1. SAJJAD ALI SHAH, J.---For this appeal leave was granted vide order, dated 2-2-1989, to examine questions of law, which are, whether for eviction under section 14 of Sindh Rented Premises Ordinance, 1979, service of notice on tenant is mandatory or not and filing of the case previously under section 15 of the Ordinance, would constitute sufficient notice under section 14(1).
2. Briefly stated, the relevant facts are that appellant and respondent are tenant and landlady respectively of residential accommodation described in application for eviction filed under section 14 of the Sindh Rented Premises Ordinance, 1979 (to be referred hereafter as said Ordinance), which was registered as Rent Case No.2372/84, in the Court of XVII-Senior Civil Judge/Rent Controller, Karachi. Rent is Rs.75 per month and eviction was sought on the grounds of default since July, 1979, till filing of application in January, 1984, subletting and requirement of premises for personal use of landlady as she had become widow and there was no other house in her name in Karachi. Tenant resisted eviction and in the written statement raised a host of preliminary objections including incompetence of proceedings on the ground that notice under section 14 of the said Ordinance was not served and further that grounds of default and subletting could not be taken in application under section 14 but could be taken under section 15 of the said Ordinance. It was also averred by the tenant that proceedings on the grounds of default and personal use are barred by res judicata as these grounds were taken in previous Rent Case No.6876 of 1980, filed in the Court of XII-Senior Civil Judge and Rent Controller, Karachi, which case was dismissed vide, order dated 2-10-1982, against which F.R.A. No.1059 of 1982 was fled in the High Court, which was withdrawn by landlady on 9-10-1983. Stand was taken that landlady was in possession of another house owned by her in Nazimabad, consisting of six rooms. Keeping in view pleadings of the parties, four issues were framed. Landlady examined herself and on behalf of tenant his attorney namely, Mst. Hawa Bai was examined. All the issues were found against landlady and in consequence ejectment application was dismissed vide order, dated 22-4-1987.
3. Against the order of Rent Controller, landlady took appeal to High Court bearing F.R.A. No.731 of 1987, which was allowed by a learned Single Judge, vide judgment, dated 29-9-1988, on the issue of personal need, as grounds of default arid subletting were not pressed during the hearing of appeal.
4. Learned Single Judge in the High Court arrived at conclusion that application under section 14 of the said Ordinance, was maintainable for the reason that even if notice was not served, tenant was not taken unaware and previous rent case between the parties, in which landlady was unsuccessful, constituted sufficient notice in the instant case. In support, reliance has been placed on the case of Mir Mustafa Ali Khan v. Mst. Safia Maqsood decided by a learned Single Judge of the High Court of Sindh and reported in 1983 CLC 349. In the impugned judgment, finding is also given that tenant had failed to prove that landlady occupied another building owned by her.
5. During the hearing of the appeal in the High Court, counsel for the tenant relied upon the case of Muhammad Ashfaq v. Suleman decided by learned Single Judge in the High Court and reported in 1985 CLC 2373, but observation was made by the appellate Court that the case being distinguishable reliance was misplaced. In the case of Muhammad Ashfaq, mentioned above, it is held that, if landlord applies for ejectment on the ground of personal need, as contemplated under section 14 of the said Ordinance, then notice under subsection (1) thereof is necessarily to be given before filing of ejectment application. This argument was not accepted in the impugned judgment for the reason that it was considered that for eviction under section 14 of the Ordinance, application would be maintainable even for want of notice and landlord could not be non-suited on technical ground as he can bring another application after service of notice for which there can be no defence. In support of the proposition, reliance was placed on the case of Mir Mustafa Ali Khan v. Mst. Safia Maqsood decided by a learned Single Judge of Sindh High Court (1983 CLC 3.19).
6. In the High Court of Sindh in the case of Barkatullah Khan v. Mirza Muhammad Hassan, reported in PLD 1986 Kar. 309, was pointed out conflict of opinions with regard to interpretation of the provisions of section 14 of the Sindh Rented Premises Ordinance, 1979, which necessitated reference to a Full Bench of three Judges. Questions framed for reference were as under:--
(1) Whether notice under section 14 of the said Ordinance calling upon the tenant to vacate premises within 60 days of the receipt of notice is valid and legal?
(2) Whether ejectment application under section 14 of the said Ordinance filed after service of such notice is maintainable?
7. Both questions have been answered in the affirmative in the majority opinion of two learned Judges, namely, Mr. Justice Saleem Akhtar, who is the author of judgment and with whom agreed Mr. Justice Abdul Qadeer Chaudhry (as he then was). Minority opinion is written by Mr. Justice Naimuddin (as he then was) in which both questions have been answered in negative. We agree with and approve rationale and conclusions stated in majority opinion judgment at page 340 of the report. This being so, legal position would be that although requirement is mentioned in section 14 that notice is to be issued for period not less than two months, still provision with regard to service of notice would not be mandatory in nature but directory. If 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. In such circumstances, order of eviction would be passed by Rent Controller after expiry of 60 days from the date of the service of notice.
8. Perusal of preamble of Sindh Rented Premises Ordinance, 1979, shows that it was promulgated to make effective provisions for regulation of relations between landlords and tenants and protect their interests in respect of rented premises within urban areas. It appears that the intention was neither to make this law as pro-landlord nor as pro-tenant but to maintain proper balance in order to protect interests of both the parties. Section 15 of the said Ordinance makes general provision for eviction of tenant at the instance of landlord on several grounds including requirement of tenement for bona fide personal use of landlord or his spouse or any of his children. Similar remedy is available in section 14, but for special category of landlords, whose qualifications are also mentioned and further procedure has been made more simple and in fact, eviction is to be granted in summary manner but for that purpose certain prerequisites are also prescribed which are to be followed. At this stage, it would be pertinent to reproduce section 14 of the said Ordinance in totality:-- "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 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."
9. Purport of section 14 is to make it easy for special category of landlords, such as, widow, minor whose both parents are dead, salaried employee due to retire or a person who is due to attain age of 60 years, to obtain eviction in a summary manner deviating from procedure laid down in section 15 in which landlord has to prove his good faith. In section 14, landlord does not have to prove good faith and it becomes incumbent upon the Rent Controller to pass order of eviction without calling upon landlord to prove his good faith. Minute study of section 14 clearly shows that under subsection (1), when landlord becomes qualified, he has to issue notice to the tenant, calling upon him to vacate within such time, as may be specified in the notice, not being earlier than two months from the receipt of the notice. Second stage is that, in case, in accordance with notice, if tenant does not vacate then landlord shall make an application to the Rent Controller for eviction.
10. Third stage is that after such application is filed, Rent Controller shall order eviction of tenant from the building in a summary manner by using such force, as may be necessary. As contemplated in section 14, summary eviction of tenant is subject to two riders. Firstly, landlord shall not get eviction where he has rented out the tenement after being qualified for relief of summary, eviction.
11. Secondly, if landlord is already in occupation of a building owned by him in any locality. After application is riled under section 14, Rent Controller shall make enquiry in order to satisfy, whether requirements of section 14 have been fulfilled or not, as stated above, including question of service of notice. .
12. So far landlord is concerned, if action is to be taken by him under section 14, he cannot invoke the jurisdiction of the Rent Controller, unless he has issued notice to the tenant as per statutory requirements mentioned therein. Statutory requirements are, firstly, that the landlord should be qualified to be the person who is entitled for this benefit, and secondly, that he has to issue notice allowing time to the tenant not less than two months. Perusal of subsection (3) of section 14 clearly shows that Controller cannot assume jurisdiction unless requirement of notice in subsection (1) is fulfilled and answered. Sum total of above discussion is that requirement of notice under section 14(1) of the said Ordinance is statutory and must be fulfilled, as if it is mandatory. There is precedent for the view that certain portions of an enactment have been treated as mandatory and certain others as directory. For instance, provisions of section 175(3) of the Government of India Act, 1935, which is equivalent to Article 173(3) of the present Constitution, have been split and construed to be partly mandatory and partly directory. So far the provisions relating to the form of contract are concerned, requiring contracts to be in the name of Governor-General or the Governor of the Province, have been construed to be directory with the result that noncompliance therewith does not render the contract void or unenforceable. Only that part of the section which directs that contract shall be executed by such persons as are authorised, has been construed to be mandatory, with the result that a contract by a person who had no authority to execute such a contract on behalf of the Governor is void and unenforceable. In support of the proposition, reference can be made to the case of Pakistan v. Amin Agencies Ltd. PLD 1962 Kar. 467.
13. Reference can be made to Maxwell on the Interpretation of Statutes (12th Edition at page 328), relevant paragraph is reproduced as under:-- "Where the act or thing required by the statute is a condition precedent to the jurisdiction of a tribunal, compliance cannot be dispensed with and, if it be impossible, the jurisdiction fails. It would not be competent to a Court to dispense with what the legislature has made the indispensable foundation of its jurisdiction:"
14. Similarly, in The Public Prosecutor v. Oie Hee Koi (1968) A.C. 829, the Privy Council observed at page 852 as under:-- "The direction not to proceed with the trial which is to be given in the case of a protected prisoner of war is mandatory that is to say imperative in character. It seems that enactments regulating the procedure to be followed in Courts are usually imperative and not merely directory. See Maxwell on Interpretation of Statutes, 11th Ed. (p.367). The direction is one which is given to the Court of trial itself, that is to say to the Court of first instance. It does not purport to be an ouster of jurisdiction but is a direction not to proceed until etc."
15. In the case of E.A. Evans v. Muhammad Ashraf PLD 1964 SC 536, which relates to the interpretation of section 30(1) and (2) of the Displaced persons (Compensation and Rehabilitation) Act, 1958, it was held as per majority opinion that the provisions with regard to notice cannot be held to have been complied by implied notice or information received aliened. Reason given was that by express language the notice was required to be served by registered post (acknowledgement due), therefore, notwithstanding such clear and unambiguous words, to hold that implied notice would be sufficient would render some words in enactment redundant, which cannot be done, because the rule is that every word in a statute has to be given a meaning and therefore it was held that notice in writing must be given.
16. Coming back to section 14 of Sindh Rented Premises Ordinance, 1979, it can be held, in view of what is stated above, that service of notice in writing (inform the tenant that he or she need the building for personal use and require him to deliver vacant possession) is mandatory, but the form of notice and other details are matters of form and are merely directory requiring substantial compliance only. Section 14 of the said Ordinance gives special right to the landlord to terminate tenancy if the prescribed conditions can be fulfilled and he is entitled to do so. Therefore, in order to bring an end to the relationship between landlord and tenant, noshing was considered to be left to doubt or conjecture hence notice in writing was provided for.
17. In section 14, after prescribing qualifications of landlord when it comes to speaking about notice, it is said that the landlord "may" by notice in writing inform the tenant-----Here word "may" is used to enable the landlord to make a choice between remedies provided in section 14 and section 15 of the same Ordinance on the common ground. Word "may" also enables landlord to give more time in the notice to the tenant than two months.
18. Section 14 is to be given liberal interpretation for the reason that it is remedial provision.- It is to be interpreted in such a way that no hardship is caused and the purpose for which this Ordinance is promulgated is fulfilled. Section 14 contemplates summary eviction in favour of landlord who has qualified to be entitled to such relief. If he has done what the statute requires of him to do then technical objection should not come in his way and prevent him from obtaining the relief to which he is entitled. For example, if landlord has complied with the requirements of section 14 including issue of notice and then files application for eviction under that provision before the Controller before expiry of two months from service of notice, then proceedings would not be vitiated if ultimately eviction is granted after two months from the date of service of notice. Courts are allowed to hold so on the basis of principle that if action is filed prematurely and cause of action matures during the pendency of the proceedings, then action can be allowed and in consequence, relief can be granted. In the case of Mst. Amina Begum and' others v. Ghulam Dastgir PLD 1978 SC 220, landlord who was transferee of the shop on the basis of P.T.O. Applied for ejectment on several grounds but ejectment was granted only on the ground of re-construction of the shop. Appeal of the tenant in the District Court Sargodha and second appeal in the High Court were dismissed. In High Court, plea was raised by the tenants for the first time that they were entitled to the statutory protection against ejectment for six years, hence order of ejectment passed against them before expiry of that period was without jurisdiction. It was held by the High Court that landlord had served statutory notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, and afterwards filed application for ejectment under section 13 of West Pakistan Urban Rent Restriction Ordinance, 1959, in 1966, which was not decided until 1972, hence whatever protection was claimed by tenants, came to an end by efflux of time during pendency of proceedings before the Rent Controller which had immerged on for more than six years. Cause of action had thus matured against the tenants during the pendency of those proceedings hence order of ejectment could be passed against them on merits. Affirming finding of the High Court, Supreme Court observed that the Rent Controller and the Appellate Authorities under the Ordinance, in exercise of discretion vested in them, are not precluded to allow any bona fide amendments and take note of subsequent events in order to suitably mould the relief on the basis of the altered circumstances in order to avoid multiplicity of litigation and shorten the proceedings.
19. In the case of Raja Muhammad and others v. Haji Muhammad Zareen and others 1980 SCMR 339, similar question arose for consideration in which ejectment application was filed before expiry of three months statutory period allowed to the tenants. Relying upon the rule laid down in Mst. Amina Begum's case that relief can be granted on merits if cause of action had accrued during the pendency of proceedings, Supreme Court dismissed petition with further observation that counsel in that case had failed to satisfy that results on merits would be different if petitioners were allowed to file fresh ejectment application.
20. In the case of Wali Muhammad and another v. Mst. Hamida Bai (1983 SCMR 191), ejectment application filed under section 14 of the said Ordinance was allowed and in consequence ejectment was granted. Appeal in the High Court was dismissed and objection raised by the tenant that ejectment application was filed prematurely before expiry of time of two months in the notice was not accepted on the ground that such objection was not raised in the proceedings before the Rent Controller and meanwhile one year had passed during which cause of action had matured.
21. Supreme Court, agreeing with High Court, held that no exception could be taken to the validity of the notice, particularly when no prejudice was caused to the appellants and such objection was not taken before the Rent Controller and had it been done so, defect would have been rectified by the landlady and delay of one year would not have ensued. It was further held that time allowed to the tenant for two months is for the benefit of tenant and is statutory requirement but since in the circumstances of this case, objection was not raised in the proceedings before the Rent Controller, High Court was right in rejecting the same which was eminently against the spirit of the provision allowing summary relief. In the result appeal was dismissed.
22. In the light of case-law discussed above, it appears that the correct legal position is that for application under section 14 of the said Ordinance after fulfilling statutory requirements if ejectment application is filed before the expiry of time of two months allowed to the tenant, then such technical defect would stand cured if in the meantime cause of action has accrued and matured provided by the time relief is granted, period of two months of statutory notice has expired from the date of service.
23. During the hearing of appeal before us at Bar was also cited case of Syed Hassan Askari Rizvi v.
24. Muhammad Aziz reported in PLD 1989 SC 1. In that case landlord, serving in railway police was due to retire and attain age of 60 on 3rd November, 1985. He served notice on the tenant under section 14(1) of the Ordinance on 30th May, 1985, which was received by the tenant on 1st June, 1985. It is thus clear that notice was sent 4 days before the actual date on which it should have been sent.
25. Landlord filed ejectment case on 13th August, 1985. Ejectment was granted but that order was set aside in appeal by the High Court. In the Supreme Court, leave was granted to consider, whether High Court was justified in holding that ejectment proceedings were premature having been initiated on the basis of an invalid notice. Ultimately appeal was dismissed by the Supreme Court maintaining judgment of the High Court, after making reference to the Full Bench decision in the case of Barkatullah Khan v. Mirza Muhammad Hassan reported in PLD 1986 Kar. 309 and distinguishing case of Wali Muhammad and another v. Mst. Hamida Bai, reported in 1983 SCMR
191. Reasoning given by the Supreme Court in Hassan Askari's case is that ejectment case was filed on the basis of notice under section 14(1) of the said Ordinance, which was invalid as it was issued 4 days before the date on which it should have been issued and such objection was raised by the tenant in a general manner in the written statement, on the basis of which issue was framed to the effect, whether case of landlord was governed by section 14 of the Ordinance or not. On this premise, case of Wali Muhammad and another v. Hamida Bai, reported in 1983 SCM R 191 was distinguished. We are of the view that case of Hassan Askari is distinguishable for the reasons, firstly, that notice under section 14 of the Ordinance was issued 4 days earlier in point of time before it became due, hence on the day when it was issued, landlord had not qualified to be entitled to the relief contemplated under section 14 of the Ordinance, as such this defect was jurisdictional defect and not a procedural defect. Secondly, objection was taken by the tenant in the written statement in this context, hence issue was also framed on the point, whether case was covered by section 14 of the Ordinance or not.
26. Reverting to the appeal under consideration, we hold that, as stated above, service of notice as contemplated under section 14 of the said Ordinance, is statutory requirement, which is mandatory and is to be fulfilled. After issue of notice, as prescribed, if application for eviction is filed prematurely before expiry of two months, then such defect being procedural in nature, would not vitiate the proceeding if in the meantime cause of action had accrued and matured provided eviction is granted after expiry of two months from date of service of notice. Second question in the leave granting order is, whether filing of case previously under section 15 of the Ordinance would constitute sufficient notice under section 14(1) of the Ordinance. Our reply to this question is negative for the reason that issue of notice under section 14(1) of the Ordinance is very essential requirement, having full force of mandatory requirement which has deep roots in the jurisdiction of Rent Controller in subsection (3) thereof to provide summary eviction as is contemplated under section 14. As stated above, in this case admittedly no notice under subsection (1) of section 14 was issued at all. Previous proceedings filed by the landlord, of which tenant was aware, were filed under section 15 and not under section 14. Remedy under section 14 is special remedy, which is available to particular classes of landlords, who are to be entitled to such remedy in special circumstances. Not only that but the landlord is to issue notice after he is qualified to avail that remedy and that notice must specify time of not less than two months. Perusal of subsection (3) of section 14 further shows that Rent Controller would be able to exercise jurisdiction only when tenant has failed to deliver possession as provided in subsection (1). Jurisdiction of Controller under subsection (3) is dependent upon compliance of statutory requirements mentioned in subsection
(1) of section 14. In these circumstances and for the reasons stated above, we are of the view that failure of landlord to issue notice under subsection (1) of section 14 of the said Ordinance has caused jurisdictional defect in the proceedings which cannot be cured by saying that tenant was aware of previous proceedings under section 15. In this case reliance put by learned Judge in the High Court on the case of Mir Mustafa Ali Khan v. Mst. Safia Maqsood, reported in 1983 CLC 349, was not apt for two reasons. Firstly, that in the reported case notice was issued under section 14(1) but service of notice was disputed while in the case under consideration, no notice was issued at all.
27. Secondly, we do not agree and approve dictum in the judgment of the High Court in the case of Mir Mustafa Ali Khan, mentioned above, that landlord cannot be non-suited on technical ground as he can bring another application after service of notice, for which there can be no defence for the reason that allowing this would tantamount to rendering statutory requirements of subsection (1) of section 14 to almost redundancy. We are of the view that notice must be issued as contemplated under subsection (1) of section 14 and statutory requirements which are mandatory in nature must be fulfilled, after that if action is filed prematurely, then that defect being procedural in nature would stand cured if action had matured in the meantime during the pendency of the proceedings provided order of eviction is passed after expiry of two months notice time.
28. On merits also, landlady is not entitled to summary eviction for the reason that tenant has taken plea in written statement and in the evidence that landlady is in occupation of House No.1-H/6-4, Nazimabad, which is owned by her and which consists of two floors containing six rooms in all. This plea is neither denied nor disputed by landlady in her evidence before the Rent Controller. In such circumstances, finding of High Court is not correct to the effect that tenant should lave proved his assertion by documentary evidence, particularly when assertion is not called in question or challenged by the landlady. Secondly, landlady In previous Rent Case No.6876/1980 under section 15 of the said Ordinance, applied for ejectment, inter alia, on ground of personal need and tenant took the same plea as in this case stated above, and the rent case was dismissed with finding on this issue against the landlady. Landlady filed in the High Court First Regular Appeal No.1059 of 1982 against dismissal of her rent case and subsequently the said appeal in the High Court was withdrawn by her vide order, dated 9-10-1983.
29. For facts and reasons stated above, we set aside judgment of the High Court and restore order of Rent Controller, whereby ejectment application is dismissed.