' This appeal is directed against an order of ejectment, dated 26-3-1999 passed by the 3rd Senior Civil Judge and Rent Controller, Karachi East. The facts, in brief, appear to be that the respondent who was a Government servant, had let out a shop constructed on Plot No,156/17, to the appellant on 1-6-1974. The respondent apparently obtained premature retirement from Government service in 1981 and attained the age of 60 years on 8-1-1996. After serving the statutory notice to vacate on 28-3-1996, he proceeded to file an application for ejectment under section 14 of the Sindh Rented Premises Ordinance, 1979. The appellant filed a written statement alleging that the respondent owned several other properties, which were let out to different persons after his retirement including another shop in the same building which was at one time let out to one Akbar Hassan, but was currently in occupation of the respondent and, therefore, the application under section 14 of the Sindh Rented Premises Ordinance, 1979, was not maintainable. The parties filed their respective affidavits-in-evidence and were duly cross-examined. The learned Rent Controller came to the conclusion that the respondent did not own any other shop except the demised shop and, therefore, directed ejectment of the appellant.
2. Mr. Ali Ahmad Tariq, learned counsel for the appellant has primarily raised two contentions in support of this appeal:--
(1) That the learned Rent Controller failed to take into consideration the fact that the respondent had let out certain commercial properties after his retirement though before attaining the age of 60 years and having become disentitled to the benefit of section 14(1) in terms of the proviso to the aforesaid provisions he could not seek the same again upon acquiring the age of 60 years.
(2) It was established from evidence that "shop" occupied by Akbar Hassan had been vacated and the respondent was in possession of the same, therefore, the respondent was not entitled to avail of the benefit of sub-section (1) in view of subsection (2) of section 14 of the Ordinance.
3. To appreciate the contention of the leaked counsel it may be appropriate to recall that under section 14(1) certain categories of persons including retired salaried employed and those having attained the age of 60 years are entitled to seek ejectment of tenants from building required for their personal use after serving two months notice to their tenants thereof, through a summary procedure. This privilege is subject to the terms of the proviso to sub,ection (1) and subsection (2) which read as under:-- "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 (i) if he is in occupation of a building owned by him in any locality."
4. Mr. Ali Ahmad Tariq in the first place argued that the proviso is designed to ensure that a landlord, does not take unfair advantage of the privilege conferred by law, and therefore, if he rents out a building after having retired or attained the age of 60 years, he should not be allowed to take advantage of the privilege which was conferred keeping in view his special circumstances. He proceeded to contend, therefore, that when retirement and attainment of the age of 60 years accrued on different dates it would be contrary to the spirit of the law to allow a landlord who had rented out the premises after retirement to seek the aid of summary procedure after having attained the age of 60 years. The argument is indeed ingenious, but as rightly pointed out by Raja Sikander Khan Yasir it does not apply to the fact of the present case because the demised premises had been let out to the appellant in 1974 i,e, before and not after the retirement of the respondent in 1981. While Mr. Tariq was in no position to deny the aforesaid fact he attempted to meet this objection by arguing that the respondent had. Let out other properties after his retirement and under the law he ceases to be entitled to the privilege of section 14(1) if he lets out any building owned by him in any locality or is in occupation of the same.
4. I regret I am unable to agree. There is marked difference in the terminology employed in the proviso to subsection (1) and subsection (2) quoted above. Indeed under subsection (2) a landlord cannot avail of the benefit of subsection (1) if he is in occupation of a building (which means any building) owned by him in any locality. Nevertheless in the proviso to subsection (c) the Legislature has used the word "the building instead of a building which could only mean the building which is the subject-matter of the dispute. This distinction has been succinctly brought out (if I may say so with respect), in the case of Amin Akhtar Jami v. Jehangir Alam 1993 M LD 1530, by Wajihuddin Ahmed, J. (as his Lordship then was) in the following words:-- "The distinction lies in the deliberate use of articles 'a' and 'the' in such provisions. Under the proviso in question a landlord becomes disqualified to seek eviction from 'the' building or 'the' portion, if he has let out 'the' same building or 'the' same portion thereof, subsequent to his becoming entitled under the enabling part of section 14(1); but the disqualification would be limited to evict from the same building or portion so let out and may not extend to another building or portion not so let out.
On the other hand, section 14(2) is broader and the prohibition ensues if the landlord is in occupation of any building whatever (i,e, 'a building')
' Respectfully following the above I find no substance in the contention raised.
5. As regards the second point it appears to be the admitted factual position that between the demised shop and the one in occupation of Muzammil Ahmad Siddiqui, there is a gallery/passage, where electricity meters are installed and at one time it was let out to one Akbar Hassan who subsequently vacated it. Mr. Ali Ahmad Tariq argued that this passage was admittedly being used for commercial purpose and was presently in possession of the respondent, therefore, the respondent could not claim that he was not in possession of any building owned by him in any locality. He augmented his submission by arguing that for the purposes of subsection (2) of section 14 the suitability of the premises for the use of the landlord was irrelevant and relied upon a judgment of this Court in Mrs. Najma Ashraf v. Mst. Noor Jehan 1993 M LD 866 and of the Honourable Supreme Court in Abu Bakar v. Abdul Haleem PLD 1991 SC 302.
6. Indeed the learned counsel is correct to the extent that if a landlord is found to be in occupation of a building owned by him, he cannot invoke the provision of section 14 of the Ordinance, merely because the building in question is not suitable for his needs. Nevertheless, in the very case of Abu Bakar v. Abdul Haleem; Ajmal Mian, J. (as his Lordship then was) was pleased to observe:- "Keeping in view the above factum, we are of the view that a flat which may be used for residential or commercial purpose and which may be part of the building where the suit shop may be situated cannot be equated with a shop nor it can be equated with a factory which may be situated 8 or 10 miles away from the suit shop. We are inclined to hold that in order to press into service the bar contained in the above proviso to subsection (1) and subsection (2) of section 14 of the Ordinance, the person specified in above subsection (1) must have either rented out a building or must be in occupation of a building of the nature or the character of which he has sought the ejectment under above section 14. (underlining mine)"
7. From the above dictum it is clear that though suitability may be irrelevant the property from which ejectment is sought must at least bear the same nature or character which a landlord already occupies before being disqualified from availing the privilege of section 14. The mere fact that he is in possession of a flat which could be used for commercial purposes would not disentitle him from seeking eviction of a tenant from a shop. Respectfully applying the same principle I am of the view that the mere fact that a passage was for some time used as a commercial premises would not alter its character and such fact would not per se exclude the application of section 14.
8. I, therefore, find no substance in this appeal and would dismiss the same in limine.
9. Nevertheless, since the appellant is carrying on business in the demised premises 9 months' time from today is granted to him with the consent of Mr. Raja Sikandar Khan Yasir, to vacate the same subject to regular payment of rent. In the event of default in such payment on the expiry of 9 months (whichever is earlier) writ of possession may issue without notice.