1. This appeal is directed against the order dated 17-9-1995 passed by learned First Rent Controller, Sukkur whereby he allowed Rent Application No-24 of 1994 ordering eviction of appellant from shop bearing C.S. No.B-2391 Shahi` Bazar, Sukkur.
2. Briefly stated the facts are that the appellant is tenant of the above shop measuring 12 square yards situated in Shahi Bazar, Sukkur and has remained in its continuous possession since last more than 22 years where he is running his business. The appellant was inducted in the said premises by respondent himself and on behalf of other co-sharers claiming to be authorized agent/representative of the other co-sharers with a security deposit of Rs.5,000.
3. The appellant was regularly paying the rent of disputed shop to the respondent and other co- owners and had carried repairs of the shop all along at his own cost. It is appellant's case that all of sudden respondent sent notice dated 5-6-1993 calling upon the appellant to enhance monthly rent at the rate of Rs.4,000 to 5,000 instead of Rs.550 that was being paid by the appellant. The respondent has further mentioned in the notice that the prices of essential commodities have become sky high and no enhancement of rent was being made by the appellant as per the rules and Sindh Rented Premises Ordinance, 1979 whereas the rent is to be enhanced at the rate of 10% per annum as laid down in section 9 (i) and (ii) of the said Ordinance. In notice it is also mentioned by the respondent that appellant is less interested to carry on business in shop as he mostly remains out from Sukkur either to visit India or go somewhere else and is winding-up the business at Sukkur and has already established the same somewhere else. It was also averred in the notice that the shop has been sublet to someone else and rent of Rs.5,000 was being charged by the appellant and further that appellant/tenant has raised construction by erecting one more pucca roof over the top of the rented shop without consent of respondent-landlord. Respondent also claimed in the notice that the shop was required for his personal use. Therefore, the appellant/tenant was given one month period to vacate the premises and hand over its possession to the respondent. After receiving the reply of the notice dated 5-8-1993 respondent sent another notice dated 15-11-1993 to the appellant through his counsel stating therein that the respondent, was a Government employee and due to retire from service within next six months, hence the disputed shop premises were required for his personal use. The appellant in giving reply to the notice of respondent's counsel apprised him full facts about the mala fides of the respondent and disclosed that respondent has got minor share in the disputed shop and other co- sharers have major share of 84 paisas and they have not authorized the respondent to invoke the provisions of section 14 of Sindh Rented Premises Ordinance, 1979. As the other co-sharers are not the Government servants nor they intend to evict the appellant from the disputed premises the issuance of notice was not justified.
4. The respondent/landlord filed the ejectment application on 5-4-1994 under section 14 of the Ordinance on the ground of personal use. The appellant filed his written statement and denied the claim of respondent that he required the disputed premises for his personal use. The appellant averred that in fact by filing the eviction application the respondent wanted to pressurise him for enhancement of rent as already admitted by him in his first notice sent to the appellant on 5-8- 1993. The appellant in his statement further went on to mention that respondent is owner of several other shops newly constructed in the commercial area of Sukkur city bigger in size than the disputed shop.
5. The parties led their evidence by way of filing affidavits before the Rent Controller. The respondent examined himself and produced copy of extract from property register card, rent agreement, notice dated 15-11-1993 alongwith acknowledgement receipt, reply to the notice and certificate of retirement, whereas the appellant examined himself and produced 3 extracts from property register card, notice dated 5-8-1993 and its reply dated 12-8-1993.
6. From the pleadings of the parties the Rent Controller framed the following points for determination: -----
(1) Whether application is not maintainable under the law?
(2) Whether the applicant requires premises in question for his bona fide personal use on the ground of retirement from service?
(3) What should, the order be?
7. After hearing the parties and going through the affidavit and documents produced by the parties the learned Rent Controller allowed the rent application ordering ejectment of the appellant from the premises as stated above.
8. Mr. Nazir Ahmed Awan learned counsel for appellant and Mr. M.A. Rasheed for respondent have been heard at length. Mr. Nazir Ahmed based his arguments on the following points:
(a) That the respondent has not come with clean hands and had not mentioned in his rent application that he owns other shops in addition to the shop in dispute in Shahi Bazar, Sukkur and that he is a co-sharer.
(b) That the respondent has filed eviction application alone and the other co-sharers having 84 paisa share are not made party.
(c) That there has been done misreading/non-appraisal of the evidence by the learned Rent Controller while deciding the application.
(d) That respondent has failed to prove that the shop in question is required for his bona fide personal use and that he admittedly owns three other shops and as per subsection (2) of section 14 of Sindh Rented Premises Ordinance he is not entitled to avail benefit of its subsection (1).
9. (i)Muhammad Yusuf v. Mst. Quresha Begum (PLD 1993 Karachi 502)
(ii) Mst. Fatima Bi v. Issa (1986 CLC 2639);
(iii) Abdul Majid v. Mst. Naimun Nisa Begum (PLD 1981 SC 118); Respondent Shamsher Muhammad has admitted in his cross-examination that he owns the disputed shop to the extent of 0-16 paisas and being the major shareholder is landlord. The rent agreement produced by him in' evidence is entered into between respondent Shamsher Muhammad as landlord and appellant Haji Alimuddin as tenant on 20th May, 1973. Respondent has also admitted in his cross-examination to the counsel for the appellant that he has share to the extent of 16 paisas in other three properties viz. C.S. Nos.D-3/15-A and 3/15-C and that these shops are also let out on rent. In his evidence it has been asserted by the respondent that the other co- sharers had consented to the filing of eviction application by him.
10. On the second contention of appellant's counsel it is pertinent to note that respondent is not only a major shareholder but is landlord also and authorized by other co-sharers to enter into agreement of rent and it was the respondent who inducted the appellant into possession of the shop in 1973 pursuant to rent agreement. There is no controversy to this position as the same has been admitted by the appellant in his pleadings.
11. Appellant's counsel has failed to point out apparent illegality in the impugned order and also could not point out even a single instance of misreading or non-appraisal of evidence by the learned Rent Controller.
12. The respondent in support of the case that he needed the rented shop for his personal bona fide use, sent a notice dated 11-8-1993 to the appellant and thereafter sent another notice dated 15-11- 1993 specifying that he is a Government employee and is due to retire from service within six months and wants the disputed shop for his personal use and filed certificate of retirement issued by Principal, Government Islamia Arts/Commerce College, Sukkur and also a Notification dated 1- 6-1994 issued by Government of Sindh Education Department showing that on attaining the age of superannuation the respondent is retired from Government service with effect from 14-5-1994 and as such he properly filed the eviction application on 5-4-1994. Appellant in his evidence could not shatter the above plea of the respondent and failed to prove, as claimed by him, that the certificate of retirement is false or forged one. The requirement as laid down in subsection (1) of section 14, Sindh Rented Premises Ordinance that salaried employee due to retire within six months is competent to file eviction application that he needs rented premises for his personal use.
13. The contention of the counsel that word "own" used in subsection (2) of section 14 carries purpose and intention of word "occupation" is highly misconceived and without any substance as the said subsection provides that a landlord shall not be entitled to avail benefit of subsection (1) if he is in occupation of a building owned by him in any locality. From the reading of this paragraph it appears that the words "occupation" and "ownership" carry two different purpose and meaning.
14. Word "occupy" has been defined in Oxford Dictionary to mean, reside or be in, be tenant of, take up or fill (space, time). The word "own' has been defined in the same dictionary as belonging to one-- self, have as property, possess, acknowledge authorship, paternity or possession of.
15. Both words "occupation" and "own" have been used in subsection (2) of section 14 on purpose to make very clear the intention of the law-makers with the emphasis on occupation and not on ownership.
16. The case-law referred by the learned counsel for appellant carries no weight as the same is on different fact and legal points. In the case of Muhammad Yusuf v. Mst. Quresha Begum (PLD 1993 Kar. 502) this Court had allowed the rent application filed by tenant on the ground that the premises in dispute belong to the deceased mother of landlord and three other co-sharers who were not impleaded party in ejectment proceedings and that landlord owned another flat but had suppressed this fact. It was also held in the above case that prior to ejectment application the deceased mother of landlord had also filed case against tenant in respect of the same premises which was dismissed. The Court observed that the landlord had not come with clean hands to the Court and miserably failed to establish his personal bona fide need in respect of premises in dispute. The facts of present case are quite distinct from the reported case as respondent has admitted that he owns share in three other shops and has filed the eviction application with the consent of the other co-sharers and has not suppressed any fact from the Court. In the case of Mst. Fatima Bi v. Issa (1986 CLC 2639) this Court dismissed the appeal filed by landlady who sought eviction of tenants under section 14 of the Ordinance. The Court held: "Had widow been in actual need of a house, for her use, he would have applied for one portion thereof and not of both portions consisting of 6 rooms."
17. The facts of this case too are entirely different from the case in hand. I am afraid that the case referred to by learned counsel for appellant reported as Abdul Majid v. Mst. Naimun Nisa Begum (PLD 1981 SC 118) is of no help to him. On the contrary the same supports the case of respondents as in the cited case it is held by the Honourable Supreme Court:-- "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 landlord in any locality referred to in subsection (2).
18. On the other hand Mr. M.A. Rasheed' for respondent submits the respondent is actual landlord who rented out the premises to the appellant under the written agreement in 1973 and being a Government servant gave requisite notices to the appellant for delivery of possession of the shop in question as the respondent was due to retire and need the premises for personal use. The respondent then filed eviction application within time and produced proof of his retirement in his evidence which the other side could not rebut. Learned counsel urged that it was only personal bona fide need of the respondent that necessitated filing of rent case as after retirement he wanted to open stationary shop to earn his livelihood and there was no mala fide on his part as agitated by the appellant that respondent/landlord wanted possession of the shop for pressurising the tenant for enhancing the rent to Rs.4,000 to 5,000. In support of his contention of Mr. M.A.
19. Rasheed relied upon Syed Hassan A.I v. Muhammad Haneef (PLD 1994 SC 716). In this case it has been held that the landlord who fulfils the requirement of section 14 is not required to prove his bona fide need or prima facie need.
20. Having dealt with case-law cited by learned counsel for parties, I feel it necessary to refer more case-law on the points discussed above. The words "occupation" and "ownership" have been elaborately discussed and defined by this Court in the case of Abu Bakar Khan v. Qamruddin (PLD 1986 Karachi 353) it has been observed by this Court as follows:----- "Now if subsections (1) and (2) of section 14 are read in conjunction with each other, it would appear undoubtedly that benefit of subsection (1) will not be available to the landlord, if he is already in occupation of a building which is owned by him in any locality. Here the emphasis is on the occupation by the landlord. The landlord may own a number of tenements in the building or buildings but if all are rented out and no tenement is in occupation of the landlord then he is entitled to the benefit of summary eviction under section 14 of the Ordinance on the ground of personal need if he fulfils the requirements contemplated therein. If the landlord is already in occupation of similar accommodation in a building owned by him, then he is not entitled to the benefit under section 14 of the Ordinance on the ground of personal need. Both words 'occupation' and 'owned' have been used in subsection (2) of section 14 on purpose to make very clear the intention of the law-maker that the emphasis of requirement is on 'occupation' and not the 'ownership'. There is difference between 'ownership' and 'occupation'. A person may own a number of tenements in a building or buildings but he may not be in occupation of any one of them for the reason that they are in occupation of other tenants in spite of the fact that 'ownership' is vested in the landlord. Requirement of personal need goes with 'occupation' and not 'ownership'."
21. From plain reading of this pare. It becomes crystal clear that the benefit of subsection (1) will not be available to the landlord if he is already in occupation of building owned by him. In the present case appellant has failed to prove that the respondent is in possession or occupation of any of the other three shops mentioned by him in his written statement.
22. Reference may also be made to the case of Mohammed Aziz v. Syed Hassan Askari Zaidi (1987 CLC 450) where this Court held that:-- "Legally speaking the terms 'occupation' and 'possession' cannot be synonymous."
23. It was also held in the above authority that the plea raised by the tenant that landlord was in possession of two other shops in locality other than disputed one, would not fall within purview of section 14(2) as the written statement filed speaks of possession and not occupation as contemplated by subsection (2) of section 14 of the Ordinance and tenant nowhere alleged that the said two shops were actually in occupation of the landlord.
24. On the point of filing of eviction application by a co-sharer or co-owner a reference is made to the case of Mohammed A.I v. Mst. Hameeda Begum (1983 CLC 3237). It is held by this Court in this authority that a co-owner/co--sharer in rented premises who receives rent is fully qualified to benefit of section 14 of the Ordinance and file application for ejectment of tenant.