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First Rent Appeal No. 115 of 1933, decided on 2nd June, 1983.
‑‑‑ S. 14(1)‑Eviction of tenant‑Service of notice‑Validity‑Giving of two months' notice for vacation of premises necessary‑Notice given earlier than two months, held, cannot be called a valid notice.
---‑‑ S. 14(1) ‑ Service of notice‑Infirmity‑Notice to tenant not in accordance with statutory requirement, held, suffers from infirmity disentitling landlord to seek eviction.‑[Notice].
P L D 1981 Kara. 794 ; 1982 C L C 318 and P L D 1982 Kar. 406 ref. 1983 SCMR191fol.
------S. 14(1)‑Service of notice‑Objection as to its validity‑‑Held, failure to take objection before Rent Controller allows cause of action to mature‑Objection taken in time defect could be rectified by landlord without any loss of time.
P L D 1981 Kar. 794 distinguished.
‑‑ S. 14(1)‑Validity of notice‑Objection as to validity of notice taken from very start‑Incumbent upon landlord to take note of legal situation and rectify mistake in time‑Held, landlord has to suffer, if he has been responsible for infirmity in notice.
‑‑ S. 14(1)‑‑Condonation of lapses‑Courts, held, can condone lapses on part of one party only when other party has because of its inaction allowed other party to continue proceedings‑Tenant taking objection of validity of notice from very start; cannot be held responsible for time ensued in disposal of eviction application and appeal‑Landlord to bear consequences of his own infirm notice and inaction in not withdrawing original rent application and instituting a fresh application after giving notice according to law.
M. Shabbir Ghori for Appellant.
Muhammad Abdul Qadir for Respondent.
Date of hearing : 29th May, 1983.
This appeal is against the Order of II Senior Civil Judge and Rent Controller, Karachi, dated 7‑12‑1982 whereby the application of the Appellant against the respondent for eviction was dismissed on the ground that he had given the valid notice under section 14(1) of the Sind Rented Premises Ordinance, 1979.
The premises in question are Flat No. 1 on Plot No. 327‑C, Central Commercial Area, Block No. 2, PECHS, Karachi. It is an admitted position that appellant is the landlord of the respondent in respect of the said flat. The appellant is the retired Government Servant and was retired in November, 1974 while tenancy in respect of premises had been started in November, 1973. On 25‑1‑1982 a notice under section 14(1) was issued by the appellant to the respondent calling upon him to deliver vacant possession of the premises within 2 months. The application for ejectment under section 14 was filed on 6‑4‑1982 and it was dismissed on the ground of validity of notice on.7‑12‑1982. In order to appreciate the correct position. I reproduce the provisions of section 14(1) of Sind Rented Premises Ordinance, 1979 :‑---------
"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 require 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."
I also reproduce subsection (3) of section 14 :‑----------
"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."
It appears from the reading of the above two subsections of section 14 that giving of two months notice is necessary by the landlord and if the landlord gives a notice of earlier than two months then the same cannot be called a valid notice. Then again it is apparent from reading of subsection ‑(3) that only if the tenant has failed to deliver possession of the building under subsection (1) then the Controller can be moved for eviction of the tenant in a summary manner.
Mr. Shabbir Ghori the learned counsel for the appellant has, however, submitted that since he had filed the ejectment application after 68 days of the notice, therefore, the same was a substantial compliance with the provision of law. He has relied upon P L D 1981 Kar. 794 (797) where Mr. Justice Ajmal Mian has observed as under :‑---
"It is necessary to state that the above section contemplates service of two months' notice on a tenant by a person falling within the category mentioned therein, namely, widow, orphan or a person, who has retired from the service, or has attained the age of 60 years. In the instant case the notice was served on or about 30‑1‑1980, whereas the ejectment case was filed on 2‑3‑1980. i.e. much before the expiry of two months. Furthermore, in the notice the appellants were called upon to vacate forthwith instead of on the expiry of two months. However, in the written statement the appellants had not raised any specific plea to the effect that a valid notice under section 14 of the Ordinance was not served on them before the filing of rent application. It is also clear that section 14 of the Ordinance seems to provide an expeditious summary remedy to a widow/orphan, to a person who has retired from the service or who has attained the age of 60 years. If technicalities are to be strictly enforced, the very object of the above provision will be frustrated. I am inclined to hold that the Court is to see, whether there has been substantial compliance of the above section. The spirit of section 14, seems to be that a tenant is to be provided 2 months' period to ordering of ejectment summarily under the above provision."
Another observation of Hon'ble Judge in the above case appearing at page 798 is reproduced below :‑---
"Furthermore, since the appellant did not raise any objection about the validity of the notice before the learned Rent. Controller, it would not be just and proper to non‑suit the respondent at the appellate stage after more than one year. In my view technical objections like validity of a statutory notice are to be raised at the earliest. So that defect if any, may be rectified. But a party cannot be permitted to raise such a plea at the appellate stage, particularly, when no material prejudice has been caused to him."
Before proceeding further in this case I may point out that in the present case before me the respondent had taken the objection from very beginning in ground that the notice had required eviction within two section 14(1) clearly required that in the notice requiring delivery of vacant possession of the building the time specified should not be earlier than two months from the receipt thereof.
Mr. Muhammad Abdul Qadir the learned counsel for the appellant has drawn my attention to 1982 C L C 318 where Mr. Justice Naimuddin of this Court, while construing a notice under section 14 requiring delivery of possession within two months has held that the same was not according to law and consequently invalid. He upheld the contention that section 14 required to give a notice of minimum of two months to vacate the premises.
However, the view of Mr. Justice Ajmal Mian was followed by Mr. Justice Z. C. Valiani in P L D 142 Kar. 406 (414) and also by Mr. Justice B. G. N. Kazi in an unreported case in F. R. A. 735/82, decided on 8‑3‑,983 where paragraph 8 of the same judgment is relevant.
The case decided by P L D 1981 Kar. 794 was taken to the Supreme Court by the tenants and the appeal against the same was dismissed. But the decision of the appeal in the Supreme Court was mainly based on the ground that since the appellants in that case had failed to take the technical objection in respect of the validity of the notice under section 14(1) of Sind Rented Premises Ordinance, 1979, therefore, because of their inaction they had allowed the cause of action to mature on the date on which the Rent Controller passed the order of eviction which was beyond two months. In these circumstances it was held by the Supreme Court that no exception could be taken to the validity of the notice particularly when no prejudice was caused to the appellant. The same judgment is reported in 1983 S C M R 191 (192). There are however, important observations made by the Supreme Court in that case which I herewith reproduce;
"It is true that the period prescribed is two months and the notices suffered from this infirmity, but if this objection had been taken before the Rent Controller, the defect would have been rectified by the respondent and the delay of an order would not have ensued. The prescribed period is for the benefit of the tenant and is intended to allow him sufficient time to vacate the premises and further he cannot be ejected summarily under section 14 of the said Ordinance without the efflux of time. It is the statutory requirement, but in the circumstances in the case as the appellants has failed to raise this objection at the earlier stage and allowed a year to pass, the High Court was correct in holding that there was no substance in this legal objection which was imminently against the spirit of the provision which allowed summary relief to the widow."
It is, therefore, apparent that the Supreme Court has held that a notice under section 14 (1) which requires a tenant to deliver vacant possession within two months suffers from infirmity if it is not in accordance with the statutory requirement. The judgment of the Supreme Court has upheld the decision in P L D 1981 Kar. 794 on the ground that the failure of the tenant to take objection to the validity of notice had allowed the cause of action to mature and that if the objection had been taken in time the defect could be rectified by the landlord without any loss of time.
The present case is, therefore, distinguishable from the judgment in P L D 1981 Kar. 794 which was upheld in 1983 S 'C M R 191 on the point of failure to take objection. to validity notice in the trial Court. The Supreme Court has not expressed itself on the point that enforcement of technicalities are bound to frustrate every object of provision of section 14.
As in the present case respondent had taken objection 'to the validity of the notice from the very start and thus the appellant knew from the very beginning that there is infirmity in the notice issued by him. Even the Supreme Court has called such a notice to be infirmed. It was, therefore, incumbent upon the appellant to take note of the legal situation and to rectify in time the mistake which he had made. The respondents had not been responsible for any inaction of lack of objection on their part and therefore, they cannot be punished and the appellant has to suffer if he has been responsible for infirmity in the notice.
Relying upon the observations of the Supreme Court in the above reported case that notice under section 14 is a statutory requirement and that a notice which does not provide a period of two months for eviction suffers from infirmity I hold that the notice issued by the appellants calling upon the respondent to give vacant possession within two months suffered fro infirmity. And since the respondent had taken this objection from the very start they cannot be held responsible for the time which has ensued in the disposal of the application of eviction and the present appeal. The equity is not against the respondents in this case and the appellants should bear the consequences of their own infirm notice and their own inaction in not with drawing the original rent application and instituting a fresh application for ejectment after giving a required notice in accordance with law. The Courts can condone the lapses on the part of one party only when the other party has, because of its inaction, allowed the other party to continue the proceedings. There is no such equity involved in the present case before me, and I, therefore, dismiss this application.
M. Y. M Appeal dismissed.
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