' MUHAMMAD BASHIR JEHANGIRI, ACTG. C.J.---This appeal with the leave of the Court against the judgment dated 20-10-1999 of the High Court of Sindh, at Karachi, in R.F.A. No,317 of 1994 filed by the appellant/landlady was dismissed and the order of non-suiting her by the Rent Controller was upheld.
2. Brief factual background of this appeal is that the appellant filed an application under section 14 of the Sindh Rented Premises Ordinance (XVII of 1979) (hereinafter referred to as "The (Ordinance") for eviction of the respondent-tenant from Shop No,2 on Plot No,160 of Block 18, F.B. Area, Karachi, which was in occupation of the latter. After the death of her husband, the appellant served a notice dated 2-12-1989 on the respondent as required under section 14 of the Ordinance calling upon him to vacate the shop in dispute as it was required for her personal use and occupation. On the refusal of the respondent, the appellant filed rent application before the learned Rent Controller which was resisted by the respondent, denying the personal bona fide requirement of the appellant qua the shop in dispute on the ground that she was aged more than 80 years and thus was not in a position to carry on any business; that she owned several properties and shops and, therefore, she was not in the need of the shop in question either for carrying on. Business herself or for any-of her dependents.
3. The parties went to trial on the following issues:--
(1) Whether applicant is entitled for the benefit of section 14 of the Sindh Rented Premises Ordinance, 1979?
(2) Whether the applicant requires the premises in question of her personal bona fide use?
(3) What should the order be?
4. Issues Nos.1 and 2 were answered in the negative while on Issue No,3, the application for ejectment filed by the appellant, was dismissed. The learned High Court also dismissed the appeal and upheld the finding of the Rent Controller. The contention of the learned counsel for the appellant before the learned High Court with reference to the law laid down in the precedent of Syeda Hyderi Khatoon v. Aftab Ahmad and 8 others 1986 CLC 1534, that it was not necessary for the appellant to carry on business herself and that she could get the business carried anybody else after ejectment of the respondent was repelled by the learned Judge in Chambers on the reasoning that it was never the case of the appellant that she would carry on business through somebody else and further that all his five sons were carrying on business separately and would have no time to devote to the business of their mother. It was further held that in a rent case filed under section 14 of the Ordinance by a widow for eviction of the tenant on the ground that premises in dispute was required for her personal need, the question of bona fide was a sine qua non for the ejectment order and in this context, reliance was, inter alia, placed on Mst. Najma Ashraf v. Mst. Noor Jehan 1994 SCM R 913.
5. Leave to appeal was granted to consider whether, in the circumstances of the case, the appellant could claim the benefit of section 14 of the Ordinance where nine other shops were rented out by her and she being above 80 years of age was residing with her one of the four sons.
6. Syed Muhammad Zaki, learned Advocate Supreme Court representing the appellant/landlady contended that the learned Single Judge has misconstrued the provisions of section 14 of the Ordinance by laying unnecessary emphasis on the appellant's old-age as also the bona fide requirement of the premises by her. According to him a bare reading of section 14(1) of the Ordinance, would reveal that the only requirement for claiming the benefit of section 14(1) ibid was that "the landlady of the building who was a widow, or a minor whose both parents are dead or a salaried employee due to retire within the next six months or has retired or a person who is due to attain the age of sixty years within the next six months or has attained the age of sixty years, may by notice in writing, inform the tenant that he or she needs the building for personal use and require him to deliver vacant possession of the building...." The learned counsel submitted that the Rent Controller and also the learned Single Judge of the High Court had without any justification invoked section 15 of the Act. The provisions of succeeding section 15 of the Act, provided, inter alia, that the landlord required the premises in good faith for his own occupation or use or for the occupation or use of his spouse or any of his children which phraseology was omitted in section 14 of the Ordinance. The learned counsel in support of his submissions invited our attention to the ratio deducible from the case of Syed Hasan Askari Rizvi v. Muhammad Aziz PLD 1989 SC 1.
7. Mr. N.C. Motiani, learned Advocate-on-Record for the respondent, referred to the precedents of this Court: (i) Syed Muhammad Haider Zaidi and others v. Abdul Hafeez and others 1991 SCM R 1699 and the case of Mst. Najma Ashraf (supra) to contend that sections 14 and 15 ibid though cater for in two separate causes of action, filing of ejectment application under one would not debar the landlord from seeking benefit from the other and that the intention of the parties was to contest eviction under sections 14 and 15 together even in this case like that in Mst. Najma Ashraf's case (supra).
8. Before adverting to the merits of the above appeal, it may be appropriate at this juncture to refer to the provisions of sections 14 and 15(1)(2) and (vii), which read as under:-- "14. Delivery of vacant possession.----(1) Notwithstanding anything contained in this Ordinance or any other law for the time being in force, the landlord of a building who is a widow, or a minor whose both parents are dead or a salaried employee due to retire within the next six months or has retired or a person who is due to attain the age of sixty years within the next six months or has attained the age of sixty years, may, by notice in writing inform the tenant that he or she needs the building for personal use and requires him to deliver vacant possession of the building within such time as may be specified in the notice, not being earlier than two months from the receipt thereof: ' Provided that noting 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 (1) if he is in occupation of a building owned by him in any locality.
(3) Where the tenant has failed to deliver the possession of the building under subsection (1), the Controller shall, on application by the landlord in this behalf, order eviction of the tenant from the building in a summary manner, by using such force as may be necessary."
Section 151. (2) and (vii) of the Ordinance:-- "15. Application to Controller.--(l) Where a landlord seeks to evict the tenant otherwise than in accordance with section 14, he shall make application to the Controller. (Underlining is provided for emphasis).
(2) The Controller shall, make an order directing the tenant to put the landlord in possession of the premises within such period as may be specified in the order, if he is satisfied that:--
(vii) the landlord requires the premises in good faith for his own occupation or use or for the occupation or use of his spouse or any of his children." Again the underlining is provided for emphasis).
9. Almost similar proposition had come up for address before this Court in the case of Syed Muhammad Haider Zaidi (supra) wherein it was held as under:-- ' "It may be pointed out that section 14 commences with the non obstente clause by providing that notwithstanding anything contained in this Ordinance or any other law for the time being in force, the landlord of a building who is--
(i) widow; or
(ii) minor, whose both parents are dead; or
(iii) a salaried employee due to retire within the next six months or has retired; or
(iv) a person who is due to attain the age of sixty years within next six months or has attained the age of sixty years; ' may by notice in writing inform the tenant that he or she needs the building for personal use and require him to deliver the vacant possession of the building within the period specified in the notice not being earlier than two months from the receipt thereof. It may also be pointed out that the proviso to subsection (1) of section 14 provides that the above subsection shall not be applicable 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. It. May further be pointed out that subsection (2) of section 14 further provides an embargo on the right of the aforesaid specified persons to the effect that they shall not be entitled to avail of the benefit of subsection (1) if he or she is in occupation of a building owned by him in any locality. It may be observed that subject to the above proviso to subsection (1) of section 14 and the provision contained in subsection (2) in case the tenant fails to deliver the possession of the building after the receipt of the notice under subsection (1) of section 14, the Controller under subsection (3) is required to order eviction of the tenant from the building in a summary manner by using such force as may be necessary."
10. It was also pointed out in the case of Syed Muhammad Haider Zahid SUPRA that subsection (1) of section 15 ibid provides the procedure for seeking ejectment of a tenant otherwise than in accordance with section 14 ibid and further that subsection (2) of section 15 provides various grounds on which a landlord can seek ejectment of a tenant, which include the ground of personal requirement contained in clause (vii) of subsection (2) of section 15 which provides that the landlord required the premises in good faith for his own occupation, or use or for the occupation or use of his spouse or any of his children. (Underlining is provided again for emphasis).
11. It is, however, difficult to subscribe to the view of the learned Advocate-on-Record for the respondent that the ratio in the case of Najma Ashraf (supra) was apt to the facts of the present case. In the case of Najma Ashraf (supra), the evidence brought on the record was held to have not been properly assessed and further that it was not adequate to justify the order of eviction under section 14 of the said Ordinance because the appellant therein who was in occupation of building owned by her in another locality which was unsuitable for her need and, therefore, the findings of the two Courts below were set aside and the case was remanded to the learned Rent Controller for adding issue to the effect that whether the landlady therein was entitled to eviction under section 15 of the Ordinance and also for deciding the case afresh after giving opportunity to both the parties to produce further evidence, if they so desired.
12. We are, therefore, inclined to hold that an application under section 14 is maintainable by the persons specified therein (or on their behalf), who should have proprietary interest in the property, either as the sole owner, or one of the. Co-owners. While construing section 14 of the Ordinance we hold that liberal construction should be placed thereon as to advance the object for which, it has been enacted rather to defeat it, but at the same the benefit of the above section shall not be extended to the persons except those who have been specified therein.
13. In the instant case, there is not an iota of evidence to show that as envisaged by section 14(2) of the Ordinance, the appellant/landlady owns any building in any locality except the one which was in dispute. It was pointed out by the learned Advocate-on-Record for the respondent that the whole building on the disputed plot has been transferred to the appellant by her sons and daughters and in this context had referred to an acknowledgement deed placed on the record which was executed on 14-1-1990. Conceding for a while that it was so, still there is nothing on the record to suggest that any of the premises of the building is vacant. It appears that these premises are in occupation of the tenants and not a single unit is available for the occupation of the landlady.
14. Having dealt with the above legal aspect of the case, we may revert to the concurrent findings of the two Courts that the appellant being advanced in age and not capable of carrying on any business was not entitled to take the possession of the premises under section 14 of the Ordinance.
There is nothing in section 14 that requires the landlord/landlady to carry on the business carried on through any of his agent or son or daughter. The objection that the appellant in this case was about 80 years old and incapacitated is, thus, not relevant. There is no evidence on the record to point out any incapacitation of the appellant to carry on the business. The findings of the learned Rent Controller and the learned Single Judge to invoke the provisions of section 15 to import into section 14 the preconditions of the bona fide requirement are not warranted by any canon of interpretation of statutes.
15. We, therefore, accept the appeal, set aside the findings of the learned Rent Controller duly affirmed by the learned Single Judge of the High Court of Sindh and the respondent/tenant is directed to put the appellant/landlady in possession of the disputed premises within a period of the one year from today subject to regular payment of rent, failing which the appellant/landlady would be entitled to take over the possession of the premises without recourse to the regular execution proceedings and with the aid of the police, if need be. There would be no order as to costs.