammad v. Mrs. Hameed (supra), and he observed as follows : "that if technicalities are to be strictly enforced, the very object of the provision of section 14 will be frustrated and that the spirit of section 14, seemed to be that a tenant is to be provided two months' period prior to ordering of ejectment summarily."
19. Taking up the last cited case namely, Abdul Razzak and 5 others v. Mst. Yasmeen Khanum and 4 others (I), which is in line with the above-mentioned cases it may be stated that the learned Judge expressed the view that the period of two months is co-related to the order of eviction that would be passed by the Controller under section 15(3) of the Ordinance and not with the launching of the ejectment proceedings that may have to be filed if the tenant refuse to comply with the request contained in the notice. The learned Judge in this case further observed "that the notice is intended to "inform the tenant that he or she needs the building for personal use and require him to deliver vacant possession of the building........"But for such vacation the tenant must be given at least two months time. The learned Judge was of the view that the object of the notice in this section is not intended to be a condition precedent to the launching of the action for ejectment as happens to be the case in some statutes. The learned Judge proceeded to give an example and I quote :- "Under old section 80, C. P. C., there was a bar to filing any suit against the Government unless a notice was not served on the Government concerned. I am prepared to go to the extent that in certain cases the filing of the ejectment application may itself be treated to be a notice of desirability of the landlord to occupy the premises. In such cases the ejectment application must be entertained for adjudication but no order for eviction would be passed against the tenant before the expiry of at least two months from the date of service of the filing of the proceedings on the tenant and the writ of ejectment. This may appear to be an extreme view but I see no difficulty in interpreting the section in the above terms for the object .Of serving a notice is to buy time for the convenience of the tenant and not to bless the ejectment proceedings with a rebuttal in the shape of a notice which I may again repeat is not a condition precedent for filing an action but merely as "information" to the tenant."
20. Having mentioned all the cases in which the provision of serving the notice of section the Ordinance have been liberally construed, I now, proceed to examine the provisions of sections 14 and 15 of the Ordinance in the light of the well-settled principles of interpretation of the statutes.
21. First, I shall examine the provisions of section 15 of the Ordinance which are general provisions.
According to these provisions where a landlord seeks eviction of the tenant otherwise than is accordance with the provisions of section 14 of the Ordinance, he has to prove that he
(1) 1985 CLC 1048 requires the premises in good faith for his own occupation or use or for he occupation or use of his spouse or any of his children. The only condition imposed under these provisions is that he should require the premises in good faith. Now, the provisions of section 14 of the Ordinance are special provisions and it is settled rule of interpretation that in an enactment contains general provisions and special provisions in respectof the same subject then such special provisions are considered to b exception, and, if a person wishes to take advantage of special provisions, and, if any condition is imposed by the special provisions he must strictly comply with the same.
' If any authority is needed reference may be had to Birendra Mohan Das v. Aminuddin Malik Represented by 3 others (1), wherein it was, held that where action is taken under a special statute it must fulfil the condition of that statute to gain validity. I may state that the principle is equally applicable where a statute contains general as well as special provisions.
22. I may also refer to a passage from "Craies on Statute Law", pages 266, 1971 Edn., which would also be applicable to this case :- "As a general rule, statutes which enable persons to take legal proceedings under certain specified circumstances must be accurately obeyed notwithstanding the fact their provisions may be expressed in merely affirmative language."
23. Another principle of interpretation of statute which is well settled and which is attracted in this case is that when a statute creates new rights and obligations and prescribes the mode of their enjoyment or enforcement, such provisions are construed mandatory and that the Legislature intends compliance of such provisions to be essential to the validity of facts or proceedings.
Reliance is placed on "Maxwell on Interpretation of Statute", page 364, 11th Edn,, and I quote therefrom:--##TE# "Where powers, rights or immunities are granted with a direction that certain regulations, formalities or conditions shall be complied with, it seems neither unjust nor inconvenient to exact a rigorous observance of them as essential to the acquisition of the right or authority conferred, and it is therefore probable that such was the intention of the Legislature."
24. The American view on the aforesaid, rules as expressed by Crawford in his well-known book "Crawford on Statutory Construction" at page 526, is same and it would be of advantage, if I quote the same here :"A statute which creates a new right, privileges or immunity and regulates the manner of its exercise, will be construed mandatory. In other worth, the right can be exercised only in the manner and within the time prescribed. Similarly, when a statute gives a new right and prescribes a particular remedy for its recovery, such remedy must be strictly pursued ; though it is otherwise where a statute gives a right without prescribing a remedy."
25. The above-stated rule has been followed by Fakhruddin G. Ebrahim, J., in the case of Messrs Slem Sons Limited v. Sind Labour Appellate Court, Karachi (2), wherein while examining the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance,
(1) 1970 SCMR 304 (2) PLD 1973 Kar.
1968, he observes that it is special statute dealing with the special subject namely, relationship between master and servant; it provides that the condition of the employment of workmen in the specified industrial and commercial establishments shall be regulated in accordance with the Standing Orders. The Standing Orders, among other things, create new rights and obligations between master and servant and prescribe mode of its enforcement and enjoyment.
' Accordingly, he held that the provisions in paras. (a) and (b) of the Standing Order No, 18 are mandatory and since respondent 2 in that case had not strictly complied with the same.
Respondent 1, had no jurisdiction to entertain the complaint made by respondent 2 in respect of either of two grievances mentioned in the order. This case though relates to a different provision, but by parity of reasoning it would apply with full force to the present case and the question can be answered in the light of the same.
26. Now, under section 14 of the Ordinance, in order to get an order of eviction, a landlord, if he is qualified as mentioned in the section, is required to give notice in writing informing the tenant that he or she needs the building for his or her personal use and requiring him to deliver vacant possession of the building within such time as may be specified in the notice, not being less than two months. It is therefore, clear that in order to get an order of eviction, a landlord must fulfil this condition, otherwise under the general provisions he has to prove good faith. The right of a landlord to apply for eviction of the tenant under section 14(3) of the Ordinance accrues to him, keeping in view the provisions of the proviso and subsection (2) only when tenant fails to deliver possession of the building in his possession on service of notice as required under subsection (1), thus his cause of action matures only when the period of notice expires. It therefore, follows that unless notice in accordance with the provisions of section 14 of the Ordinance is served and the period mentioned there in expires he cannot apply to the Controller for eviction of the tenant. This is the condition precedent and without service of notice under section 14(1) of the Ordinance he cannot apply to the Controller.
27. If a landlord files an application in complete disregard of the provisions of section 14 of the Ordinance it cannot be said that he had merely failed to observe a mere technicality. In such a case, in my opinion, he does not acquire any right whatsoever to file such an application. The Sind Rented Premises Ordinance, 1979, which is a special law and section 14 which is a special provision gives him a special right to apply for eviction of the tenant. In order to enforce such a right the landlord is required to fulfil the condition of serving the notice in writing which should not be of less than two months, for, the right is not absolute. It is circumscribe the condition of serving notice.
When the notice is to be served it must be served in accordance with the provision of section 14 of the Ordinance otherwise it will be any but a notice under section 14 of the Ordinance. In the case of Khawaja Muhammad Razzak v. Omar Farouk (supra) I had an occasion to deal with a similar question and quote therefrom:- "Now, I take up the second ground. In relation to this ground it.Is urged that under section 14 of the Ordinance a landlord having the qualification prescribed by section 14 of the Ordinance is required to give to his tenant a notice of minimum two months to vacate the premises In this case, it is submitted, that notice served by the respondent on each of the appellants was that he should vacate the premises within two months which notice it is contended, is therefore, not according to law, and consequently invalid. The contention has substance for under section 14 of the Ordinance a right has been conferred on certain classes of landlords to apply for summary eviction of tenants on fulfilment of certain conditions. It is, therefore, necessary that those conditions must be strictly complied with, for under this provision, the necessity of proving requirement of the premises in good faith which is the necessary condition of section 15 of the Ordinance, has been done away with."
28. In support of my opinion I referred to a passage from "Craies on Statute Law", 1971 Edition page 266, which I have already quoted hereinbefore. I may here again refer to Mangilal v. Sugan Chand (1). In this case notice under section 106 of the Transfer of Property Act, served by the landlord, which purported to determine the tenancy, was held to be bad for it fell short of the period of 15 days specified in section 106 of the Transfer of Property Act, by one day. I may also state that it is the requirement of section 106, of the Transfer of Property Act that notice terminating monthly tenancy should be of 15 days notice expiring with the ending of the month of tenancy. Whenever a notice fell short of 15 days or did not end with the end of the month such a notice was declared to be invalid and suit based on such notice 'was held not maintainable. See M. Salim v. Shaikh Abdul Latif (2). It would be of advantage, if I also quote a passage from the Transfer of Property Act by D.
F. Mulla, page 589, lInd Edn., which reads: "Date of expiry of Notice.-The notice must terminate the tenancy at the end of the year or month of the period of the lease. It should expire on the last day of that period, otherwise it is invalid Shaikh Sona Ullah v. Troylukho Nat/i (1897) 2 C W N 383 ; Hemangini v. Srigobinda (1902) 29 Cal. 203 ; Mahomedally v. Abdullah (1925) 27 Bom. L. R. 102 ; Kikabhai v. Kalu (1898) 22 Born. 241 ; Seoti Bibi v.
Jagannath (1920) 18 All L. J. 854 ; 57 I C 593 ; Sahtawan v. Mohan Singh (1896) A W N 51 and Deo D.
Spicer v. Lea (1809) 11 East.
312. Thus if the tenancy is a monthly tenancy beginning with the first day of each month, a notice by the tenant on the 9th of June that he would leave in a month's time is invalid, fpr although it gave more than 15 days' notice it did not terminate the tenancy at the end of the month. Bijay Chandra v. Howrah Amta Railway (1923) 38 Cal. L J 177, 72 I C 98 (23) A C 524."
29. I would give yet another example of cases filed against Government or public officers without proper notice under section 80, C. P. C.
' Under section 80, before its amendment by Ordinance (XLI V of 1962), a notice to the defendant containing all the particulars mentioned therein was mandatory and admitted no exceptions. The Court was debarred from entertaining the suit instituted without complying with the requirement of the section. Same was the position if the notice was found to be defective. See The Stare of Madras v. C. P. Agencies and another (3). It was held in a number of cases that a suit instituted before expiry of the
(1) AIR 1965 SC 101 (2) PLD 1963 Dacca 477 (3) AIR 1960 SC 1309 period of two months was invalid.
See Bhagchand Dagdusa Gujrathi and other v. Secretary of State for India (1), Government of Province of Madras through Collector of Ramnad at Madura v. Al. Ar. Rm. Vellayan Chettiar and others (2) Lakhmi Narain v. The. Union of India and another (3), B. L. Chopra v. Punjab State and others (4), Pillarisetti Gotilingam v. The State of Andhra Pradesh (5).
30. This, J. In the case of Muhammad lqbal v. Sheikh Rtaz Ahmad (6) and the case of &all Muhammad and two other cases mentioned before were not followed. The Supreme Court case mentioned hereinbefore was also cited and distinguished and it was observed:- "It therefore, apparent that the Supreme Court has held that a notice under section 14(1) which requires a tenant to deliver vacant possession within two months suffers from infirmity if it is not in accordance with the statutory requirement. The judgment of the Supreme Court has upheld the decision in Wali Muhammad and another v. Mst. Hamida Bai PLD 1981 Kar. 794 on the ground that the failure of the tenant to take objection to the validity of notice had allowed the cause of action to mature and that if the objection had been taken in time the defect could be rectified by the landlord without any loss of time.
' The present case is, therefore, distinguishable from the judgment in PLD 1981 Kar. 794 which was upheld in 1983 SCMR 191 on the point of failure to take objection to validity notice in the trial Court.
The Supreme Court has not expressed itself on the point that enforcement of technicalities are bound to frustrate every object of provision of section 14."
31. Reference may also be made to Muhammad Ashfaq v. Suleman (7) wherein Syed Ally Madad Shah, J., referred to the cases of S. Riazul Hassan. Wali Muhammad and Mir Mustafa All Khan, which were cited before, him and said:- "With utmost respect, I do not subscribe to that view. It is provided under subsection (1) of section 14 that a person entitled to invoke the provisions of section 14 of the Ordinance has to give notice to the tenant in writing informing him that he or she needs the rented premises for personal use and require him to deliver vacant possession of the premises within specified time which shall not be less than two months from the receipt thereof. The cause of action for filing ejectment application accrues to the landlord if the tenant fails to deliver possession of the rented premises within the period specified in the notice as provided in subsection (3) of section 14 of the Ordinance. In my opinion, the requirement of notice has to be fulfilled before the landlord files the ejectment application under section 14 of the Ordinance."
32. I therefore, answer both the questions in the negative.
(1) AIR 1927 P C 176 (2) AIR 1944 Mad. 544
(3) AIR 1962 Pat. 64 (4) AIR 1961 Pb. 150
(5) AIR 1961 Andh. Pra. 488 (6) 1984 CLC 1913
(7) 1985 CLC 2374 ' SALEEM AKHTAR, J.-I had the advantage of reading the judgment of my learned brother Naimuddin, J., an eminent Judge of this Court, and with respect regret to say that I have not been able to persuade myself to agree with it. The facts of the case, and all the judgments on interpretation of section 14 of Sind Rented Premises Ordinance, 1979 relating to the controversy in this appeal have been mentioned with clarity in the judgment of my learned brother Naimuddin, J., and I need not repeat the same. The two questions referred to the Full Bench are as follows :-
(1) Whether notice under section 14 of the Sind Rented Premises Ordinance calling upon the tenant to vacate the premises within 60 days of the receipt of the notice is valid and legal?
(2) Whether ejectment application under section 14, Sind Rented Premises Ordinance filed after service of such notice is maintainable ?
(2) Reply to these questions entirely rests on the interpretation of section 14 of the Sind Rented Premises Ordinance. The main controversy which arises is, whether a notice which -calls upon the tenant to vacate the premises within a period of 60 days from the receipt of the notice, is valid or not. In other words if the notice does not state that the tenant should vacate the premises on expiry of 60 days of the receipt of notice, but calls upon him to vacate the premises within 60 days, or on or before 60 days of the receipt of notice, then can it be termed as a valid notice. On this question there is a cleavage of opinion in our High Court. Eight judgments have favoured liberal construction of notice under section 14, and have held that discrepancy in the notice in describing the period for vacating the premises is technical in nature and not fatal to the validity of the notice. In one case view has been taken that filing of ejectment application by itself serves the purpose of a notice.
Three cases cited by my learned brother have taken a strict view in the matter.
(3) Before interpreting section 14 it is necessary to understand firstly, the nature and object of the legislation, and secondly, the principles of interpretation governing such provisions of law. Provision similar to section 14 Was not incorporated in earlier law viz. Urban Rent Restriction Ordinance, 1959.
The Sind Rented Premises Ordinance, 1979 was promulgated in November, 1979 which contained section 14 providing summary remedy for such class of landlords who fall within the category of widow, minor whose both parents are dead or salaried employee due to retire within the next six months or has retired or a person who is due G to attain the age of sixty years within the next six months or attained the age of sixty years. With certain conditions attached, these landlords were given the right to seek ejectment summarily for personal use. This was a remedy provided to such class of landlords generally, as they were considered to be genuinely in undisputed need, and therefore, ejectment in a summary manner was provided. The object and purpose of section 14 was considered in Bakhsh Elahi v. Kazi Wasif Ali (1) where Zafar Hussain Mirza, J. Observed as follows :- "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
(1) 1985 SCMR 291 are dead, salaried employees due to retire within the next six month or those who have already retired and persons who are due t attain the age of sixty years, within the next six 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 I 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 t put them in possession thereof in the shortest possible time."
' It was further observed as follows :- "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 act 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 time for the application of subsection (2) of section 14 is the date of the institution of the application for ejectment is. Therefore, not sustainable."
' In Nusrat Ali Abbasi v. Masood Ali Qureshi (1) my learned brother K. A. Ghani, J. Summarised the purpose of section 14 in the following words :- "It will be seen that each one of the eventuality mentioned therein gives a distinct and separate cause of action to apply for summary eviction of a tenant. The intention of the legislature in incorporting section 14 is to provide speedy remedy to a widow or a minor whose both parents are dead or salaried employee due to retire or retired or who is due to attain the age of sixty years to get his/her building vacated in the summary manner. The landlords eligible to apply under this provision of law are persons who suffer or are likely to suffer from certain disadvantages or disabilities in life. Lengthy trials and consequent delays resulting in hardships are intended to be avoided by the Legislature."
4. From the history of section 14 as amended from time to time, it seems clear that the intention of the legislature was to give right to the specified class of landlords to obtain summary ejectment of the tenant. Prior to amendment in section 14 the period for availing the remedy was limited and the landlord could file application within 6 months from the date of his qualifying to one of the specified categories, but after the
(1) PLD 1982 Kar. 712 amendment, no such period has been specified in the section. The only embargo placed is that the landlord should fall within the specified category and should not have rented out the building after having qualified to file such application, and that he does not occupy a building owned by him in any locality. Reference can be made to Mumtazuddin Ahmed v. Sultan Jehan Begum (1). From the above discussion, it seems clear that the object o the legislature is to provide a summary and speedy remedy to the landlord who falls within the specified category and is not hit by the embargo placed on him. Having determined the intention of the legislature, it is now necessary to consider the principles of interpretation, governing such pro-I vision of law.
5. While interpreting the provision of section 14 of Sind Rented Premises Ordinance, the language used by the legislature has to be considered first. Section 14 makes it clear that the specified person who is the landlord 'may' by notice in writing inform the tenant that he or she needs the building for personal use and requires him to deliver possession of the building within such time as specified in the notice, not being earlier than two months from receipt thereof". The word "May" is a pointer to the clear intention of the legislature. From grammatical construction of section 14 the notice requiring to vacate on expiry of two months from the receipt thereof cannot be termed as mandatory or a condition precedent for filing the action. In this regard taking into consideration the object of the legislation it is to be determined whether the provision relating to notice is mandatory or directory. In Atta Muhammad Qureshi v. Settlement Commissioner (2) the following rule for determining the nature of a statute was laid down.:- "It is well settled that the neglect of the plain requirements of a statutory enactment, which prescribes how something is to be done, will invalidate the thing being done in some other manner if the enactment is absolute but not if it is merely directory. The real question which thus arises for consideration is when an enactment is to be considered as absolute and when as merely directory ?
' It is not possible to lay down a general rule of universal application in this behalf, but the one which is suggested by reported authorities in this connection is the affirmative or negative character of the language in which the provision is couched. If it is negative, that is to say, if the statute enacts that certain action shall be taken in a certain manner and in no other manner, it has been held that the requirements are absolute and That neglect to attend them will invalidate the whole procedure. If, on the other hand, the language is affirmative, it may be considered as a directory provision. Nonetheless, it appears that in several reported English cases, it has been held that an enactment prescribing the formalities which are to be observed for validating an action, are not absolute, although expressed in negative or prohibitory language. In Mayor of London v. R.
(1898) 13 Q B 30, it was stated that "the words negative and affirmative of a statute mean nothing.
The question is whether they are repugnant or not to that which before existed. That may be more easily shown when the statute is negative than when it is affirmative, but the question is the same.
In Liverpool Barrought Bank v. Turner (1861) 30 L J C H 379 Lord Campbell observed as follows :-
(1) PLD 1981 Kar. 32 (2) PLD 1971 SC 61 "No universal rule can be laid down as to whether a mandatory enactment shall be construed directory only or obligatory with an implied nullification for disobedience. It is the duty of the Courts of justice to try to get at the real intention of the Legislature by carefully attending to the whole scope of the statute to be construed."
' In Howard v. Bollingdon (1877) 2 P D 203 Lord Penzance after citing this dictum of Lord Campbell added as follows':- ' I believe as far as any rule is concerned, you cannot safely go further than that. In each case you must look to the subject-matter, consider the importance of the provision and relation of that provision to the general object to be secured by the Act and upon review of the case in that aspect, decide whether an enactment is, what is called, imperative or only obligatory. '
' One other principle which has been enunciated in this behalf is that as a general rule, statutes, which enable persons to take legal proceedings under certain specified circumstances, demand that those circumstances must be accurately obeyed, notwithstanding the fact that the provisions thereof are expressed in merely affirmative language. At page 226 of Craies on Statutory Laws 6th Edition, this rule is stated thus :- "That when a statute confers jurisdiction upon a tribunal of limited authority and statutory origin, the conditions and qualifications annexed to the grant must be strictly applied."
6. The rule of interpretation as laid down is that, the Court should ascertain the intention of the legislature, the general object to be achieved by the Act, its scope, and then determine whether a provision is directory or mandatory.
7. If the qualifications and circumstances have been specified by the statute, satisfaction of which entitles a person to invoke the jurisdiction or seek the remedy, then such special qualifications and circumstances should be accurately obeyed. The observations in Atta Muhammad's case clearly refer to the conditions and qualifications attached to the grant or exercise of jurisdiction. In this case the Supreme Court was considering sub-clause (5) of section 20 of Displaced Persons (Compensation & Rehabilitation) Act, 1958 which was held to be mandatory placing limitation on the jurisdiction of the revising authority not to make an adverse order against a person without giving him an opportunity to show cause. Any order passed without fulfilment of this prerequisite was held to be without jurisdiction.
8. The following criteria for determining whether a provision in a statute is directory or mandatory has been laid down by Craies in his treatise on Statute Law, Sixth Edition at page 63 :- "When a statute is passed for the purpose of enabling something to be done, and prescribes the formalities which are to attend its performance, those prescribed formalities which are essential to the validity n of the thing when done are called imperative or absolute, but those which are not essential, and may be disregarded without invalidatin the thing to be done, are called directory."
9. A statute may contain many provisions some of which may be imperative, compliance of which is condition precedent for validity of the act performed under it and some may be directory non- compliance of which A/ill not invalidate the action. According to Craise "Where a statute does not consist merely of one enactment, but contains a number of different provisions regulating the manner in which something is to be done it often happens that some of these provisions are to be treated as being directory only, while others are to be considered absolute and essential ; that is to say, some of the provisions may be disregarded without rendering invalid the thing to be done, but others not. For 'there is a known distinction', as Lord Mansfield said in R. v. Loxdale, 'between circumstances which are of the essence of a thing required to be done by an Act of Parliament and clauses merely directory'. In Pearse v. Morrice, Taunton, J. Said that he understood 'the distinction to be, that a clause is directory where the provisions contain mere matter of direction and nothing more, but not so where they are followed by such words as, 'that anything done contrary to these provisions shall be null and void to all intents".
10. In cases where the provisions of a statute can be divided in two parts, the part which confers a jurisdiction or lays down qualifications for invoking the jurisdiction or taking any action can be termed as conditions precedent to the action. So far procedural part is concerned unless it is specifically provided that its non-compliance will invalidate the proceeding or without its compliance no action can be taken, it will be treated as directory. Further, unless the procedural part is one of general policy or in public interest it is directory. In this connection support is found from the following passage in Craies on Statute Law, Sixth Edition page 269 :- "If the object of a statute is not one of general policy, or if the thing which is being done will benefit only a particular person or class of persons, then the conditions prescribed by the statute are not considered as being indispensable. The rule is expressed by the maxim of law Quilibet potest renuntiate juri pro se introducto. As a general rule, the conditions imposed by statutes which authorise legal proceedings are treated as being indispensable to giving the Court jurisdiction. But if it appears that the statutory conditions were inserted by the legislature simply for the security or benefit of the parties to the action themselves, and that no public interests are involved, such conditions will not be considered as indispensable, and either party may waive them without affecting the jurisdiction of the Court."
' Crawford in his treatise the Construction of Statutes at page 518 observed :- 'In other words, most statutes of a comprehensive and detailed nature are likely to contain many requirements which pertain to minor or non-essential particulars. The basic test by which to determine whether the requirement is essential or not, is to consider the consequences of the failure to follow the statute. In this way, the importance of the requirement will be revealed. If the requirement is revealed to be important, it may logically be assumed that the legislature intended that it be met ; . . . .
' After all, if every minor and unessential detail of a statute were considered imperative, almost every act performed in accord therewith would be invalid or ineffective, whether the act was performed by individuals or by public officers. The confusion and impotency which would take place' would in all probability break down our legal system. In order for law to be administered efficiently, effectively and expeditiously, the distinction between essential and non-essential requirements must be maintained, either by the courts or by express legislative enactment."
11. In the light of these principles a close scrutiny of section 14 (1) makes it plain that it can conveniently be divided in two parts, one relates to the jurisdiction and qualification for invoking it, and the other is procedural or machinery provision. So far the jurisdictional provisions are concerned they have to be strictly followed and are mandatory in nature. The right to invoke section 14 has been conferred on specified class of landlord who is a widow, or a minor whose both parents are dead or a salaried employee who is due to retire within next six months or has retired, or a person who is due to attain the age of 60 years within next six months or has attained the age of 60 years. In the words of the Supreme Court in Arta Muhammad's case these qualifications "enable persons to take legal proceeding under certain specified circumstances". There can be no laxity in satisfying the qualifications and complying with the conditions prescribed for the landlord to whom relief under section 14 can be granted. These provisions are mandatory and have to be construed strictly. The second part of the section requiring the landlord to serve a notice of sixty days is a machinery provision laying certain procedure for regulating the ejectment proceeding by such landlord. It cannot be termed as mandatory or a condition precedent for filing the ejectment case. The provision requiring service of notice and period for vacating the premises by the tenant as held by the Supreme Court in Wali Muha "mad's case is for the benefit of the tenant. It is not a provision relating to public benefit or public policy. It therefore, follows that such a provision cannot be termed as mandatory.
12. The respondent has heavily relied on Saleemsons Ltd. v. II Sind Labour Court (I), which is distinguishable. The subject-matter, scope, object and nature of W. P. Industrial and Commeicial Employment (Standing Orders) Ordinance, 1968 is completely different from Sind Rented Premises Ordinance. The former in mandatory terms fixes 'a period of limitation for serving notice and initiating proceedings. Unlike section 14 of Sind Rented Premises Ordinance, it creates public duties and involves public policy. The object of serving a notice under section 14 is to inform the tenant that the landlord having qualified, intends to invoke this provision and the premises is required for his personal use. The fact that section 14 or any other provision in the Ordinance do not la down that no ejectment application can be filed unless the notice allows sixty days time to vacate the premises or suffers from any technical defect or is not served within a specified period from the date of attaining the entitlement, points to the intention of the legislature that the provision for providing two months time in the notice cannot be treated as a mandatory provision, non- compliance of which will render ejectment application liable to be dismissed. I am of the view that the notice may be served before filing the ejectment case, but if there is any technical deficiency or defect in the notice, as in the present case, then neither it can be termed illegal nor the ejectment proceedings is vitiated.
(1) PLD 1973 Kar. 1
13. The provision of section 14 is remedial in nature as held in PLD 1984 Kar.
712. A remedial provision does not in all cases restrict the statute. It extends the provision for a person in whose favour remedy' is granted, but restricts the rights of the persons against whom such remedy is provided. Such provisions have been liberally interpreted. According to Maxwell "the fact that a section is clearly designed to afford relief may incline the Court to construe it more benevolently than it might a less obviously remedial enactment".
' Crawford in his treatise The Construction of Statutes has defined remedial statute and given reasons for its liberal interpretation as follows :- "For our discussion here, however, it will be sufficient to define a remedial statute as one which remedies a defect in the common law or in the pre-existing body of statute law, Such statutes play an important part in the jurisprudence of an advancing society. They supply the defects and abridge the superfluities in pre-existing law, which arise from the general imperfection of all human laws, from change of time and circumstances, from the mistakes and unadvised determinations of judges, and from any other cause. They serve to keep our system of jurisprudence up-to-date and in harmony with new ideas or conceptions of what constitute justice and proper human conduct.
Their legitimate purpose is to advance human rights and relationships. Unless they do this, they are not entitled to be known as remedial legislation nor to be liberally construed. Manifestly, a construction which promotes improvement in the administration of justice and the eradication of defects in our system of jurisprudence, should be favoured over one which perpetuates wrong. It seems proper to assume that the law-makers intended to advance our laws forward as far as our conceptions of justice and proper conduct extend. For this reason, if no other, remedial legislation is entitled to a liberal construction."
Section 14 aims at providing speedy and summary remedy to a categeory of landlords who are handicapped due to certain happenings or passage of time. This provision secures an effective, simple, speedier and inexpensive remedy to landlords specified therein. Therefore, the provision relating to procedure and remedy being remedial in nature can safely be liberally construed.
14. The respondent has heavily relied on the strict interpretation placed on construction of notice under section 106 of the Transfer of Property Act. A boast of rulings have been referred in the judgment of my learned brother Naimuddin, J., in which it has been held that where notice under section 106 does not terminate the tenancy with the expiry of the tenancy month, it is defective and the action should be dismissed. In this regard I would first refer to the principles enunciated for interpretation of notices particularly notice under section 106 of the Transfer of Property Act which reads as follows :- "106. Duration of certain leases in absence of written contract or local usage : In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessee, by six months notice expiring with the end of a year of the tenancy, and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days notice expiring with the end of a month of the tenancy.
' Every notice under this section must be in writing signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property."
15. Maxwell on the Interpretation of Statute XIIth Edition at page 98 observed "provision regarding the giving of notice often receive a liberal! Interpretation". Among the important modern decisions on notice Maxwell has referred to Sunrose Ltd. v. Gould (1). In this case notice was given to the tenant in the prescribed form specifying the date when the tenancy was to come to end, but the landlord forgot to type the year and instead of typing 1961 he left it as 196-'. But from the note printed on the back of the notice it could be understood that he meant 1961. The objection that the notice was invalid as no specific date was given in it was repelled and notice was held to be valid.
While delivering the judgment the Court of Appeal held that "liberal construction of notices has been extended to notices under Landlord & Tenant Act, 1954 as coming within the ordinary principles applicable to Common Law notices to Quit". In making this observation reliance was placed on Barclays Bank Ltd. v. Ascot (2) where it was observed :- "As I understand Hodson L. J.'s judgment Bolton's (Rouse Furnishing) Ltd. v. Oppenheim (1959) 3 AER 90 C. A. Which the Court really has to consider is "whether the statement or (sic) notice given by the landlord has given the proper information to the tenant to deal in a proper way with the situation, whatever it may be, referred to in the statement of notice. It is clear from the authorities which have been cited to me that the construction of this notice should be a liberal one, and provided that the notice gives the real substance of the information required, then the' mere omission of certain details or the failure to embody in the notice the full provision of the section of the Act referred to will not in fact invalidate the notice."
16. The principles governing interpretation of notice required under section 106 has been subject- matter of interpretation in several judgments of Courts in Pakistan. First, reference is made to Juma Balu v. Saleh Muhammad Jamate (3). This is an exhaustive judgment on the point, where several authorities were considered, and notice under section 106 of the Transfer of Property Act which called upon the tenant to vacate the premises on or before 31st May, 1951 and not on the expiry of 31st May was held to be valid as it sufficiently complied with the provision of law. An instructive discussion is found in it which can beneficially be reported here :- "The principles laid down by the English Authorities are equally applicable to cases arising in India.
They establish that notice to quit, though not strictly accurate or consistent in the statements embodied in them may still be good and effective in law ; that the
(1) (1962) 1 W L R 20 (2) (1961) 1 A E R 782
(3) PLD 1953 Sind 31 test of their sufficiency is not what they would mean to a stranger ignorant of all the facts and circumstances touching the holding to which they purport to relate, but what they would mean to tenants presumably conversant with all those facts and circumstances ; and, further, that they are to be construed not with a desire to find faults in them which would render them defective, but in accordance with the maxim "Utres magis valeat quam pareat".
' The same principle was followed, following the case of the Privy Council in AIR 1931 Mad.
352. In that case the notice to quit was to expire on the forenoon of the next day, but their Lordships of the Madras High Court held that the notice though not worded with strict accuracy, but it was sufficient compliance of section 106 of the Transfer of Property Act.
' The same view was taken in AIR 1933 Cal.
260. In that case the notice described the tenant as trespasser and no time was given to quit as prescribed by law, but it was held to be a good notice under section 106 of the Transfer of Property Act.
' Their Lordships of the Bombay High Court also followed the Privy Council case in giving a liberal interpretation to the notice under section 106, Transfer of Property Act in AIR 1943 Born.
306.
' The important case directly on the point is that of Ismail Dada v. Bai Zulekha Bai of the Bombay High Court reported in (1). The notice in that case read as under :- "We are instructed by our client to call upon you to quit, vacate and deliver to our client peaceful possession of the portion of the said premises in your occupation on or before 31st January, 1943 following which our client will adopt ejectment proceeding ' Their Lordships of the Bombay High Court held that the notice was a proper notice within the meaning of section 106 of the Transfer of Property Act.
In Dagger v. Shepherd, (2) their Lordships construed a notice to quit on or before March 25 next, to be a valid notice. Their Lordships held that the insertion of the word "on or before" in the notice to quit was, on a proper construction, an offer to the tenant to accept from him a determination of the tenancy on or any earlier date than that named on which he would give up possession of the premises. This is well-considered case and it reviews the earlier authorities on the question of notice to quit.
' The words "on. Or before" moreover in relation to the present notice which was to expire on 31st May, 1951 would mean immediately at the expiry of the mid-night of 31st May. The meaning given in the Law of Lexicon by P. Ramanath Ayer is as under : "On or before : ' With relation to a specified time or even immediately at or at any time in advance of the incident by such time or event ; that is, to the exclusion of any time after that to which the proposition has relation, not after.
' I am clearly of the opinion that the notice dated 20th April, 1951 was a valid notice as required by section 106, Transfer of Property Act."
17. In Moosa Bhai Velji v. Haji Saieh Muhammad Jamal (1), notice to
(1) PLD 1956 Kar. 423 vacate premises on or before the end of tenancy month was held proper. It was observed that the words "on or before" 31st May, means immediately at the expiry of mid-night on 31st May. In Moulvi Faiz Bakhsh v. Syed Shadi Shah (1), the lease expired on the last day of the month and one month notice was given on 31st August which was received by the tenant on 8-8-1954, and the suit was instituted on 13-11-1954. It was held that Although the notice did not terminate tenancy with the expiry of the notice, it did not contravene the provision of section 106 and was valid, as the suit was instituted more than three months after service of notice which ruled out possibility of causing prejudice on the score of the notice not having expired on the last day of the month of tenancy.
18. In Messrs Memon Trading Company v. Haji Ghaffar Haji Habib Janoo (2), it was held that notice under section 106 of the Transfer of Property Act calling upon the defendant to quit the premises by 31st December, 1960 was valid. The objection that the words "by 31st December, 1960" means that during that day it should be vacated which coincide with the expiry of the month, was not accepted. While holding the notice valid reliance was placed on a judgment of our Supreme Court in the case of Mst. Kamal Jan Begurn v. Kabiruddin Ahmed (Civil Appeal No, 57-D of 1963) where a notice requiring the tenant to vacate the premises within the last day of tenancy was held to be valid. The observation of the Supreme Court relied upon in this judgment is as follows :- "This disposes of the arguments advanced on behalf of the appellant. It remains only to notice the argument that Exh. 'A' even if it was the correct original sent to the respondent, was a valid and sufficient notice to quit. Exh. 'A', as produced by the respondent, shows that the latter was asked to quit and vacate the said premises "within the 31st day of January". Section 106 of the Transfer of the Property Act requires that in the case of a lease from month to month the lease is terminable by 15 days notice "expiring with the end of the month of the tenancy". This language is not, strictly speaking, in compliance with the provisions of this section, for, within the month may even mean before the expiry of the month. The rule of construction of a notice to quit is to put upon it a liberal construction in order that it should not he defeated by slight in accuracies in the date of expiry of the notice. But at the same time the notice must be reasonable and certain so that the recipient of it is not misled as to the intention of the notice-giver."
19. In Nehar All Biswa s v. Nazam Nager Rashida Banu (3), it was held that the notice to quit should be liberally construed. In this regard the following observation may be of valuable assistance in the matter :- "In the case of Harihar Banerji v. Ramshashi Roy their Lordships of the Privy Council held that the principles laid down by the English authorities are equally applicable to cases arising in India. They establish that notice to quit, though not strictly accurate or consistent in the statement embodied in them, may still be good and effective in law, that the test of their sufficiency is not what they would mean to tenants presumably conversant with all those
(1) PLD 1956 Lah. 261 (2) PLD 1966 Dacca 612
(3) PLD 1968 Dacca 525 facts and circumstances, and further, that they are to be construed not with a desire to find faults in them which would render them confective, but in accordance with the maxim "Ut res marls valeat gum pareat".
' The rule of construction of a notice is to put upon it a liberal .Construction in order that it should not be defeated by slight inaccuracies in the date of the expiry of the notice. But at the same time the notice must be reasonably certain so that the recipient of it is not misled as to the intention of the notice giver. This principle was laid down in the case of Messrs Memon Trading Co. v. Messrs Haji Gaffar Hajee Habib Janne........."
' Similar view was expressed in 1971 D L C 658. It therefore, seems clear that the view of Pakistan Courts including the Supreme Court of Pakistan is that notice under section 106 should be construed liberally and if the intention of the landlord is clear from the notice then merely p because of a technical defect in the notice, neither the notice is illegal nor all proceedings based on such notice can be declared to be invalid.
20. A comparison of section 106 of Transfer of Property Act and section 14, Sind Rented Premises Ordinance makes it clear that the principle of interpretation applied to notice under section 106 can safely be applied to section 14 also. Notice under section 106 of the Transfer of Property Act terminates the tenancy of a tenant (See 1970 SCMR 386) and thus provides cause of action to the landlord whereas section 14 does not give a cause of action. Under section 14 cause arises, the moment, the landlord qualifies. To the special conditions laid down in it (See 1985 SCMR W 291).
Therefore, there is a basic difference in the nature and effect of the notice under section 14 of the Sind Rented Premises Ordinance and section 106 of the Transfer of Property Act. Notice under section 14 is to be treated at a much lower level than notice under section 106 because, firstly, service of notice under section 14 does not give a cause of action for filing ejectment case, and secondly, the statute itself makes it directory by using the word 'may' and further that such interpretation is, in consonance with the object and intention of the legislature.
' No doubt notice under section 106 has been in many cases followed rule of strict interpretation and such cases have been cited by my learned brother in his judgment culminating in AIR 1965 SC 101. In view of the consistent view taken by several High Courts of our country and the view expressed by our Supreme Court as quoted in PLD 1966 Dacca 612 and reproduced above, 1 am not inclined to follow the opinion of the Supreme Court of India and other Indian High Courts.
22. During the course of argument reference was made to other statutes which provide for service of notice before instituting a suit and such provisions have been strictly construed. The most illustrative example can be of section 80 of Code of Civil Procedure before amendment by Ordinance 44 of 1962. But it should be noted that old section 80 clearly provided that 'no suit shall be instituted against the Government until the expiration of two months next after notice in writing has been delivered . ." It further provided that the plaint shall contain a statement that such notice has been so delivered. The language employed clearly indicates that the law had imposed service of notice as a condition precedent for filing a suit. In case where such provisions prohibit institution of suit without serving a notice, surely, its strict compliance should be ensured. Article 131 of the Karachi Development Authority Order (Order No, 5 of 1957) requires notice to be served on it before any action is filed against it, or its Officers. Article 131 opens with words "no suit shall be instituted against the Authority until the expiration of one month from the delivery of a written notice It also provides that in every such suit the complaint shall contain a statement that such a notice has been so delivered. Under the Cantonment Act, 1924, section 273 requires that no suit shall be instituted against any Board until the expiry of two months after notice in writing has been. Left at the office of the Board. These instances are sufficient to show that wherever the intention of the legislature is to make service or form of notice in which it is to be served as a condition precedent for filing a suit, it is clearly so stated and penalty for non-compliance is also provided. Section 14 is not so worded. It simply requires that the landlord may by notice inform the tenant that he requires the premises for his personal use, and a minimum period of two months has to be allowed for vacating the premises. It does not provide that no ejectment X application shall be filed before the expiry of two months from the date of service of notice. This clearly indicates that if the notice does not strictly require the tenant to vacate on expiry of sixty days from service of notice, it cannot be termed illegal, vitiating the entire action.
22. The learned counsel for the appellant has referred to Muhammad Iqbal v. Ch. Riaz Ahmed (1), where while construing notice under section 14 strictly, reliance was placed on the judgment of Supreme Court in Wali Muhammad's case (2), where it was held that notice under section 14 (1) which requires a tenant to deliver vacant possession within two months suffers from infirmity. In Wali Muhammad's case the notice was served on 30-1-1980 and the ejectment application under section 14 was filed on 2nd March, 1980. No objection was raised by the tenant before the Controller challenging the validity of the notice. For the first time objection was raised in First Appeal. The High Court in its judgment PLD 1981 Kar. 794 rejected this objection on the ground that it was not taken at the earliest opportunity and at the appellate stage when sufficient time had passed by then, it could not be taken. This view was confirmed by the Supreme Court in the aforestated judgment, where it was observed :- "Leave to appeal was granted to consider the validity of the notices served on the appellants as these did not fulfil the requirement of the prescribed period under section 14 (1) of the said Ordinance.
' The High Court held that as the appellants had failed to take the technical object on at any stage of the proceedings and because of the inaction, they allowed the cause of action to mature on the date on which the Rent Controller passed the order of eviction was beyond two months, no exception could be taken to the validity of the notice particularly when no prejudice was caused to the appellants. It is true that the period prescribed is two months and the notices suffered from this infirmity, but if this objection had been taken before the Rent Controller, the defect would have been rectified by the respondent and the delay of a year would not have ensued. The prescribed period is for the benefit of the tenant and is intended to allow him sufficient time to vacate the premises and further he cannot be ejected summarily under section 14 of the said Ordinance without the efflux of time. This is the statutory
(1) 1984 CLC 1913 (2) 1983 SCMR 191 requirement, but in the circumstances of the case, as the appellant had failed to raise this objection at the earlier stage and allowed a year to pass, the High Court was correct in holding that there was no substance in this legal objection which was eminently against the spirit of the provision which allowed summary relief to the widow. In holding so, the High Court relied on the judgment of this Court reported as National Steel Ltd. v. Mrs. F. Afsar wherein also under similar circumstances it was held that there was no propriety in the legal objection."
23. This observation of the Supreme Court clearly specifies the object and intention of the legislature in enacting section 14, and further that any discrepancy or defect in giving time in the notice makes the notice infirm and if objection is not raised this infirmity or irregularity is curable during the proceedings by efflux of time. Such infirmity hers not been termed as an illegality that vitiates the entire proceedings, nor it has been held that if the notice does not provide full clear two months for vacating the y premises, the proceedings initiated on the basis of such notice are void ab initio, and are to be set aside, nor it has been held that notice providing two clear months for vacating the premises is a pre-condition for instituting a case for ejectment under section 14. If this would have been the interpretation of section 14 surely the proceedings could have been declared void and illegal even at the appellate stage. With respect, I am unable to subscribe to the view expressed in:Muhammad !Oars case where the observation of the Supreme Court in Wali Muhammad's case has been treated to hold that the discrepancy or infirmity in the notice was fatal to the proceedings instituted on that basis. As held by the Supreme Court in Wali Muhammad's case the notice is for the benefit of the tenant, intended to provide him sufficient time namely two months to vacate the premises. Therefore, if the action is instituted before the expiry of two months, ejectment cannot be granted unless that period has expired. This would be a fair construction and interpretation of section 14 which not only provides two months time for vacating the premises, but side by side ensures that summary proceedings may be taken for the benefit of landlord specified in it, and such object of the legislature should not be allowed to be frustrated by pleading technicalities. The learned counsel for the appellant has placed reliance on Khawaja Muhammad Razzak v. Omar Farouk (I), Muhammad Ashfaq v. Suleman (2) but for reasons expressed above, with respect, I am unable to subscribe to that view. Even if for argument sake cause of action for filing ejectment application under section 14 accrues to the landlord on service of notice, then if the ejectment application has been filed before the expiry of two months from the service of notice, the same matures during the pendency of the case, provided the ejectment application is not granted within the said period of two months and therefore, proceedings will not be vitiated. Reference canbemadeto PLD 1964 SC 106,PLD 1978 SC 220, 1980 SCMR 339 and PLD 1975 Lah.
1521. In such cases no ejectment shall be granted un'ess a minimum period of two months has expired from the date of service of notice. In this regard, I would refer to- Azizur Rehman v. Abdul Rahim (3) where section 13(b) of the West Pakistan Urban Rent
(1) 1982 CLC.318 (2) 1985 CLC 2374 (3) PLD 1984 Quetta 46 Restriction Ordinance, 1959 as amended by Baluchistan Urban Rent Restriction Ordinance, 1980 (Ord. III of 1980) came up for consideration. Section .3(b) (1) (b) provides that in a case, where the landlord is a salaried employee and is retired, or due to retire within a period of six months a notice in writing is to be given by such landlord, or widow or minor of the deceased landlord to the tenant of a building informing that he or she needs the building for personal use and require him to deliver vacant possession of the building within a period of two months. Interpreting this provision, it was observed as follows :- "The law has allowed two months time after service of notice under section (!) of section 13-B to the tenant before he can be summarily ejected from the premises. The period of two months allowed to the tenant for handing over possession to the landlord is not an essential prerequisite of the proceedings initiated by the landlord before the Controller under this provision. However, the Controller cannot direct summary ejectment of the tenant before the expiry of two months from the date of notice where the landlord files an application for ejectment on the ground provided under section 13-B of the Ordinance before the expiry of period of two months. In fact the provision of law as contained in subsection (5) of section 13-B of the Ordinance is a facility granted to the tenant to vacate the premises in two months time. A tenant would be liable to vacate the premises when demanded so by the landlord forthwith but this for provision. His summary ejectment too cannot be directed unless this period has expired."
24. The view that the provision of section 14 requiring service of notice should be liberally interpreted finds support from numerous casesl4 including 1973 SC MR 185, 1985 SCMR 24, PLD 1981 Kar. 581 and PLD 1984 Kar. 498 where provision for notice under section 13-A of Urban Rent Restriction Ordinance has been so interpreted. Although section 13-A requires that "the new owner shall send an intimation" of transfer in writing by registered post to the tenant, knowledge of transfer obtained by the tenant by some other source, and filing of ejectment application stating the factum of transfer has been treated to be sufficient compliance with the provision of law.
From the above discussion it is clear that unless the institution of a proceeding without a notice within a particular period or form is prohibited the provision of a statute requiring notice to be served in a particular form which affects and has impact on the proceeding has been held to be directory and not mandatory. The provisions relating to notice have been a liberally construed. If the notice gives substantially the information required by law in clear and understandable manner, then omission to give certain details or failure to mention a particular date in a particular manner or any other similar technical defect will not invalidate the notice.
' For these reasons my answer to the questions is as follows :Question No, 1.-In the affirmative.
Question No, 2,/i..-In the affirmative. The order of ejectment, however should not he passed before the expiry of sixty days c from the date of service of notice. ABDULI QADEER CHOUDHARY, J.-I agree.