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First Rent Appeal No.726 of 1982, decided on 7th March, 1984.

---Ss.14 & 15--Tenancy--Change of terms in tenancy did not amount to creation of new tenancy--Such change ancillary in nature--Landlord attaining age of 60 years during continuance of such tenancy, held, could get benefit of provisions of S.14.

P L D 1983 Quetta 36 ref.

---Ss.14 to 15--Landlord attaining age of 60 years during continuance of tenancy-- Residing of landlord in a rented house not controverted- Ejectment order passed in circumstances.

S.M.Abbas for Appellant.

Sultan A. Allana for Respondent.

Date of hearing: 6th March, 1984.

This is an appeal against the judgment and order of the VIth Senior Civil Judge and Rent Controller, Karachi dated 6-5-1982 who by the said order had dismissed the rent application of the appellant.

2. The facts of the rent application under section 14 of the Sind Rented Premises Ordinance, 1979 are that the premises No.117-B, Sindhi Muslim Co-operative Housing Society Ltd., Karachi were rented out to the respondent on or about 1-5-1970. This was an oral agreement continued in favour of the respondent after when the previous tenant Mrs. H.L. Eates retired as the principal of the school i.e. the premises in question. In the said school there were 500 children getting education. The agreement was dated 1-5-1970. The appellant retired from the service as Captain in the Military on 21-6-1969. He attained the age of 60 years on 21-6-1973. It is to be noted that Mrs. H.L Eates after running the school in the name of "Brooklyn School" left for England in 1970 for good. Mrs. L.H. Eates at the time of departure wrote a letter on 21-3-1970 marked Exh.4/8 informing the appellant about her departure and requesting to accept the present respondent as his new tenant in the demised premises. The respondent also requested the appellant to accept her as his tenant vide letter dated 14-4-1970. The acceptance of the tenancy of the present respondent was in accordance with the letter EXIT.4/32 dated 20-4-1970. Subsequently on 26-5-197Q the respondent accepted the same tenancy. On 10-1-1981 the rent application was filed under section 14 of the Sind Rented Premises Ordinance, 1979 by the present appellant.

3. In the written statement it is admitted that after the departure of Mrs.Eates the school was taken over by the respondent for all purposes with the express consent and permission of the appellant on the same terms and conditions. It is also admitted that the rent now is being paid at the rate of Rs.1,000 per month by the respondent. The learned Rent Controller framed following three issues:-

(1) Whether there is fresh tenancy agreement between the parties after retirement of the applicant or after the applicant became at the age of 60 years

(2) Whether the question of bona fide has to be investigated by this Court for ejectment under section 14 of the Ordinance

4. The learned Rent Controller held that fresh tenancy was entered into by the parties and this was after' the retirement of the appellant and after he attained the age of 60 years. On this short point he dismissed the rent application.

5. Mr. S.M. Abbas Advocate argued and made submissions on behalf of the appellant and Mr. Sultan A. Allana Advocate argued and made submission on behalf of the respondent.

6. The main point is that the appellant entered into an agreement of tenancy after he attained the age of 60 years and as such he was not competent to get the benefit of section 14 of the Sind Rented Premises Ordinance, 1979. This is the short point which is involved in this appeal.

7. Mr. S. M. Abbas submitted that the agreement between the appellant and the respondent finalised on 26-5-1970 which is evident from the affidavit sworn by the appellant. Although the agreement is not a written agreement but the terms and conditions are accepted by the respondent as early as on 25-5-1970. It is in the evidence that the agreement in writing, was avoided by the respondent and it is clear from the letters and correspondence in between the parties that the tenancy was orally accepted by the respondent on the above date.

8. The learned counsel for the appellant has drawn my attention to the proviso (1) attached to section 14. The said proviso is worded 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."

The learned counsel has emphasised the wording "has rented out the building. This is simple English and the meaning thereof is the premises were for the first rented out after the age of sixty years attained by the landlord. In the instant case the meaning of the words "rented out" is not fulfilled inasmuch as the premises were originally rented out to Mrs. H.L. Eates and in 1970 to the present respondent by verbal agreement which is apparent from the record of this case. Now if that be the case, the appellant attained the age of sixty years on 21-6-1973. This does not spell out that the premises were rented out after the age of sixty years attained by the appellant. The agreement oral as it is was dated 26-5-1970 and subsequently the appellant has attained the age of sixty years. Therefore it is clear that the premises were not rented out after the stipulated date of attaining the age of sixty years by the appellant.

9. Although the appellant retired from Military service in the year 1969 but that point is not pressed and his attainment of the age of sixty years is the point in question. It has been averred that originally the rent was fixed at Rs.700 per month in the days when Mrs.H.L. Eates was the Principal of the school but subsequently it was increased to Rs.750 and ultimately it was raised to Rs.1,000 as is admitted by the respondent in her written statement. The question is whether the rent which was enhanced from time to time created a new tenancy in favour of the respondent. In my humble opinion the new tenancy is not created by the change of terms which are ancillary in nature. The learned counsel for the respondent has stressed and emphasised that a new tenancy is created and as such the appellant is barred to agitate the rent application under section 14 of the Sind Rented Premises Ordinance, 1979. He has referred to an authority reported in P L D 1983 Quetta 36. It is observed in the said authority that "landlord is entitled to claim anything in excess of fair rent. In the present case the -parties mutually agreed to increase rent and thus the cause of action accrued to the respondent, no more subsisted." That was a case of fixation of fair rent and since the parties agreed to a particular rent the cause of action did not subsist. The affidavit filed by the respondent in evidence shows that the appellant accepted her as his tenant on monthly rent of Rs.700 as far back as on 20-4-1970 and that the rent was gradually increased from Rs.700 to Rs.1,000. This may also be earlier than the year 1970.

10. There is a continuance of tenancy from 1970 in favour of the respondent. The appellant has placed before this Court his contention that he is residing in a rented house and this point is not controverted. He wants to shift to the present premises in case the same are vacated by the respondent. There are no other point agitated in this appeal and I am inclined to accept the appeal. Accordingly I order that the said premises may be vacated by the respondent within a period of four months and peaceful possession thereof be handed over to the appellant /landlord. In the circumstances there will be no order as to costs.

M. A. K. Appeal accepted.

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