' This appeal calls in question the order dated 14-10-1985 passed by the learned VIII the Senior Civil Judge and Rent Controller, Karachi South, thereby dismissing the application filed by the appellants for eviction of the respondents from the property bearing No, 20-C.L.6, Civil Lines, Karachi (hereinafter called the demised premises"), under section 14 of the Sindh Rented Premises Ordinance, 1979 (for short 'the Ordinance'). As the appellants Nos. 2 and 3 had crossed the age of 60 years.
2. The respondents Nos. 1 and 2 contested the proceedings by filing separate written statements. In support of their case, the appellants Nos.1 and 3 viz. Mumtaz H.Hidayatullah and Begum D.A.
Hidayatullah filed their affidavitsin-evidence; whereas Begum Safia Agha, the respondent No, 2 filed her two separate affidavits-in-evidence, one on behalf of respondent No,1 as Secretary, Trinity Private School Association and the other on her own behalf, as opponent No,2.
3. The learned Rent Controller framed the following issues:--
(1) Whether application under section 14 of Sindh Rented Premises Ordinance, 1979 is not maintainable on account of non-disclosure of requirement of section 14(2) of Sindh Rented Premises Ordinance?
(2) Whether applicants Nos.2 and 3 attained the age of 60 years before the premises was let out ?
(3) Whether the applicants Nos. 2 and 3 are not in occupation of any building owned by them ?
(4) Whether the applicants waived/acquiesced their right u/s.14 of the Sindh Rented Premises Ordinance, 1979, and have not claimed ejectment immediately after the accural of the rights ?
(5) What should the order be ?
4. He answered issue No, 1 in the negative and the issues Nos. 2, 3, & 4 in the affirmative and consequently dismissed the application. Hence this appeal.
5. Assailing the finding on issue No, 2, Mr. Farooq H.Naik Advocate, contended that the learned Rent Controller has erred in holding that by letting out the demised premises afresh to the respondent No,2 on 26th April, 1976 i,e, after their having attained the age of 60 years, the appellants Nos. 2 & 3 stood debarred from availing the benefit of Section 14 of the Ordinance. The counsel urged that while so holding the learned Rent Controller has wrongly interpreted the legal provisions as embodied in Section 14 of the Ordinance. Even if it is, the counsel so urged, presumed for the sake of arguments that the demised premises had been re-let on 26th April, 1976 yet there is no provision of law which disentitled them from availing the benefit which vested in them under Section 14 of the Ordinance as being persons of more than 60 years of age. In short, the contention of the learned counsel for the appellants was that notwithstanding the fact that the premises had been let out (although it is not so conceded) on 26th April, 1976 yet the appellant's right to avail benefit conferred upon them was not in the least affected inasmuch the said legal provision is not applicable in retrospection. In support of his contention Mr.Farooq Naik placed reliance on an unreported order of the Supreme Court dated 18-2-1981, passed in CPSLA No, 34 of 1981. The facts of that case were that the respondent-landlady had filed eviction application under Section 15 of the Ordinance for eviction of the petitioner on the ground that she required the premises for her personal use. While the said application was ripe for hearing, she served upon the petitioner a notice dated 8-9-1980 under Section 14 of the Ordinance calling upon him to vacate the premises as she had attained the age of 60 years on 3-7-1973 and the premises were required by her for personal use. Consequent to the failure on the part of the petitioner to comply with the demand made in the statutory notice, the respondent-landlady filed another eviction application on 2-12- 1980 under section 14 of the Ordinance. Two-fold objections were raised by the petitioner in the written statement. Firstly, the application was not maintainable as the earlier eviction application was still pending against him on identical grounds and, secondly, the application was mala fide.
The ejectment application was allowed, without holding an inquiry, on 21-12-1980 and the appeal carried against that order before the High Court also failed to bear any fruitful result. This led to the filing of the petition for special leave to appeal before the Supreme Court. It was, inter alia, pleaded on behalf of the petitioner that the respondent-landlady had rented out another flat to one another person in the year 1974 and she was, therefore, under the proviso to section 14 not entitled to have recourse to summary eviction procedure. The issue in the case before the Supreme Court was thus almost identical to the issue involved in this appeal. Repelling the contention of the petitioner's counsel their Lordships of the Supreme Court observed:-- "The argument overlooks the ,fact that the respondent landlady had no right to seek summary eviction on the ground that she had attained the age of sixty years when she rented out another flat to one Mansoor, for the Ordinance was enacted in the year 1979 and the proviso, referred to above, was added in the year 1980. To accept the argument of the learned counsel would mean to give retrospective effect to the Ordinance, which is not its intent and it must, therefore, follow that the limitation contained in the said proviso will operate upon facts coming into existence after the landlady had become entitled to seek summary eviction under subsection (1) of Section 14 of the Ordinance. "
6. Mr. Farooq H.Naik, Advocate, learned counsel for the appellants ,also relied on the judgment delivered by me in Mst. Sultana v. Syed Abdul Qayyum 1988 CLC 773. The facts of this case were that the appellant-landlady had filed an application under section 14 of the Ordinance for eviction of the respondent tenant on the ground that she was a widow and needed the demised premises for her use. Her husband had died on 14-3-1973 and the ejectment application was made on 26th November, 1981. It was pleaded by the tenant in the written-statement that the application was mala fide inasmuch as he had not agreed to the enhancement of rent claimed by the appellant- landlady. The application was dismissed by the learned Rent Controller, who was influenced by the fact that the ground floor tenement in the same building had been let out by the appellant- landlady to a bank in 1973, that is, after the death of her husband and by doing so she had lost the privilege conferred upon her as a widow by Section 14 of the Ordinance and hence she was no more eligible to avail the benefit thereunder. The Rent Controller, therefore, held that the application under section 14 was not maintainable. The appeal against Controller's order came up for hearing before me and I, relying upon certain authorities mentioned in the judgment, held that "notwithstanding the appellant's having let out the premises in the year 1974, namely, after the death of her husband she still was legally entitled to invoke the provisions of Section 14 of the Ordinance. " It was further held that "a bare reading of the relevant provision of law clearly shows that a person belonging to the class of persons enumerated in Section 14(1) of the Ordinance becomes disentitled to avail the benefit extended to him under the said section if he rents out the building after the happening of the given events namely; the retirement on attaining the age of 60 years, or becoming a widow or orphan as the case me be. The right to make an application under section 14 was conferred only upon the promulgation of the Ordinance and hence the appellant- landlady had thereafter become entitled to present application under section 14 notwithstanding the fact that she became widow in the year 1973."
7. It was, on the other hand, forcibly argued by Mr. Waheed Farqooui, Adv., the learned counsel for the respondent that the Supreme Court's judgment is based upon consideration of the mala fides and hence it is distinguishable on its own facts. He submitted that acquiescence of the two landladies in the instant case resulted in affecting their rights to claim the benefit under section 14
(1) of the Ordinance. By analogy, he referred to two cases, reported in PLD 1982 Karachi 188 and PLD 1979 Karachi 597, which are on the point of subletting and urged that once the landlord acquiesces in subletting the premises he loses his right to seek eviction under section 15, likewise if a person belonging to the class of persons enumerated in section 14, lets out the premises after the happening of the relevant event then he too loses his right to claim the benefit available to him under Section 14 of the Ordinance.
8. I have given my earnest consideration to the submissions made by the learned counsel for the parties and have, with their assistance, carefully perused the above-mentioned case-law cited before me and I do not feel hesitant to hold that the learned Rent Controller had committed an error in deciding both the issues Nos. 2 and 4 against the appellants Nos.2 and 3, who had admittedly crossed the age of 60 years much earlier that the promulgation of the Ordinance on 21- 11-1979. In the presence of the Hon'ble Supreme Court's decision in the case of Mumtazuddin (supra), which is directly and squarely applicable to the facts of the instant case, I do not consider it necessary to deal with the contentions of the learned counsel of the parties at any length. Suffice it to say, as is manifestly clear from the above-cited decision of the Supreme Court, that the Proviso to section 14(1) ibid whould be attracted only where, subsequent to the coming into force of the Ordinance, 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. In the case in hand it is not in dispute that the appellant No, 2 had attained the age of 60 years somewhere in the year, 1963 and the appellant No,3 on 15th September, 1975. Both these appellants had thus acquired the right and privilege to avail of the benefit conferred upon them by section 14 ibid, immediately upon the promulgation of the Ordinance. They had once ceased to have that right after the expiry of four months from the promulgation of the Ordinance, by virtue of the original proviso embodid thereto.
But upon the substitution of the present proviso in place of the original one, thereby doing away with the originally enacted clog placed on the right of the class of persons enumerated under Section 14(1) of the Ordinance, the right again stood revested in them, unhampered and without any time limit for its exercise. It is a salubrious principle of interpretation of laws that unless a clear intention to limit or affect existing rights is expressed in the statute itself, it is not to be so presumed or inferred. Hence it is by no means possible to hold that the appellants having attained the age of 60 years much earlier that the promulgation of the Ordinance were obliged to exercise the right of making the application under section 14(1) within a reasonable time. Once the legislature has chosen not to prescribe any time limit for making the application u/s. 14(1), it is beyond the competence of the Controller or the Court to hedge in the said right by holding that the application is belated or should have been filed within a reasonable time after the promulgaion of the Ordinance.
9. In so far as the argument regarding waiver and acquiescence is concerned, it deserves to be immediately repelled with the observation that there is no waiver against law. It is by now a well- established proposition by authorities that the question of bona fide requirement is not relevant or pertinent while deciding an application under section 14 of the Ordinance.
10. The next question that falls for consideration is whether the letting out of the premises (if it is so conceded for the sake of arguments) on 26th April, 1976 would come in the way of the appellants.
The two authorities cited and discussed above furnish a complete and full answer to this proposition and hence I do not deem it necessary to deal with this aspect of the case once again.
There was yet another argument advanced by the learned counsel for the respondents to the effect that it was a case of month to month tenancy and, therefore, after the promulgation of the Ordinance, the landladies shall be deemed to have let out the demised premises on every first of the month. I am afraid I cannot subscribe to this view of the learned counsel for the respondent as it would manifestly render the provisions of section 14 (1) otiose.
11. For the foregoing reasons, I have reached the conclusion, as already observed, that the learned Rent Controller's findings on both the aforesaid issues Nos. 2 and 4 are based on fallacious reasonings and hence cannot be sustained. I would, therefore, allow this appeal and reverse the findings of the learned Rent Controller on these two issues. In the result, the application filed under section 14 on behalf of the appellants Nos.2 and 3 succeeds.
12. I would, therefore, order the eviction of the respondents from the demised premises and direct them to hand over peaceful possession thereof to the appellants. The learned counsel for the respondent at this stage submitted that since an educational institution is functioning in the said premises it would be in the interest of justice if a longer period, say of (two) years, is allowed to vacate the demised premises. Mr. Farooq H.Naik, however, vehemently opposed this request.
However, in appreciation of the fact that demised premises is occupied by an educational institution, I consider it proper to allow one year's time to the respondents to vacate the premises, subject to their depositing/paying monthly rent regularly to the appellants against receipts. In case the respondents fail to vacate the demised premises upon expiry of the given period, or commit default in compliance of the above order regarding payment of rent, they shall be liable to be evicted forthwith without notice. The parties are, however, left bear their own costs.