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First Rent Appeal No. 192 of 1982, decided on 3rd October, 1982.

(a) Sind Rented Premises Ordinance (XVII of 1979)-

-- Ss. 2(h), 14 & 21-Ejectment application--Maintainability-Rented premises being used for running Cafe- Cafe', held, cannot be equated with a hotel' and as such not excluded from definition of premises Ejectment application maintainable.

(b) Sind Rented Premises Ordinance (XVII of 1979)-

Ss. 14, 20 & 21-Application of Civil Procedure Code (V of 1908) to proceedings under Sind Rented Premises Ordinance, 1979-Ejectment proceedings-Technical objection-, held, cannot be allowed to defeat claim of landlord.

The Code of Civil Procedure has not been made applicable to proceeding under Sind Rented Premises Ordinance, 1979 except to the extent mentioned to section 20 thereof. Although the Rent Controller is invested with the powers of a civil Court but only in respect of matters stated in section 20. However, other provisions of the C. P. C. may also be resorted to by a Rent Controller so far as necessary for example Order XXII and Order XXXII, C. P. C. Non compliance with the procedure laid down by the C. P. .C. in respect of drafting of plaints etc. are not strictly applicable to the drafting of rent applications. If the parties have been properly described in the title of "the plaint so that there is no doubt as to the identity of the person by whom or against whom proceeding are taken under the Rent Ordinance, then no objection shall be allowed to defeat an action under the Ordinance on ground that the persons have been impleaded jointly and not, separately by assigning them Nos. I and 2 etc.

(c) Sind Rented Premises Ordinance (XVII of 1979)-

-- Ss. 14, 15 & 21-Ejectment-Personal need and personal require ment of premises in good faith for own occupation or use-Distinction in language of Ss. 14 & 15 immaterial --- Qualification attached with word requires' in S. 15 done away with in case of need' referred to in S. 14-Landlord entitled to benefit of S. 14 not subjected to rigors which other landlords who apply for ejectment under S. 15 have to undergo-Landlord under S. 14, held, not obliged to prove some thing more than what another landlord is supposed to prove under S. 15.

(d) Sind Rented Premises Ordinance (XVII of 1979)--

Ss. 14 & 21-Ejectment -- Personal need-Landlady producing her husband in evidence to support her plea that shop in dispute required for her personal need, she has no other shop and that she is over 60 years of age-Landlady residing at Lahore, held, can come to K to start business in shop in question if it q more lucrative Ejectment orders passed by Rent Controller upheld to circumstances.

Ishtiaq All for Petitioner No. 1.

S. Abbas Zia for Petitioner No. 2.

Nasim Farooqui and S. Inayat Ali for Respondent.

Date of hearing: 23rd September, 1982. .

This is an appeal under section 21 of the Sind Rented Premises Ordi nance, 1979, from the judgment of learned IVth Senior Civil Judge and Rent Controller, Karachi dated 20-2-1982, whereby the learned Rent Controller had accepted the ejectment application of the respondent in respect of premises in dispute and directed 'he applicant to vacate the remakes within 15 days and handover its possession to the respondent.

2. The premises in question is a shop bearing No. 13 Anarkali Market on Plot No. D/J/8, Commercial Area, block No. 5, Nazimabad. This shop was rented out by the respondent to the two appellants at Rs. 550, per month plus 50 per month as water charges. The respondent alleged that she had attained the age of 60 years on 13-11-1980, that she needs the shop for her own use and that she does not own nor is in occupation of any other building anywhere in Pakistan. She had, therefore, prayed in her ejectment application under section 14 of the Sind Rented Premises Ordinance, 1979 (hereinafter referred as said Ordinance) that the appellants may be evicted from the shop in question and its possession may be banded over to her. In her application the respondent also stated that the statutory notice as required by section 14 of the said Ordinance was also served up on the appellants on 7th April, 1981.

3. In their written statement the appellants admitted that they are running a Cafe in Shops Nos. 12 and 13 and not only in Shop No. 13 of Anarkali Market. It is alleged that respondent has many other properties which are in her name and in the name of her husband. It is also alleged that the respondent is permanently residing at Lahore, therefore, she has no need of the shop. Service of the notice is not denied. It is also alleged that under section 2(h) of the said Ordinance settemmt ejectment application is not maintainable.

4. After recording evidence of the parties the learned Rent Controller allowed the ejectment application and directed the appellants to band over possession of the shop to the respondent within 15 days.

5. Mr. Isbtiaque Ali, learned counsel for the appellant ;gas challenged the impugned judgment on several grounds. It has been urged that the premises in question is a hotel and, therefore, it is not fall within the purview of the said Ordinance according to section 2 h) thereof. This section defines the words "premises" as a building or land let on rent, but does not include "hotel". It is, therefore, argued that no ejectment application under section 21 of the Ordinance can be maintained in respect of the building in which the appellants are running a hotel.

6. In their written statement respondent do not say that they are runn ing a hotel in the building in question. In Para. No. 1 of the written statement they state as under,-

"that the contents of para. No. 1 of the application' are not disputed but it is added that Cafe Anarkali is run in. Shops Nos. 12 and 13 and not only in Shop ado, 13."

The question, therefore, arises whether a' "Cafe" can be equated with a "hatol'1,. Learned Rent Controller has referred to dictionary meaning of Cafe and Hotel and concluded other a Cafe cannot be equated with hotel. According to dictionary meaning "Cafe" is a place where meals and drinks are served to public generally. It is also popularly used to mean a restaurant or a house for refreshment. So far as the word "hotel" is concerned accord ing to dictionary meaning, this means a house for accommodation for travellers etc. No exception can be taken to the finding of the learned Rent Controller that Cafe cannot be equated with hotel and thus is no excluded from definition of 'premises' under section 2(h) of the said Ordinance. The ejectment application, therefore, cannot be said to be not maintainable as argued by the learned counsel for the appellant.

7. The next point urged in support of the appeal by Mr. Ishtiaq Ali, is that notice under section 14 of the said Ordinance is not proper inasmuch as it has addressed jointly to both the respondent as "K. P. Moido and M. Muhammad". According to him two separate notices should have been issued to the two appellants in their individual names. No authority has been cited by the learned counsel in support of this argument. The purpose of notice under section 14 of the said Ordinance is to inform the tenants that the landlord/ landlady has attained the age of 60 years and that she needs the building for personal use. In the present case the appellants had jointly taken the premises on rent from-the respondent. They are in joint possession of the shop and they are linty-running business in the said shop. Hence there was no illegality o4 irregularity on the part of the respondent in addressing the notice jointly to both the appellants. The claim of the respondent cannot be disavowed on such technicalities as have been pointed out by the learned counsel for the appellant. Similarly it has been argued that in the title of the ejectment application the appellants have not been described separately but have been made opponents jointly by describing them as; "K. P. Moido and Muhammad, Muslim, adults, doing business as Cafe Anarkali in Shop No. 13, Plot No. D/1/B Commercial Area, Nazimabad V, Karachi". This is also a technical objection which cannot be allowed to defeat the claim of the land lady. The appellants have not been prejudiced by the above description of their names and residence etc. The Code of Civil Procedure has not been made applicable to proceeding under the said Ordinance except to the extent mentioned in section 20 thereof. Although the Rent Controller is invested with the powers of a civil Courts but only in respect of matters stated in section 20. However, other provisions of the C. P. C. may also be restored to by a Rent Controller so far as necessary for example Order XXII, and Order XXXII of C. P. C. Non-compliance with the procedure laid down by the C. P. C. in respect of drafting of plaints etc. are not strictly applicable to the drafting of rent applications. If the parties have been properly described in the title of the plaint so that there is no doubt as to the identity of the persons by whom or against whom proceedings are taken under the said Ordinance, then no objection shall be allowed to defeat and action under the said Ordinance on the ground that the persons have been impleaded jointly and not separately by assigning them Nos. 1, 2 etc. This objection is also not sustainable.

8. The next point urged by the learned counsel for the appellants is that the ejectment application bas been filed on behalf of landlady Noon Jehan by her husband Aziz Ahmed as her attorney, but there is no properly constituted power of attorney authorising the said Aziz Ahmed to file, verify and present petitions, plaints, etc. on her behalf. Bare perusal of the photostat copy of the power of attorney would show that the objection of the learned counsel is absolutely without ford. The relevant portion of the power of attorney is reproduced hereunder to show that all necessary powers to file ejectment application were given to the said attorney. The landlady has by the said power of attorney autborised her husband Aziz Ahmed to-

"file appeal, review and revision seek any other remedy provided by law before such Officers and to file suits or other proceedings concern ing my Urban Property in any Court Civil or Revenue or Criminal or any other Court or before any Revenue Officer or Registrar or Sub-Registrar or other official as well as in appellate Courts and High Courts of East Pakistan and the Supreme Court of Pakistan."

This power has been given to the Attorney in respect of all the property which the landlady own or which she might own in future. The date of this power of attorney is 5th September, 1956. It is alleged that the premises in question were not existing on the date when the power of attorney was executed and as such it cannot be used by the attorney for the purpose of the present ejectment application. The argument has no force, because in Para. No. 1 of power of attorney the landlady has clearly stated that she is authorising her husband to act as her attorney in respect of her "property now belonging . to or which may thereafter belong to me". It is clear from this unambiguous language of the power of attorney that it fully authorises the attorney to act on behalf of his wife in respect of all the properties which she owned on the date of the power of attorney or which may come to belong to her in future. No exception therefore can be taken to the legality of the ejectment application having been filed by S. A. Aziz as attorney of his wife, namely. Noor Jehan, the landlady.

9. The last point urged in support of the appeal is that the respondent who is permanently residing at Lahore cannot be said to need the shop in question for her personal use. A distinction has also been sought to be drawn between the word "need" as used in section 14 and the word "require" as used in section 15 of the said Ordinance. The distinction in my view is quite immaterial. In section 14 it has been provided that the landlord o landlady "needs the building for personal use etc". whereas the section 151 " the words used are "the landlord requires the premises in good faith for his, own occupation or use". The distinction in the languages used in the two sections referred to by the learned counsel for the appellant on the contrary show that the qualification which is attached with the word "requires in section 15, has been done away with in the case of "need" referred to in section 14. This would show that a landlord/landlady who is entitled to the benefit of section 14, has not been subjected to the rigors which other landlords who apply for ejectment under section 15 of the said order obeisance, have to undergo. It is, therefore, not necessary to refer to the dictionary meaning of the words "need" and "requires" or to hold that a landlord under section 14 is obliged to prove something more than what another landlord is supposed to prove under section 15 of the said Ordinance.

10. In support of her personal need, the landlady has produced he husband Aziz Ahmed in evidence. He had deposed that the respondent herself needs the shop in question for her personal use. He has also stated that she has no other property, that is, no other shop and that she is over 6 years of age. Although he admits in cross-examination that his wife residing at Lahore for the present, but it does not mean that sheens come to Karachi to start business in the shop, if it is more lucrative than it at Lahore,

11. For the above reason I hold that the ejectment application was rightly allowed by the learned Rent Controller. Consequently the appeal dismissed the appellant is however granted two months time to vacate the premises.

M. Y. H. Appeal dismissed.

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