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First Rent Appeal No. 125 of 1986, decided on 10th August, 1986.

‑‑S. 14(2)‑‑Terms "occupation" and "possession", connotation of‑‑Terms legally not being synonymous, plea, raised by tenant that landlord was in possession of two other shops in locality other than disputed one, held, would not fall within purview of S. 14(2) as tenant nowhere alleged that said two shops were actually in occupation of landlord.

‑‑‑Ss. 14 & 21‑‑Ejectment of tenant‑‑Framing of issues‑‑Non‑production of evidence‑‑Effect‑‑Issue of applicability of S. 14(2) in the case having been framed by Rent Controller, it was made obligatory for tenant to lead evidence to establish such issue‑‑Failure of tenant to lead evidence would not justify remand of case for production of evidence as remand would serve no useful purpose in circumstance.

‑‑S. 14‑‑Special provisions of statute‑‑Non‑compliance of‑‑Effect‑ Provisions of S. 14(1) being, special provisions providing special benefit to landlord under circumstances mentioned therein, such provisions, held, had to be very strictly complied with and no laxity could be shown in that respect if landlord wished to take advantage of such special provisions‑‑Landlord would be precluded from availing benefit of such provisions if same were not strictly complied with by him since initiation of proceedings under S. 14 would entail ejectment of tenant from rented premises in a summary manner.

Barkatullah Khan v. Mirza Muhammad Hassan P L D 1986 Kar. 309 ref.

‑‑‑S. 14(1)‑‑Notice, invalidity of‑‑Effect‑‑Notice under S. 14(1) even to tenant by landlord more than six months before date on which landlord was due to retire from service‑‑Provisions of S. 14(1) having not been strictly complied with by landlord, notice given by landlord being premature, held, was invalid and proceedings before Rent Controller based on such invalid notice were not maintainable under law.

Sultan Ahmed Khan for Appellant.

Nisar H. Zaidi for Respondent.

Date of hearing: 10th August, 1986.

This appeal calls in question the order passed by the learned First Senior Civil Judge and Rent Controller, Hyderabad, dated 18‑3‑1983 ordering eviction of the appellant from the premises in question within two months from the date of the order.

The respondent had filed an ejectment application, against the appellant under section 14 of the Sind Rented Premises Ordinance, 1979 hereinafter referred to (as 'the Ordinance') in respect of Shop No. F/64/2 situated at Risala Road, Hyderabad, in which the appellant was the respondent's tenant at a monthly rent of Rs.250. The respondent was due for retirement from Government service with effect from 3‑12‑1985 and the shop was required for his personal use. Therefore, the respondent sent notice dated 30‑5‑1985 to the appellant asking him to vacate the shop and deliver its vacant possession to the respondent. However, on the appellant's failure to vacate the shop the respondent filed ejectment application before the learned Rent Controller.

I have heard Mr. Sultan Ahmed Khan on behalf of the appellant and Mr. Nisar Hussain Zaidi on behalf of the respondent.

The first contention raised by Mr. Sultan Ahmed Khan was that the respondent was in possession of two other shops in the locality which disqualified him from filing the ejectment application under section 14 of the Ordinance but since no such issue had been framed by the learned Rent Controller the case should be remanded to him for decision on the point. It may be pointed out that litigation had earlier taken place between the parties in respect of the same shop and the son of the respondent namely Syed Hasan Haider while giving evidence before the learned Rent Controller in the earlier case had made admission that the respondent had two other shops in his possession, one at Lajpat Road and the other at Tilak Incline. Consequently, the appellant while filing written statement in this case did raise such plea but the same was not considered by the learned Rent Controller.

The contention raised by the learned counsel, in my opinion is completely devoid of force. Although it is correct that the appellant in. his written statement has referred to the said admission made by the. Respondent son but no positive assertion in this respect has been made by the appellant as it has not been claimed that the respondent was actually in possession of the two shops. Then technically the plea raised by the appellant in the written statement does not fall within p the purview of section 14 (2) of the Ordinance as the written statement only speaks of possession and not occupation as contemplated by the said section and subsection. Legally speaking the terms 'occupation' and 'possession' cannot be synonymous. Next coming to the plea taken by the appellant that no issue on the point has been framed by the learned Controller, the same also appears to be not wholly correct a5 the plea raised in the appellant's written statement was covered over issue No.l framed by the learned Rent Controller which was, 'whether the case of applicant is governed by section 14 of the Ordiance'. Since an issue in this respect had been framed it was obligatory on the appellant to lead evidence and establish such plea raised by him in the written statement. Since no evidence was led on the point the contention that the case may be remanded for decision on the point to the learned Controller cannot be accepted as no useful purpose would be served thereby.

The next plea raised by Mr. Sultan Ahmed Khan however, carries lot of force. It has been pointed out that there was no valid notice sent by the respondent to the appellant under section 14 (1) of the Ordinance and, therefore, the entire ejectment proceedings before the learned Rent Controller were without jurisdiction and were not maintainable. The notice dated 30‑5‑1985 clearly stated that the respondent was due to retire from service of the Government with effect from 3‑12‑1985. The contention of Mr. Sultan Ahmed Khan, therefore, has been that according to section 14 (1) of the Ordinance, such notice could have been sent by the respondent either after his retirement or not more than six months before the date of such retirement. As the notice on the face of it indicates that the same was sent to the appellant more than six months before the respondent's retirement, the same, according to Mr. Sultan Ahmed Khan was pre‑mature and no valid proceedings for eviction of the appellant could be based on such notice.

Before the argument can be appreciated it would be worthwhile to reproduce section 14(1) of the Ordinance which provides as follows:

(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;"

A perusal of section 14 (1) indicates that it is a special provision inserted in the Ordinance to provide special benefit to the landlord under circumstances mentioned in the subsection. A like of such provision cannot be found in any other rent law either presently or earlier in force. The general scheme of the Ordinance indicates that this provision has been inserted therein as an exception to the general provisions which are contained in section 15 of the Ordinance as according to that section the landlord who requires the premises for his own occupation or use or for the occupation or use of his spouse or any of his children has first to establish good faith. The provisions of section 14 have to be very strictly constituted and no laxity can be shown in this respect since initiation of proceedings under section 14 entail ejectment of the tenant from the rented premises in a summary manner. The language of subsection (1) of section 14 makes it manifestly clear that the landlord of building who has either retired or is due to retire within the next six months is entitled to avail the benefit of section 14 after serving the tenant with a. notice in this behalf. It is, therefore, clear that the cause of action to eject the tenant under section 14 of the Ordinance arises to the landlord on or after occurrence of any of the events specified therein or as the case may be, within six months before its occurrence and the same matures after notice as contemplated by section 14 (1) has been sent by the landlord and after expiry of the time specified therein. If the provisions of section 14 (1) sic not strictly complied with, then the landlord would be precluded from availing the benefit of section 14. Reference in this respect may be made to a decision of the full Bench of this Court in Barkatullah Khan v . Mirza Muhammad Hassan P L D 1986 Kar. 309, wherein similar views have been expressed and it has been held that a notice which is not served in accordance with the said provisions of the Ordinance would be any thing but a notice under section 14. It has been further held that service of notice in accordance with section 14 (1) of the Ordinance was a condition precedent and no landlord could apply to the Controller for eviction of the tenant without serving such notice first.

Turning to the facts of the instant case it cannot be denied that the notice sent by the respondent to the appellant was pre‑mature as the same was given more than six months before the date on which the respondent was due to retire from service. Therefore, the same was not in strict compliance with the provisions of section 14 (1) of the Ordinance and as such it was invalid. I am, therefore, clearly of the view that the proceedings before the learned Controller which followed such notice being based on invalid notice were not maintainable under the law.

I, therefore, allow this appeal and set aside the impugned order dated 15‑3‑1986. There will however, be no order as to costs in view of the question raised in his appeal.

H.B.T. Appeal Allowed.

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