' These are two connected First Rent Appeals pertaining to the same tenant-hold premises, one such appeal directed against an order of eviction under Section 14 of the Sindh Rented Premises Ordinance and other involving eviction under Section 15 of the same Ordinance. Pertinent ejectment application under Section 14 of the Ordinance was filed by Akeel and his mother Mst.
Sher Bano maintaining that they together with Miss Batool and Miss Kubra, sisters and daughters respectively of either of them, were the co-owners of Tejani Building, Newnham Road, Kharadar, Karachi, whereas the respondent Abdul Razzak was tenant in respect of the flat on the second floor of such building at a monthly rent of Rs,60. Miss Batool was stated to be suffering with hysteria and depression while Mst. Sher Bano was claimed to be infirm, weak of sight and unable to properly write or manage things normally. Akeel was said to be serving as an Assistant Executive Engineer, Works Division, KPT and putting up in a KPT Officers' Flat with the referred three co-owners of Tejani Building. Being the only male member in the family he was looking after the said females in that situation. He had received a notice of retirement dated 24-7-1985 whereunder he was scheduled to retire from KPT service on 16-12-1985 and with that retirement he had to vacate the KPT premises in question. Accordingly, registered A.D. Notice dated 5-8-1985 under Section 14 of the Ordinance, was despatched by Akeel to tenant Abdul Razzak which was returned having been refused. Another notice under the same provision was also addressed and it was served on the tenant on 3-10-1985, eliciting no reply. Such second notice was on the ground that Mst. Sher Bano had attained the age of 60 years and she as well was entitled to have the tenant-hold vacated not having let out the same after she attained the age of 60 years. None of the applicants owned any other building.
Ejectment was, accordingly, sought by the two applicants on such pleas. In the written statement it .Was denied that Section 14 was attracted to the case. Requirement of the landlords was also denied. It was further pleaded that Mst. Sher Bano alone was the landlady who in that capacity had already filed an ejectment application of her own, inter alia, on similar grounds of personal requirement, pendency of which application barred the proceedings under Section 15 of the Ordinance. The learned Controller came to the conclusion that a case for eviction under Section 14 of the Ordinance was established and granted relief to the applicants-respondents. Relevant order was recorded on 22-2-1988.
2. Correspondingly, the earlier application under Section 15 of the Ordinance instituted by Mst. Sher Bano alone, First Rent Appeal in relation to which is also disposed of through this order, had proceeded on the grounds of default and personal requirement of Mst. Sher Bano alongwith her two unmarried daughters and son urging that none of them had any accommodation of their own to live and, therefore, the tenant-hold was, in good faith, required by the landlady for herself and her referred children. The tenant in defence therein pleaded that there was no default and, besides, no case of personal requirement bona fide or otherwise was made out. The learned Controller who had occasion to hear such application subsequent to that under Section 14 of the Ordinance also allowed the same by her order dated 22-5-1989 but on the ground of personal requirement alone.
3. Appellant-tenant has appeared before me through Mr. Afsar Abidi while the respondents have perused this matter in person, respondent Akeel representing such interest.
4. Mr. Afsar Abidi has raised a number of contentions in support of these appeals. It has been urged that the landlady/landlord had instituted ejectment proceedings, inter alia, on the grounds of personal requirement against all the tenants of the building, except one on the ground floor, without detailing as to why such requirement, if any, could not be satisfied by obtaining one tenement alone and on such failure the principle evolved in Mst. Ashraf Ali v. Dr. Asif Majeed (1991 CLC 53) would be attracted. It is then said that the notice under Section 14 of the Ordinance was bad because proceedings under that provision had been resorted to even before the expiry of the period of two months envisaged therein, thereby attracting the Supreme Court dicta in Syed Hassan Askari Rizvi v. Muhammad Aziz (PLD 1989 SC 1), which judgment according to this contention has overruled Barkatullah Khan v. Muhammad Hasan (PLD 1986 Kar. 309) and distinguished Wali Muhammad v. Mst. Hamida Bai (1983 SCMR 191). On the factual plane also it is maintained that personal requirement, either under Section 14 or under Section 15 of the Ordinance, was not established.
5. As to the first contention, it is correct that in Re: Mst. Ashraf Alia it was observed that where a landlord seeks to evict more tenants than one and from more tenements than one it was to be expected and can be considered to be an implied requirement of law that in the relevant eviction applications the details of the requirement should be set out to justify more than one eviction and to that extent and in concomitant circumstances the Supreme Court case of Saira Bai v. Anisur Rahman (1980 SCMR 1366), relaxing the rule of strict pleadings in rent cases, was distinguishable.
However, what the learned counsel has overlooked to see in Re: Ashraf Alia is a pointed observation to this effect:- "If, for some reason, may it even by an omission, such vital facts are not disclosed, it could still be.
Open for the landlord to detail such requirement when the evidence in the case unfolds, a course approved by Naimuddin, J., in Re: Saira Bai ibid."
6. It, is, therefore, to be seen whether the landlords have elaborated upon their requirements to warrant eviction of tenants from more premises than one and, if so, to what extent, if at all, have they succeeded in doing so. For this purpose, pursuant to the opinion of Naimuddin, J., in Re: Saira Bai above, the Controller or the Court, not being riddled with unnecessary strictness of pleadings in rent proceedings, would not be confined to evidence in one isolated case alone. It can legitimately avail itself of evidence, cognate material and even orders in connected rent cases, involving the various tenements from which eviction is simultaneously or even successively sought. Such a course alone would be in line with a principled and just approach in germane controversies. On all these relevant considerations appropriate orders can lawfully be founded.
7. In this background, I required Mr. Afsar Abidi to place on these files the pertinent orders in the other connected, simultaneous or even successive proceedings, for, in more than one instance, cases under Section 15 were followed by those under Section 14 of the Ordinance or vice versa. In pursuance, order dated 22-2-1987 in Rent Case No,2231/85 (Akeel and Mst. Sher Bano v. Ahmed Abdul Latif), order dated 28-8-1990 in resultant F.RA. No,97/90 and order dated 10-12-1990 in consequential CPSLA No,494-K of 1990 have been brought on record. Likewise, two orders dated 30- 4-1989 in R.C. No,112/85 and R.C.No,114/85 (Mst.Sher Bano v. Abdul Rahim) have also been placed.
8. Examining the proceedings in the instant appeals together with those in the above-referred connected matters it has emerged that Tejani Building, which is in dispute here, is situated on a small plot of land. It has two commercial n-emises on the ground floor, in occupation of different tenants. Such building I s four floors, each floor comprising of a single flat, which itself has two rooms / way of accommodation. Rent Case No,2231/85 was filed against tenant Ahmed Abdul Latif in relation to one of the ground floor commercial tenements and such proceeded in terms of Section 14 of the Ordinance. Co-owner/landlord Akeel in such behalf alleged that, upon retirement from KPT, he wanted to pursue his own profession of an Engineer and hence the requirement under Section 14 ibid. The requirement having been established the tenant was ordered to be evicted by the Controller on 22-2-1987. An appeal to this Court namely, F.R.A. No,97/90 failed as per orders of my learned brother Allandino Memon, J. Leave petition in the Supreme Court viz. CPSLA No,494-K of 1990 also failed, as per orders dated 10-12-1990 of a Bench comprising Muhammad Afzal Zullah, C.J.
And Shafiur Rahman, J. Rent Cases Nos.112/85 and 114/85 were directed against tenant Abdul Rahim, who cumulatively occupied and tenanted the 1st, 3rd and 4th floor flats of Tejani Building, aforesaid of Rent Case No,112/85, filed by Mst. Sher Bano under Section 15 of the Ordinance, pertaining to the 3rd and 4th floors of the building was dismissed on 30-4-1985 whereas Rent Case No,114/85, also under Section 15 of the Ordinance but pertaining to the 1st floor, though against the same tenant, was allowed by the learned Controller on the ground of personal requirement but such was restricted to the 1st floor alone. I have been informed that the matter is currently in appeal in this Court and, on hearing the parties, orders have been reserved.
9. Now, therefore, the current position is that the landlords have an eviction order in respect of the commercial tenement on the ground floor in their favour besides having similar favourable orders, though lacking the same degree of finality, in respect of the 1st and 2nd floor tenements of a residential nature in relation to different tenants, one who is common to those appeals and the other Abdul Rahim in whose case orders have been reserved before another learned Judge. In so far as the requirement of the ground floor commercial tenement is concerned it is an independent requirement of co-owner/landlord Akeel for a commercial purpose and has to stand or fall independently of any residential requirement. Such requirement is preferable to the profession of an engineer/consultant architect, which the co-owner landlord, on retirement from KPT, wants to pursue. Relevant orders in that context have become final upto the level of the Supreme Court and obtaining possession of the tenant-hold is now only a matter of time and procedure. But, as observed earlier, requirement of a landlord for a commercial tenement has to be independently approached of a corresponding, simultaneous or successive requirement of a residential nature. A One such requirement cannot reflect on the other unless the two are inextricably connected such as when a tenement is of a composite character serving residential as well as commercial purposes, which is not the case here.
' Accordingly I am of the view that final orders of eviction in respect of the ground floor commercial premises do not have any bearing whatever on these appeals, which involve a residential purpose.
10. Next we come to the proceedings in relation to tenant Abdul Rahim in respect of whom the learned Controller has dismissed the case pertaining to the tenant-holds on the 3rd and 4th floors, allowing eviction in respect of the 1st floor alone. Since such a question is still open in appeal which is stated in be pending in this Court, I can but only tentatively, take it that the landlords are armed with orders of eviction in respect of the 1st floor residential tenement and are simultaneously/successively seeking eviction of the appellant-tenant in these proceedings from a similar residential premises on the second floor. Such tentative approach alone, it would seem, should be appropriate because so long as, in spite of the pendency of proceedings, an eviction order subsists and is not set aside, on appeal or otherwise, it should, at least provisionally, be treated as a due, though anything but a final, order. It will, therefore, have to be seen whether, on evidence and other material on the record, the landlords have established a case of personal requirement which is not restricted to one residential tenement alone, but as claimed, extends, at the very least, to two such tenements. It has come in evidence that one of the sisters of respondent Akeel or to put it differently one of the daughters of respondent Mst. Sher Bano namely, Miss Kubra has since died, and, at this stage, the residential requirement has come to be limited to 3 persons alone namely, Mst. Sher Bano, Akeel and Miss Batool. This situation even though it has emerged at the appellate stage in one set of proceedings and at the trial level in another can, if not in doubt, be taken note of and the personal requirement of the landlords can be dealt with correspondingly.
This approach is grounded on the principle that not merely the facts as that prevail at the time an action is brought but also those which relevantly emerge during pendency may, if thought fit, be addressed by the Court provided always that the ends of justice so demand. Such view is now supportable on the authority of the Supreme Court itself.
11. It has emerged in these cases that while each floor of the building comprises of a single flat such itself consisting of two rooms, the rooms themselves appear to be so interconnected as to make it necessary to pass through one of them before going to the other. It is also one of the relevant factors that there are three grown up persons in this family, each one of them, being a co-owner, is a landlord or a landlady of the building in his or her own right. See definition of landlord in Section 2(f) of the Ordinance. Respondent Akeel is an engineer by profession and has occupied a station in life where he can plausibly claim entitlement to an independent accommodation of his own. As to his obligation to look after his mother and sister, which is emphasised by the appellant it is not necessary that, for doing, he should be in the same tenement with them, much less when all the co-owners cannot conveniently be accommodated in a single such tenement. In this background, it is an inescapable conclusion that while Mst. Sher Bano and Miss Batool can be properly house in one of the tenement, co-owner/landlord Akeel may, with equal convenience and propriety, be accommodated in another, both tenements being situated in the same building and in close proximity with each other, being on the first and second floors.
12. It having conclusively been established that the co-owners were residing together in the K.P.T.
Accommodation, that none of them had been in possession of any premises owned by him or her and that respondent Akeel stood effectively retired from K.P.T. Service, pleas of personal requirement should be considered to have been established. On the other hand, while mala fides has not pointedly been identified and good faith is hardly relevant for the purposes of Section 14 of the Ordinance, I would still examine the bona fides of the requirement with reference to the application under Section 15 of the Ordinance, since such element is an essential ingredient of that provision and a prerequisite for an order of eviction falling thereunder. The only challenge on such score may lie on two grounds; firstly, because the landlords being already armed with eviction orders in respect of the first floor flat of tenant Abdul Rahim the claimed requirement for the instant tenant-hold is in bad faith and secondly, since the application had failed on the ground of default that fact should adversely reflect on the bona fides of the landlords. As to the first, looking to the nature of the accommodation in each of the flats in the building and the landlords' status in life, the requirement, on evidence extends to a minimum of two such flats, situated in close vicinity. On the second aspect of failure on the ground of default, it can now be stated as a conclusive proposition of law that when a landlord applied for personal requirement other grounds of eviction, if any, simultaneously taken, unless such cancel each other, may indicate the indubitable character of his need, impelling him not to leave any stone unturned in order to ensure its satisfaction. The ground of default manifestly, in itself does not militate against a case of personal requirement and failure of that plea can hardly result in blowing up the good faith of the requirement.
13. A word now about the effect of simultaneous or successive proceedings both under Sections 14 and 15 of the Sindh Rented Premises Ordinance. I am unable to locate any legal bar, either in the statute or on general principles, for such a course being adopted. These are distinct provisions conferring independent entitlements. The two rights may subsist concurrently or arise successively or may be, one remedy come to be pursued after the other has been resorted to and is either pending or stands disposed of. Ordinarily, that should C make no difference. Likewise, both actions may succeed or only one of the two or both may fail. Thus for instance a case may not fall within the four corners of section 1 at all but a good case may subsist for enforcing personal requirement on general principles under Section 15 of the Ordinance. Alternatively, under Section 15 ibid good faith may not be capable of being established and the application should fail but under Section 14 of the Ordinance such may succeed, good faith not being relevant there.
14. Turning now to the applicability of Section 14 of the Ordinance, reliance of Mr. Afsar Abidi on Sycd Hassan Askari Rizvi v. Muhammad Aziz (PLD 1989 SC 1) does not appear to be helpful. All that this case lays down is that Section 14 of the Ordinance contemplates specific rights of eviction coming to vest in landlords in given circumstances and that evictions under such section can be sought only by those persons who come to qualify for applicable claims under that provision. There can be no two opinions that till such time as a qualification under the Section matures, right to apply does not come to vest. Now, inter alia, one of the categories of persons who can claim eviction under Section 14 of the Ordinance is of those who are to retire within the next six months and another of those who have attained the age of 60 years, both without incurring any forfeiture to apply, and who, on relevant entitlement coming to subsist, address an appropriate notice under Section 14 of a minimum two months' duration for the tenant to vacate in furtherance of such entitlement. In the cited case before the advent of the period of six months, preceding retirement, the notice purportedly under Section 14 was addressed and the Supreme Court held that such notice was premature because, at the time when it came to issue, the landlord did not fall within the four corners of Section 14 of the Ordinance and, therefore, was not entitled to seek eviction. The duration of notice itself, thus, was not in question. On this reasoning it can hardly be argued that while a landlord claims to fall within the purview of Section 14 of the Ordinance and addresses requisite notice thereunder, but happens to approach the Controller prematurely in that the minimum period, of two months entailed in the section has not expired, the proceedings would be bad. In such a case, at the time of issuance of the notice, the landlord may clearly and adequately be entitled and if so, the notice period would automatically mature during pendency of the rent case and the tenant would not in any way be prejudiced on the basis of such institution. The majority view of this Court in Barkatullah Khan v. Muhammadd Hasan (PLD 1986 Kar. 309) far from being overruled in Syed Hassan Askari Rizvi v. Muhammad Aziz (PLD 1989 SC 1) would, therefore, squarely apply. This Full Bench dictum is also, on principle, supportable upon several, comparatively recent Supreme Court pronouncements touching the notice contemplated in Section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, through which such Court upon repeal of that statute, diverted itself from its earlier opinion in RA. Evan's case (PLD 1964 SC 536). This was albeit the fact that the last mentioned case was not dissented, from. Refer, inter alia, Muhammad Ramzan v. Bashir Ahmad (PLD 1981 SC 340), and Jaleesa Begum v. Iqbal Ahmad Qureshi (PLD 1982 SC 396). None of these .Cases were referred to let alone retracted in Re: Syed Hassan Askari Rizvi. What is more, Wali Muhammad v. Mst. Hamida Bai (1983 SCMR 191) wherein the period in a notice under Section 14 of the Sindh Rented Premises Ordinance was liberally addressed was only distinguished. Accordingly, it cannot plausibly be said that the proceedings were hit for want of any of the postulates in Section 14 of the Ordinance.
15. It has already been found that on merits the requirement of the landlords has indubitably been established. Resultantly, I have no option but to dismiss these appeals. However, I would allow four months' time to the appellant/tenant to vacate provided that he continues to deposit the agreed rent as per earlier orders failing which or upon the expiry of the said period if the tenant does not vacate the learned Controller would be free to execute the orders without any further notice to him.