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First Rent Appeal No. 83 of 1985, decided on 2nd September, 1986.
‑‑‑S. 14‑‑Ejectment‑‑Relationship of landlord and tenant, proof of‑‑While replying to notice of ejectment tenant admitted to be tenant and did not deny relationship of landlord and tenant inter se‑‑Rent Controller rightly held that there existed relationship of landlord and tenant between parties.
‑‑‑S. 14‑‑Ejectment‑‑Identity of landlord‑‑Determination of‑‑Landlord calling himself by various names‑‑Where a person was admittedly landlord, question as to his real name and alias, held, would lose importance.
‑‑‑S. 14‑‑Ejectment for personal requirement‑‑Identity of landlord‑ Question of age, determination of‑‑Different dates of birth of landlord given in electoral roll, identity card and birth certificate‑‑Birth certificate, held, would be more reliable for determination of age of landlord, especially where same was produced by tenant for a different purpose against such landlord, to prove statutory requirement of age.
‑‑‑S. 14‑‑Eject men t‑‑Notice‑‑Object and scope of‑‑Provision of requirement of notice directory and not mandatory‑‑Notice is required to contain two ingredients, viz. that tenant be informed that premises were required by landord for his personal need and that such tenant should deliver vacant possession of building‑‑Service of notice of ejectment application upon tenant would be sufficient compliance with statutory requirement of notice‑‑Only limitation, however, for the safeguard of rights of tenant would be that ejectment could not be ordered by Rent Controller within sixty days of receipt of notice of such ejectment application.
1983 C L C 85 and Barkatullah Khan v . Mirza Muhammad Hasan P L D 1986 Kar. 309 ref.
‑‑S. 14‑‑Ejectment for personal need of landlord‑‑Previous application for personal bona fide need under S. 15 of Ordinance 1979 dismissed‑ Effect‑‑Landlord, held, was not required to prove bona fides of his needs but his claim that premises were required for personal use would be sufficient when applying under S. 14 of the Ordinance‑‑Dismissal of previous application for personal bona fide need would not be a bar to filing of application under S. 14 of Ordinance, 1979 for in former case he had to prove bona fides of his need, which was not required in application under S . 14 thereof.
1984 C L C 3066 and 1985 C L C 882 rel.
‑‑‑Ss. 14 & 21‑‑Appellate jurisdiction, exercise of‑‑Where requirements of S. 14 of Ordinance 1979 relating to ejectment of tenant were complied with and proved, High Court in exercise of appellate jurisdiction declined interference with the order of ejectment.
Lal Muhammad for Appellant.
Wahid Bux Baloch for Respondent.
Dates of hearing: 10th February, 15th May and 27th August, 1986.
This First Rent Appeal impugns the order of the learned Senior Civil Judge and Rent Controller Jacobabad dated 4‑9‑1985 in Rent Application No. 29 of 1984 ordering eviction of the appellant.
The brief facts leading to this appeal are that respondent/ applicant is owner of property bearing C . S. No.l/951 Jacobabad, which he had purchased from Settlement Department under P.T.D. No.1393 dated 27‑1‑1966. The property comprised of a shop on the ground floor and a residential house on the upper floor. Residential house is in possession of respondent /applicant, while he rented out the shop to the appellant in about 1968 or 1969. Respondent who has attained age of 60 years filed an application under section 14 of the Sind Rented Premises Ordinance, 1979 (hereinafter called the Ordinance) for the eviction of the shop on the ground that he required it for his personal use. Earlier to the filing of the application he had given notice to the appellant as required under section 14 of the Ordinance but he failed to vacate the premises.
The appellant resisted application on various grounds. He disputed the identity of the respondent who called himself by various names. He also disputed the existence of relationship of landlord and tenant between the parties and further contended that the respondent had rented out the premises in 1978 after attaining age of 60 years in 1976. He further contended that previous application of the respondent bearing Rent Application No.4 of 1981 on the ground of his personal requirement was rejected by the learned Rent Controller. Therefore, this application was not maintainable and the requirement of the respondent was not bona fide.
On the pleadings of the parties the learned Rent Controller settled the following issues:‑
(1) Whether application is not maintainable in law
(2) Whether the relationship of landlord and tenant exists between the parties
(3) Whether the applicant has attained the age of 60 years before filing of this application
(4) Whether the applicant is not entitled to relief under section 14 of Sind Rented Premises Ordinance, 1979
(5) The orders.
was not pressed by the appellant while the findings of the learned Rent Controller on all the issues are in favour of the respondent.
I have heard the learned counsel for the parties and have perused the record and proceedings of the trial Court.
The confusion as to the existence of relationship of landlord and tenant between the parties has arisen because of inconsistent pleas taken by both the parties in previous litigation between them. It may be pointed that the respondent has earlier filed Rent Application No.4 of 1981 for eviction of the applicant on the ground of non‑payment of rent and his personal requirement. The appellant had contested that application raising the plea that there existed no relationship of landlord and tenant between him and the respondent as the shop was rented out to him by Allahdino brother of the respondent who used to collect rent and after his death Muhammad Ali used to collect rent. Learned Rent Controller held that in absence of written tenancy agreement and in absence of evidence of Muhammad Ali the respondent had failed to prove the relationship of landlord and tenant between the parties. It may be pointed that this application was filed on 26‑1‑1981 and was decided on 7‑3‑1983. On 2‑2‑1981 viz soon after the Rent Application 4 of 1981 appellant filed Rent Application No.3 of 1981 describing the respondent as landlord and prayed for an order of restoration of electric connection which had been disconnected by the respondent. Respondent contested this application on the ground that the shop was rented out to the appellant by Allahdino, therefore, he had to prove the relationship of landlord and tenant. This application was decided by the learned Rent Controller on 23‑6‑1981 holding the respondent to be the landlord ordered him to restore the electricity to the appellant. However, F.R.A. 62 of 1981 was filed against this decision before this Court which was dismissed by this Court on 11‑4‑1983 holding;
"The factum that the rent was paid by the respondent (present appellant) to somebody else would not negative the relationship if the above rent was collected by other person on behalf of appellant (present respondent). The very fact that the respondent had approached the Rent Controller under section 11 of the Sind Rented Premises Ordinance impliedly admit the factum of relationship which was not denied by the appellant."
This finding of this Court sets at rest the dispute over relationship of landlord and tenant between the parties.
It may be pointed out that while replying to the notice of the respondent under section 14 of the Ordinance the appellant admitted to be tenant and did not deny the relationship of landlord and tenant between the parties. Under the circumstances the learned Rent Controller has rightly held that there existed relationship of landlord and tenant between the parties.The counsel for the appellant has attacked the maintainability of rent application on various grounds. He contends that the identity of the respondent is not clear as he calls himself by various names. The respondent in his deposition has given his name as Karim Bux alias Abdul Karim alias Kaman Lala son of Abdul Rahim Moghul. In view of the fact that the respondent is admittedly landlord the question as to what is his real name and what is his alias loses its importance. We need not discuss it further.
It is contended that the respondent has produced birth certificate which shows date of birth as 14‑11‑1916. He has also produced his‑‑ identity card as well as a copy of electoral roll in which different date of birth is shown. However, from all the three documents, it is clear that the respondent had attained age of 60 years prior to filing of the
it present rent application. In my opinion the birth certificate is more reliable and in fact that certificate is relied upon by the appellant for further attack on the maintainability of the present application. It is contended that under this certificate the respondent had attained the age of 60 years in 1976 and that he let out the demised premises to the appellant in 1978. This confusion as to when the premises were let out has also arisen from the conflicting stands taken by the parties in the present and previous litigation between them. It may be pointed that in the Rent Application No. 4 of 1981 the respondent had averred that he had let out the premises to the appellant in 1978 whereas in the present rent application is adverse that he let out the premises to the appellant in 1968 or 1969. The contention of the appellant in rent application 4 of 1981 was that the premises were let out to him in 1963 whereas in the present application he contends that same were let out to him in 1978. However, in the judgment of Rent Application 4 of 1981 the learned Rent Controller had held that the premises were rented out to the appellant much before 1978 because the ration card produced by him showed that it was issued in 1973 on the address of the demised premises. It may also be pointed that the statement of the respondent before the learned Rent Controller that he rented out the shop in 1968 or 1969 has not been challenged in his cross‑examination. Even the appellant has admitted in the cross examination that he is tenant of the disputed shop since last 20 years. Under the circumstances this argument of the learned counsel for the appellant also loses force.
The maintainability of the application is further attacked on the following two grounds:‑
(i) That the notice under section 14 is not in the proper form as required under section‑14 of the Ordinance.
(ii) That in the previous Rent Application No. 4 of 1981 it was held that the respondent did not require the demised premises for his personal bona fide use and was, dismissed in 1983. Therefore, present application would not be maintainable on the same ground.
It may be pointed that in the notice under section 14 which was produced as Exh.17, the respondent had not stated in clear words that he needed the building for personal use. It is also an admitted fact that in Rent Application No. 4 of 1981 the respondent had prayed for eviction of the appellant on the ground that he required it for his personal bona fide need which ground was rejected by the learned Rent Controller and his application was dismissed and no appeal was filed. It is contended by the learned counsel for the respondent that the form of notice laid down in section 14 of the Ordinance is merely directory in nature and not mandatory in nature and the omission to mention in the notice that the respondent needed the shop for his personal use would not be fatal. It is also contended that the dismissal of the application moved under section 15 of the Ordinance would not be bar to moving an application under section 14 of the Ordinance. Both the learned counsels have relied upon case‑law in support of their respective contentions which I will presently discuss. In 1983 C L C 85 a Single Judge of this Court dismissed the rent application under section 14 at the cause of action whatsoever for landlord to evict the tenant in summary way was not disclosed in the application. This case is apparently distinguishable as the cause of action has been mentioned in the Rent Application.
The various questions raised by the counsels of parties were considered by a Full Bench of this Court in case of Barkatullah Khan v. Mirza Muhammad Hasan P L D 1986 Kar. 309. Before I proceed to consider the views on these questions expressed by the Full Bench I fell it will be relevant if section 14 of the Ordinance is reproduced which reads as under:‑
(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.
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 (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."
The majority view in Barkatullah Khan's case was as under:‑
"While interpreting the provision of section 14 of Sind Rented Premises Ordinance, the language used by the legislature has to be considered first. Section 14 makes it clear that the specified person who is the landlord 'may' by notice in writing inform the tenant that he or she needs the building for personal use and require him to deliver possession of the building within such time as specified in the notice, not being earlier than two months from receipt thereof'. The word 'May' is a pointer to the clear intention of the legislature. From grammatical construction of section 14 the notice requiring to vacate on expiry of two months from the receipt thereof cannot be termed as mandatory or a condition precedent for filing the action. In this regard taking into consideration the object of the Legislation it is to be determined whether the provision relating to notice is mandatory or directory .....................................
In cases where the provisions of a statute can be divided in two parts, the part which confers a jurisdiction or lays down qualifications for invoking the jurisdiction or taking any action can be termed as conditions precedent to the action. So far procedural part is concerned unless it is specifically provided that its non‑compliance will invalidate the proceeding or without its compliance no action can be taken it will be treated as directory ..............................
A close scrutiny of section 14(1) makes it plain that it can conveniently be divided in two parts, one relates to the jurisdiction and qualification for invoking it, and the other is procedural or machinery provision. So far the jurisdictional provisions are concerned they have to be strictly followed and are mandatory in nature. The right to invoke section 14 has been conferred on specified class of landlord who is a widow, or a minor whose both parents are dead or a salaried employee who is due to retire within next six months or has retired, or a person who is due to attain the age of 60 years within next six months or has attained the age of 60 years. In the words of the Supreme Court in Atta Muhammad's case these qualifications 'enable persons to take legal proceeding under certain specified circumstances'. There can be no laxity in satisfying the qualifications and complying with the conditions prescribed for the landlord to whom relief under section 14 can be granted. These provisions are mandatory and have to be construed strictly. The second part of the section requiring the landlord to serve a notice of sixty days is a machinery provision lying certain procedure for regulating the ejectment proceeding by such landlord. It cannot be termed as mandatory or a condition precedent for filing the ejectment case. The provision requiring service of notice and period for vacating the premises by the tenant as held by the
Supreme Court in Wali Muhammad's case is for the benefit of the tenant. It is not a provision relating to public benefit or public policy. It, therefore, follows that such a provision cannot be termed a mandatory."
Thus, there can be no dispute that the provisions with regard to issue of notice are directory and not mandatory and are only for the protection of the tenant. The spirit of these provisions is that the tenant should not be taken unaware and he should have two months time to vacate the premises from the date of notice. The notice is required to contain two ingredients; firstly that tenant be informed that premises are required by the landlord for his personal need and secondly he be required to deliver vacant possession of building. In the instant case notice calls upon the appellant to deliver the vacant possession but does not specifically show that the premises were needed for the personal use of the respondent. However, this prayer is contained in the ejectment application filed by the respondent of which notice was received by the appellant. On the basis of the findings of the Division Bench the lapse on the part of the respondent to mention specifically in the notice that the premises were needed by him for personal requirement, would not be fatal. The purpose of notice would be served by the issuance of notice of rent application containing such averment. In this context reference be made to the case of Syed Azhar Imam Rizvi. v. Mst. Salma Khatoon 1985 S C M R 24. While dealing with the question whether issue of notice under section 13‑A of West Pakistan Urban Rent Restriction Ordinance was necessary before filing eviction application, their Lordships observed "Receipt of copy of ejectment application and knowledge gained thereby would constitute due notice and same will have to be treated as substantial compliance".
On the analogy of the law laid down by the Supreme Court it can safely be said that the service of notice of ejectment application upon the appellant was sufficient compliance with the requirement of notice as contained in section 14(1) of. the Ordinance. The only limitation for the safeguard of rights of tenant would be that ejectment could not have been ordered by the Rent Controller within sixty days of the receipt of notice of this ejectment application. In the instant case the written statement was filed by the appellant on 27‑2‑1985 and it can safely be assumed that he received notice prior to this date, while eviction order was passed by the learned Rent Controller on 4‑9‑1985.
On the question as to whether the Rent Controller could go in bona ‑ fides as to personal requirement of landlord in an application under section 14 of the Ordinance reliance is placed on 1984 C L C 3066 wherein it is held that the question of bona fides or mala fides by Rent Controller for ejectment of tenant on ground of personal requirement of landlord under section 14 was not necessary. In 1985 C L C 882 it has been held that relief claimed under section 15 was subject to bona fide and good faith of landlord while under section 14 it did not carry any such condition.
This preponderance of case‑law with which I am in respectful agreement rightly lays down that in an application under section 14 of the Ordinance the landlord need not prove the bona fides of needs but it is sufficient if he claims that the premises are required for his personal use. As such the fact that his application under section 15 of the Ordinance when he claimed premises for his personal bona fide need was dismissed, would not be a bar to the filing of application under section 14 because in the former case he had to prove the bona fides of his need, which is not required in application under latter section.
The result of the above discussion is that there is no substance in this appeal which is dismissed. However, the premises in question is shop therefore, the appellant is given six months time to vacate the demised premises. The appeal was dismissed by short order, dated 27‑8‑1986. Above are the reasons in support of the said order.
A . A . Appeal dismissed.
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