'The question that has been raised in this appeal filed under section 21 of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance) relates to the interpretation of subsection (2) of section 14 of the Ordinance.
2. The respondent is the owner/landlady of Newyork Wala Building situated on Plot S.No,1/14-B, PR-I, Gidwani Street, Karachi, and the appellant is her tenant in respect of tenement No,12, situated on the Ground Floor at a monthly rent of Rs.125, which is being used as godown. The respondent who is an old ailing lady wants this premises to use a portion thereof for running a small business and to reside in the remaining portion under medical advice, as she being a chronic patient of backache and her son being a disabled person are unable to climb upstairs at the top floor .where they are presently living. The appellant was, therefore, served with a notice under section 14 of the Ordinance calling upon her to vacate the disputed premises for the reasons mentioned above. The failure of the appellant to do so led the parties into this litigation.
3. The appellant in her written statement disputed the ground on which her ejectment was sought.
She alleged mala fides against the respondent by stating that she had made two attempts to eject her prior to this also in which she failed and finally compromised before this Court in F.RA. No,182 of 1985, wherein by consent the rent was increased from Rs.50 p.m. to Rs.125 p.m.
4. The parties went to trial on the following issues:--
(i) Whether the applicant is entitled to get the possession of the premises in possession of the opponent under section 14 of the Sindh Rented Premises Ordinance, 1979?
(ii) What should the order be?
5. The respondent examined herself (P.W.1), and Abdul Latif (P.W.2). To rebut this evidence the appellant examined her attorney Shaikh Muhammad Islam (D.W.1).
6. On the assessm ent of evidence available on record the learned Rent Controller decided Issue No,1 against the appellant directing her eviction from the demised premises within a period of one month. This order, dated 13-4-1991 is the subject-matter of the present appeal.
7. I have heard Mr. J.H. Rahimtoola, learned counsel for the appellant and. Mr. I.I. Suleman, learned counsel for the respondent I have also gone through the record of the case carefully.
8. Almost all the material facts in this case are either admitted or proved from the record. They are as follows:--
(i) The respondent is an old lady of more than 60 years of age.
(ii) The respondent has been residing on the top floor of the building where the disputed premises is situated.
(iii) The appellant is using the disputed premises as commercial one (godown) from the very inception of tenancy.
(iv) A notice under section 14 of the Ordinance was served upon the appellant before filing this application under section 14.
(v) The purpose for which the disputed premises is required is partly commercial and partly residential.
(vi) The respondent is not in occupation of a commercial premises owned . by her in any locality.
9. Upon the arguments that have been addressed to me by Mr. J.H. Rahimtoola, who has appeared for the appellant, the case is to be approached from two points of view; Firstly, whether the plea of want of bona fides is relevant in a case where ejectment is sought under subsection (1) of section 14 of the Ordinance, and, secondly, whether the landlady who is admittedly in occupation of a residential premises in the same building can seek eviction of the appellant/tenant from the disputed premises on the ground that the same is more suitable to her needs. As regards the first part of his arguments the question has been set at rest by a Division Bench of this Court in the case of M.S. Baroba v. Manzoor Ahmad, reported in PLD 1986 Kar. 407, wherein it was held:-- "Accordingly we hold that in a case under section 14 of the Sindh Rented Premises Ordinance, 1979 the question of "good faith" or "bona fide" is not to be looked into but the Controller has to see the landlord fulfils the conditions mentioned in section 14 which we have enumerated above."
10. The second line of defence taken up by the learned counsel for the appellant is against devoid of force. Subsection (2) of section 14 of the B Ordinance provides an exception in the following words:-- "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."
' As observed in the well-known case of Bakhsh Elahi v. Qazi Wasif All reported in 1985 SCM R 291, the unsuitability of another building in occupation of the landlord/landlady, would be no ground for not applying bar contained in subsection (2) of section 14 in the context of the purpose for which eviction was sought under subsection (1) of section 14. The present case has got certain distinguishing features. The respondent wants the disputed premises mainly for commercial purpose, although she also intends to occupy a portion thereof for residential purposes for the reasons mentioned in para.2 ante. This question was examined in Abdul Majid v. Mst. Naimun Nisa Begum, reported in 1985 SCM R 239 and Ulfat Hameed v. Mst. Birjis Khatoon reported in PLD 1982 Kar.
823. I cannot do better than quoting the weighty observations made by Fakhruddin G. Ebrahim, J (as he then was) in the earlier citation, "The learned counsel contended that admittedly the landlady owned and possessed residential premises in the same locality and therefore, the benefit of a summary eviction under subsection (1) of section 14 was not available to her. The learned counsel went on to argue that the language of subsection (2) is of the widest import and would mean that there would no occasion for a landlord to have recourse to subsection (1) if the landlord is owner in possession of any premises in any locality irrespective of the purpose for which the eviction was sought or the purpose to which the owned premises was in use. To our mind subsection (2) of section 14 cannot be read in isolation from subsection (1) for there has to be a nexus between the personal use for which the eviction is sought, and the premises said to be owned and possessed by the landlord in any locality referred to in subsection (2). The wide meaning sought to be put up by the learned counsel to subection (2) would negate the very intent of the legislature which is to give the benefit to certain class of persons to obtain summary eviction for personal use only, if the other building owned by the landlord was in fact not put to such use or capable of being put to such use for which purpose eviction is sought, the existence of such other building would be irrelevant for the purpose of subsection (1) of section 14. To give an illustration, a landlord may be owner occupant of a godown premises in any locality which premises cannot reasonably be used as residential premises, but if the meaning sought to be given by the learned counsel is accepted, the result will be that such landlord cannot evict a tenant frpm a residential premises though the same may be required for the personal use of the landlord. The contention therefore, is without force."
11. An attempt was also made on behalf of appellant to make it a case of fresh tenancy due to compromise in F.R.A. No,182 of 1985, whereby the respondent had agreed to accept enhanced rent with effect from 1-7-1986, thereby disentitling her from seeking summary ejectment in terms of section 14 the Ordinance. The answer to this contention is again provided by Ajmal Mian, J (as he then was) in the case of Anjum Hameed and another v. Mrs. Bilquis, reported in 1988 MLD 2541, wherein it was made clear that an increase of rent. by mutual agreement during the operation of tenancy would not constitute renting out the premises within the meaning of the proviso to subsection (1) of section 14 of the Ordinance.
12. A point which was touched upon by Mr. J.H. Rahimtoola, learned counsel for the appellant during the course of his well prepared address may now be dealt with. It is contended that the respondent had filed two applications under section 14 of the Ordinance, one against the present appellant and the other against Naeem Malik, the tenant of other premises situated on the ground floor and out of these ejectment cases the case against the appellant was allowed, while the case filed against the other tenant was dismissed. In other words it is submitted that the appellant was discriminated for no obvious reason. This question has got only academic value. The , respondent wanted the premises situated on the ground floor and she got a favourable order against the appellant. After all she had to select one premises out of the two.
13. Taking all these circumstances into consideration, I find no merits in this appeal which is accordingly dismissed with costs. Two months' time is, however, allowed to appellant to vacate the demised premises.