' Appellant Arshad Butt, has called in question the order dated 5-8-1991, passed by the IVth Senior Civil Judge and Rent Controller, Karachi (East), ordering his eviction from the premises in litigation.
2. Said order was passed in Rent Case No, 37/89 filed by respondent Manzoor Ahmad under section 14 of Sindh Rented Premises Ordinance, (hereinafter mentioned as the Ordinance), for eviction of the appellant from the premises in litigation viz. Ground floor of the building bearing No, B-50, Block No,2, P.E.C.H. Society, Karachi.
3. Admittedly appellant is tenant of the respondent in said premises on monthly rent of Rs,500 according to the respondent and Rs,300 according to the appellant. Eviction of the appellant was sought on the main ground that the respondent has retired from service after attaining the age of 60 years and he required the premises in litigation for personal use and for use of his children. The ground of default in payment of rent was also incorporated in the rent application, which was moved under section 14 of the Ordinance.
4. The rent case was contested by the appellant who in his written statement averred that at the time of obtaining premises on rent he had paid to the respondent 10,000 as security deposit and that initially he was given five rooms of the premises in litigation on rent, but subsequently, three of the rooms were occupied in his absence by the respondent forcibly. Appellant denied receipt of notice under section 14 of the Ordinance and challenged right of the respondent to seek his eviction on the ground of retirement from service. It was added that the respondent had already filed a rent case under section 15 of the Ordinance and during the pendency of that case, present application was moved in order to harass him (appellant). Appellant denied being defaulter in payment of rent and took stand that the respondent refused to accept the rent for January 1982 and onwards and the same was deposited in Misc. Rent Application No,1417/1982.
5. After allowing the parties to adduce evidence, learned Rent Controller accepted the application and ordered handing over of the premises in litigation to the respondent within sixty days from order dated 5-8-1991. Hence this appeal.
6. Mr. Muhammad Sadiq, learned counsel for the appellant argued that as per the notification dated 8-8-1985, copy Annexure II filed in the case, the respondent had retired from service with effect from 10-8-1986 and the delay, in filing the rent case on 5-4-1989, has not been explained and as such it can be presumed that the respondent had no genuine requirement of the premises in question. It was next argued that in terms of subsection (1) of Section 14 of the Ordinance, the respondent had to prove that he had sent a notice in writing to the appellant informing him that, the disputed premises were required for personal use and that the appellant should deliver vacant possession of the same within a period to be specified in the notice, not being less than two months. It was further argued that case of the respondent was hit by subsection (ii) of Section 14 of the Ordinance, because he was in occupation of three of the rooms of the building in question, on the ground floor, which were occupied forcibly at back of the appellant. Learned counsel for the appellant also took plea that the property in question was sold by the respondent to Abdul Sattar, who had given evidence on his behalf as his attorney, and that this was proved by last para of the power-of-attorney, copy Exh.A/2. Lastly it was argued that section 14 of the Ordinance gave special right to the owner to seek eviction of his tenant in a summary way, if his case was covered by the provisions contained in section 14 and he needed the premises for personal use and consequently the respondent should have himself entered the witness-box for evidence. In support learned counsel for the appellant cited the cases of:
(i) Iqbal Yousuf v. Kishwar Jehan, 1991 SCM R 864.
(ii) Manzoor Hussain v. Mst. Naheed Akhter and others 1991 M LD 724.
(iii) Mst. Zeenat Ara v. Mst. Amna Begum 1989 CLC 951.
7. Mr. Asghar Hussain, learned counsel for the respondent argued that the respondent was not in possession of any part of the building in question and he had not occupied any part of the demised premises by force or otherwise and he had denied if he owned any house in Green Town.
That even the appellant had admitted in his cross-examination that he did not know if the respondent owned any other house and that first floor of the building in question was occupied by Irfan, who also occupied by force three rooms on the ground floor. Respondent was said to have further admitted in cross that from the beginning he was occupying two rooms. Learned counsel for the respondent further argued that notice under section 14 of the Ordinance was sent to appellant by Registered Post A.D. And copy of the A.D. Receipt was produced in Court and the appellant was presumed to have received the same.
' It was next argued that in an application under section 14 of the Ordinance, the landlord seeking eviction of his tenant, was not required to establish his bona fides and that a party can give evidence through his attorney without entering the witness-box.
8. Mr. Asghar Hussain learned counsel for the respondent cited the cases of:
(i) Muhammad Ashfaq v. Sulleman, 1985 CLC 2374.
(ii) Asif v. Mst. Raisa Khatoon Jafri PLD 1988 Kar.
364.
(iii) Mst. Nur Jehan Begum v. Syed Mujtaba Ali Naqvi, PLD 1988 Kar.
581.
9. The first requirement under section 14 of the Ordinance is fulfilled in this case, as the respondent's side produced on record photocopy Annexure II of a notification issued by the Government of Pakistan, which shows that the respondent has retired with effect from afternoon of 10-8-1986. In his written statement the appellant has not denied retirement of the respondent. Abdul Sattar attorney of respondent said in his affidavit that the respondent retired from his service. In his cross- examination it was not suggested to him if respondent had not retired. In this cross-examination the appellant admitted that he came to know that the respondent had retired from service. It stands proved that the respondent has retired from service with effect from 10-8-1986. Present rent application has been filed on 5-4-1989 viz. Two years seven months and twenty-five days after his retirement. Section 14 of the Ordinance does not prescribe a period within which a retired salaried employee has to move an application under the said section. In the case of Manzoor Hussain 1991 M LD 724 the landlord retired from service on 14-1-1979, but the Ordinance came into force on 21-11- 1979 and the landlord filed ejectment application on 6-12-1982 and in his affidavit the landlord did not give explanation for his filing the case so late. In said case I had taken the view that although no period is prescribed for moving an application under section 14 of the Ordinance, but inordinate delay militates against the genuine need of the landlord and it indicates that it was arbitrary desire of the landlord to have the premises in litigation vacated by his tenant. In the instant case the rent application has been moved after a little less than three years. It need not be mentioned here that a landlord moving an application for eviction of his tenant under section 14 of the Ordinance has to establish his prima facie need as held in the case of Ghulam Muhammad v. Zaheer Ahmed Khan (1986 CLC 681).
10. There is force in contention of learned counsel for the appellant that the respondent did not require the premises in litigation for his personal use to live there, but he had sold the same or he was about to sell the same. Contention of learned counsel for the appellant finds support from last para. Of the power-of-attorney, copy Exh.A/2, where it is mentioned that the power-of-attorney shall be irrevocable and shall remain in force till the said property is completely transferred from the respondent and a sale-deed is executed and registered with the Sub-Registrar of Karachi. No doubt, section 14 of the Ordinance uses the words "needs the building for personal use", and does not use the words "requires the premises in good faith for his own occupation or use", which have been used in Clause (vii) of subsection (2) of section 15 of the Ordinance. But the landlord in either case has to establish his personal need. For establishing personal use, the respondent had to enter the witness-box for asserting on oath that in view of his retirement he needed the demised premises for personal use. On this point respondent's side cited case of Asif (PLD 1988 Kar. 364) where the landlady sought eviction of her tenant on the ground of personal need of her son living in Canada but visiting Karachi with family after every two or three years and the factum of personal requirement was held to be proved under section 15 of the Ordinance. In the cited case son of the landlady had justification for not being able to come to Pakistan and enter the witness- box. Present respondent is not residing abroad but he is said to be living at Islamabad. Had the respondent genuine need for accommodation at Karachi for himself or for any member of his family, he would have come from Islamabad to Karachi for giving evidence and facing the cross- examination. Having retired on 10-8-1986 the age of the respondent is 65 years as admitted by his attorney Abdul Sattar A.W.1. Respondent cannot be held to be incapable of undertaking a journey of 1581 Kilometers at age of 65 years.
11. Respondent examined Abdul Sattar, his attorney who stated in his affidavit that the respondent needs the premises for his personal use. Said Abdul Sattar resides at Karachi while the respondent lives at Islamabad where he was Superintendent in CBR before his retirement in 1985, as per Abdul Sattar. Respondent himself did not file his affidavit-in-evidence. Although retirement of the respondent in 1985 is sufficiently proved, he had yet to prove that he "needs the building for personal use" for the purpose of section 14 of the Ordinance. In case the respondent was unable to give evidence in the trial Court at Karachi, he should have examined somebody well-conversant with him and with his needs. Abdul Sattar claimed friendship with the respondent but he was ignorant about most of the facts. He showed ignorance about name of son of the respondent, about the place where respondent's son was working, about present residence of the respondent at Islamabad, about the respondent having purchased a house in Green Town, Karachi. Abdul Sattar also showed ignorance about the exact address of the respondent, about the number of his family members and about the respondent having filed any proceedings under section 145, Cr.P.C.
In Court of the S.D.M., Central. Evidence of Abdul Sattar alone is not sufficient to prove that the respondent "needs the premises in dispute for his personal use" in terms of section 14 of the Ordinance. In this respect the case of Mst. Noor Jehan PLD 1988 Kar. 581 does not come to the rescue of the appellant because in said case the landlord made statement on oath that besides the drawing-room of the house occupied by him, he required other portion of the property for his bona fide personal use. In the cited case the application moved under section 14 of the Ordinance was converted into one under section 15 of the Ordinance at request of the landlord who found that he was disqualified from seeking relief under section 14 of the Ordinance, by virtue of subsection (2) of section 14 of the Ordinance.
12. Another important issue is about service of notice under section 14(1) of the Ordinance. Under the provisions contained by subsection (1) of section 14, the landlord may by notice in writing inform the tenant that he needs premises for his personal use and require him to deliver vacant possession of the same within a period to be specified in the notice. Requirement of notice under section 14(1) of the Ordinance is statutory and must be fulfilled as held in the case of Iqbal Yousif v.
Kishwar Jehan 1991 SCM R 864. In absence of proof about prior service of notice under subsection (1), an application under section 14 of the Ordinance is not maintainable, as per the view taken in the case of Manzoor Hussain 1991 M LD 724. In the instant case Abdul Sattar stated in his affidavit that on 9-1-1989 a notice was issued to the appellant. Copy of such notice has been produced as Annexure 'A' and copy of the A.D. Receipt has been produced as Annexure "A/2". Copy of the A.D.
Receipt contains a signature which does not appear to be of the appellant, if said signature is compared with the written signature of the appellant. Unfortunately the appellant was not confronted with A.D. Receipt, although he was confronted with copy of the notice under section 14 of the Ordinance. Appellant stated that he was unable to read contents of the notice as he was illiterate. In the circumstances, some tangible evidence should have been brought on record to prove service of notice upon the appellant. Case of Muhammad Ashfaq 1985 CLC 2374 could apply if respondent had given statement that he had despatched the requisite notice to the appellant by Registered A.D. And such evidence had been corroborated by the evidence of Postal acknowledgement receipt. In such case there could be presumption that the communication had reached the addressee in due course. In the present case even the original A.D. Receipt was not produced and was not shown to the appellant during his cross-examination. As held in said case of Muhammad Ashfaq, the requirement of notice has to be fulfilled before the landlord files application under section 14 of the Ordinance.
13. As regards forcible occupation of three rooms on the ground-floor, the stand taken by the appellant is contradicted by his own evidence. In his cross-examination the appellant admitted that from the very beginning he was in possession of two rooms on the ground-floor. He also admitted that it was Irian who in his absence occupied three rooms. He also admitted that first floor was occupied by Irfan as tenant. Appellant further stated in his cross-examination that he did not know whether the respondent owned any other house except the house in question. In view of such admissions it can conveniently be held that the respondent is not in nosession of any house at Karachi, including the property in question. Mere fact that the respondent had given a particular address in his power-of-attorney, does not establish his being in possession of such property at the time of filing the rent case.
' As result of above discussion, I accept this appeal and set aside the impugned order and order dismissal of the rent case.