' AJMAL MIAN, J.---This is an appeal with the leave of this Court against the judgment, dated 14-11- 1993 passed by a learned Single Judge of the High Court of Sindh in F.RA. No,74 of 1993 filed by the respondent against the ejectment order, dated 24-12-1992 of the learned III, Senior Civil Judge/Rent Controller,' Karachi (Central), in Rent Case No,1024 of 1988 under section 14 of the Sindh Rented Premises Ordinance, 1979, hereinafter referred to as the Ordinance, allowing the same by setting aside the above ejectment order. Leave to appeal was granted to consider the following questions:-- "(1) Whether notice served by the appellant under section 14 of the Ordinance on the respondent was valid?
(2) Whether the appellant's application under section 14 of the Ordinance could be dismissed on the ground that it was filed after the expiry of about 3-1/2 years?
(3) Whether the appellant's above application under section 14 was hit by the provision of subsection (2) of section 14 of the Ordinance?"
2. The brief facts are that the appellant filed Rent Case No,3625 of 1980 (New Rent Case No,2324 of 1985) in 1980 under section 15 of the Ordinance against the respondent for ejectment from the suit shop on the ground of personal requirement by averring that he had been doing business as hawker and because of advanced age, infirmity and persistent ailment, it was not possible for him to continue the business of hawker. The above rent case was resisted by the respondent inasmuch as he filed a written statement, in which it was averred that the appellant was a greedy person and the case was filed with mala fide intention to get Pagri from the incoming tenant. The learned Rent Controller, after framing issues and recording evidence by his order, dated 1-10-1985, allowed the above rent case and granted ejectment on the above ground. Against the above ejectment order, the respondent filed F.RA. 599 of 1985. While the above F.RA. Was pending, the appellant after attaining the age of 60 years, served a notice dated 5-11-1985 under section 14 of the Ordinance.
The respondent's above F.RA. Was allowed by the High Court through the judgment dated 8-11-1988 and the above order of ejectment was set aside. Thereupon, the appellant filed present rent case, namely, Rent Case No,1024 of 1988 on or about 30-11-1988 under section 14 of the Ordinance. The above rent case was also resisted by the respondent, inasmuch as he filed written statement, in which a number of legal pleas were raised, namely, the application as framed was not maintainable, the application was barred and not maintainable in view of the judgment of the 'High Court in above F.R.A. No,599 of 1985, the application was barred by section 14 of the Ordinance, and the shop in suit was not a 'building' within the meaning of section 14 of the Ordinance etc. On merits,, it was denied that the appellant needed the suit shop or he was working as a hawker. It was also pleaded that the portion behind the suit shop was in possession of the appellant and was being used for business purposes. It was also pleaded that a sum of Rs,10,000 was deposited with the appellant. It was further pleaded that the appellant demanded the enhancement of rent from Rs,60 to Rs,500. It was also averred that notice under section 14 of the Ordinance was not maintainable in law, and, therefore, the proceedings founded on the same were not maintainable.
3. On the basis of pleadings of the parties, the learned Rent Controller framed the following three Issues:--- "(1) Whether the application is maintainable in law after decision of the Hon'ble High Court in F.RA.
No,599/85?
(2) Whether the applicant has attained the age of 60 years and requires the premises in question for his personal bona fide use in good faith?
(3) What should the order be?"
' The learned Rent Controller, after recording evidence and hearing the parties, answered Issues Nos.1 and 2 in the affirmative. Consequently, under Issue No,3, he ordered the ejectment of the respondent.
4. Against the above order, the respondent filed aforesaid F.RA., which was allowed by a learned Single Judge by his above judgment dated 14-11-1993. Thereupon, the appellant filed a petition for leave to appeal, which was granted to consider the above questions.
5. We have heard Mr. Imran Ahmed, learned Advocate Supreme Court for the appellant and Mr. Talmiz S. Burney, learned Advocate Supreme Court for the respondent.
6. The first ground which found favour with the learned Judge in chambers is that the appellant filed the above rent case under section 14 of the Ordinance after more than 3-1/2 years from the date of attaining the age of 60 years. Mr. Imran Ahmed has urged that the above ground is not sustainable keeping in view the admitted facts. He has pointed out that the above appellant was granted ejectment order by the learned Rent Controller on 1-10-1985 under section 15 of the Ordinance on the ground of personal requirement. The above order was assailed by the respondent in the aforesaid F.RA. No,599 of 1985, which was allowed on 8-11-1988. The appellant filed the above rent case under section 14 of the Ordinance on or about 30-11-1988 i,e, in about three weeks' time from the date of decision of the High Court in the above F.RA. It may be pointed out that section 14 does not provide any period of limitation, within which an application under the above provision is to be filed. The original proviso to subsection (1) of section 14 of the Ordinance provided as under:--- "Provided that nothing in this subsection shall apply where more than six months have elapsed since the landlord has retired or attained the age of sixty years or, as the case may be, has become widow or orphan."
' The above proviso was substituted by the Sindh Rented Premises (Second Amendment)
Ordinance, 1980, (XII of 1980) on 1-9-1980 by the following proviso:-- "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."
7. Mr. Imran Ahmed has referred to the case of Hafiz Abdul Malik v. Muhammad Ilyas PLD 1989 SC 356 in which this Court has made the following observation on the above aspect:-- "We have carefully considered the argument of learned counsel for the parties and perused the record. The Sindh Rented Premises Ordinance, 1979 came into force on 21st November, 1979 and therefore the appellant could only avail of the benefit of the provisions of section 14 of the Ordinance thereafter. Consequently, it is evident that the observation of the High Court to the effect that the appellant remained silent for over 15 years after attaining the age of sixty years and did not come to avail of the said benefit was not justified. Indeed he did file the rent application under the aforesaid section after 4 years i,e, on 25th June, 1983, but then the said application was maintainable as there was no time fixed under the aforesaid section whereunder such application could be or should be moved."
8. On the other hand Mr. Talmiz S. Burney has referred to the following cases:--
(i) Manzoor Hussain v. Mst. Naheed Akhtar and 14 others 1991 M LD 724 at p.730;
(u) Ghulam,Muhammad v. Zahir Ahmad Khan 1986 CLC 681; (iii) Arshad Butt v. Manzoor Ahmad 1992 CLC 723 at p.726.
' In the above first case, a learned Single Judge of the High Court of Sindh has held that though section 14 of the Ordinance does not prescribe any period of limitation, yet inordinate delay in filing of an application under the above provision would militate against genuine need of landlord and would indicate that it was arbitrary desire of the landlord to have the demised premises vacated.
' In the above second case, a learned Single Judge of the High Court of Sindh has held that though under section 14 of the Ordinance a landlord was not required to prove bona fide requirement, but at least he is to prove that he needed the premises.
' In the third case, the same learned Judge who decided the above first case, after referring the same, pointed out that in the above report the respondent had retired from service on 10-8-1986 but he filed the rent application under section 14 of the Ordinance on 5-4-1989 i,e, 2 years 7 months and 25 days after the retirement. He also held that a landlord moving an application for eviction under section 14 of the Ordinance has to establish his prima facie need and the delay would militate against the same.
9. In the present case the appellant was able to show a justifiable reason not to file an application under section 14 of the Ordinance immediately on the expiry of two months period from the date of service of above notice dated 5-11-1985 under the above provision, namely, that the learned Rent Controller had already granted an ejectment order on the ground of personal requirement in his earlier application under section 15 and, therefore, if the above order would have been maintained by the High Court in F.R.A. No,599 of 1985 filed by the respondent, the need for filing an application under section 14 would not have arisen. As the above F.R.A. No,599 of 1985 was allowed on 8-11-1988, the appellant filed the aforesaid rent case under section 14 of the Ordinance on or about 30-11-1988 as pointed out hereinabove within a period of about three weeks. Keeping in view the above fact, the learned Judge in Chambers was not justified to non-suit the appellant on the ground of delay in filing of the above rent case under section 14 of the Ordinance. Even legally the above ground which prevailed with the learned Judge in Chambers is not in consonance with the law as enunciated by this Court in the case of Hafiz Abdul Malik v. Muhammad Ilyas (supra), the relevant portion of which is reproduced hereinabove. The above cases relied upon by Mr. Talmiz S. Burney do not lay down the correct law. The above first and third cases run counter to the above judgment of this Court, whereas the second case is also contrary to what has been held by this Court in more than one case that under section 14, a landlord who fulfils the requirements of the above provision, is not required to prove his bona fide need or prima facie need. The law-makers through the above provision wanted to grant benefits to the specified persons to seek ejectment if they fulfilled the condition contained therein, which did not require either proving of bona fide need or prima facie need. It may again be repeated that there is a distinction between an application under section 14 and section 15 of the Ordinance inasmuch as in the former case, a landlord is to prove that he fulfils the conditions contained therein; whereas in the latter case, a landlord is to prove his bona fide requirement if he wishes to seek ejectment on the ground of his personal requirement.
10. The learned Judge in Chambers has also referred to the above original proviso to subsection (1) of section 14 of the Ordinance which in fact stands substituted as pointed out hereinabove and, therefore, he erred in taking into consideration the above provision while non-suiting the appellant.
The learned Judge further held that the appellant was in possession of the remaining portion of the building where he was carrying on his business and, therefore, he was not entitled to invoke section 14 of the Ordinance in view of subsection (2) thereof which provides that "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".
11. The above conclusion is not well founded and is the result of misreading of evidence. In this regard, it may be pertinent to point out that though in the written statement the respondent had taken the above plea, but the same was not repeated in his affidavit-in-evidence. On the contrary, the appellant in his affidavit-in-evidence specifically denied in paras. 4 and 5 as under:-- "4. I am doing business of selling vinegar (Sirka) on Reri {{URDU TEXT}} like a hawker and have been selling in different localities since long. I am now over 63 years of age and my date of birth is 25th July, 1925. Due to my old age I am physically weak and am not so energetic as I was earlier. I do not also possess good health and have no stemna to sell vinegar (Sirka) in street as a hawker and as such my income has also been reduced to a great extent. Therefore, I have decided to do the business in my own shop. I will sell vinegar (Sirka), pickle (Achar) and ketch-up (Chatani) in the shop as I have got good experience to do the said business and I need the premises for the said business. I am not in occupation of any shop nor any shop has been vacated by my tenant.
5. My shops are rented since 1963, one is with HA. Tailor while other shop is with the opponent. Since the shop in occupation of the opponent is the first shop just adjacent to the stairs leading to my first floor residence, it will be more appropriate, convenient and suitable for me to do the business and there will also be no interference of other 'tenant whose shop is second from the staircase of my first floor residence."
12. Though the learned counsel for the respondent had extensively cross-examined the appellant but he was unable to bring out any admission or material which could impair the credibility of the appellant's above-quoted averments. In this view of the matter, the above conclusion, as observed hereinabove, is not well founded.
13. There is no doubt that the appellant is occupying residential premises in the same building on the upper floor but that does not disqualify him from invoking section 14 of the Ordinance as has been held by this Court in the case of Abdul Majid v. Mst. Naimun Nisa Begum 1985 SCM R 239. In the above case this Court, while declining a petition for leave to appeal, observed as under on the controversy in issue:--- "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 by the learned counsel to subsection (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 from a residential premises though the same may be required for the personal use of the landlord. The contention, therefore, is without force."
14. On the other hand, Mr. Talmiz S. Burney has referred to the case of Bakhsh Elahi v. Qazi Wasif 1985 SCM R 291 in which this Court has held in that a landlord would not be entitled to invoke section 14 if he was in occupation of a building owned by him in any locality notwithstanding that such other building might not be suitable for his need.
15. The above case does not help the respondent as at page 300 of the above report, it has been clarified that the above judgment did not intend to disturb or upset the ratio of Abdul Majid v. Mst.
Naimun Nisa Begum (supra), which was not challenged before them. It may also be pointed out that in the above report the facts were entirely different as reflected in para. 7 of the judgment, which reads as follows:--- "7. In order to appreciate the argument of the learned counsel it is necessary to state some facts.
As admitted by the landlord in his deposition in the previous proceedings there are three tenements in the building in which the disputed premises are located. On the first floor there are two tenements and on the ground floor there is one tenement which is occupied by the appellant.
As far as the tenements on the first floor are concerned, they were admittedly rented out by the landlord on 20-12-1980 and 15-12-1980. It is also an admitted position that on 4-4-1980 the respondent had put up an advertisement for the disposal of the tenements in the newspaper.
Another important fact admitted by the landlord was that on 11-10-1980 when he served the first notice upon the appellant, some other tenants were in occupation of the tenements on the first floor. This evidence has been brought on the record of the present proceedings. The effect of the statement made by the landlord is that between 11-10-1980 the date of service of notice under section 14 and 15-12-1980 as well as 20-12-1980 the dates on which he re-let the first floor tenements, he was in occupation of another building owned by him in the same locality."
16. We are inclined to hold that the respondent failed to prove that the appellant was in possession of a portion of the building in question which may have nexus with the suit premises of which the ejectment is sought. To put it differently, the respondent failed to prove that the appellant is in possession of a portion of the building in question which is used for commercial purposes.
17. It was also vehemently urged by Mr. Talmiz S. Burney that the notice under section 14 of the Ordinance inasmuch as it does not state that the appellant needed the suit shop for his personal use.
18. The above contention is also devoid of any force. A perusal of the contents of the above notice dated 5-11-1985 clearly indicates that the appellant had referred to his bona fide need in para. 1 thereof. There has been substantial compliance with the provision of section 14 of the Ordinance as has been held by this Court in the case of Iqbal Yousuf v. Kishwar Jehan 1991 SCM R 864. In the above case, it has been held that if notice under section 14 of the Ordinance gives substantially the information required by law in clear understandable manner, then the omission to give certain details or failure to mention a particular date in a particular manner or any other similar technical defect would not invalidate the notice.
19. The upshot of the above discussion is that the impugned judgment under appeal is not sustainable. The appeal is allowed, the judgment of the learned Judge in Chambers is set aside and the order of the learned Rent Controller is restored. However, the respondent is allowed four months' time from today on the condition that he shall continue to pay rent regularly, failing which, the appellant will be at liberty to file an execution application before the expiry of the above period of four months. Additionally if the respondent fails to hand over the vacant possession on the expiry of the above period of four months, the learned Rent Controller shall issue a writ of ejectment without any further notice to the respondent.