Find a Lawyer

First Rent Appeal No. 32 of 1986, decided on 17th November, 1986.

‑‑‑Ss. 14 & 15‑‑Ejectment application under S. 14 filed during pendency of application under S. 15‑‑Maintainability of‑‑Causes of action accruing to landlord under S. 14 being absolutely independent from those enumerated under S. 15‑‑Application filed by landlord under S. 14 that he had attained age of 60 years and was entitled to ejectment, held, was maintainable irrespective of fact that application under S.15 was already pending between parties in respect of same property.

‑‑‑Ss. 2(H), 14 & 21‑‑Eviction of tenant from cafe‑‑Maintainability of application‑‑Cafe, connotation of‑‑Cafe being not equated with "hotel" as 'cafe' means place where meals or drinks are served to public while 'hotel' means a house for accommodation for travellers‑‑Shop in dispute admittedly being used as cafe and not as hotel, held, could be included in definition of premises under S.2 (H)‑‑Ejectment application was maintainable in circumstances.‑‑[Words and phrases].

K.P. Moidoro and another v. Mst. Noor Jehan Begum 1983 CL.C 723 ref.

‑‑S. 14‑‑Notice to tenant‑‑Nature and spirit of‑‑Spirit of provision of S.14(1) with regard to issuance of notice to tenant, being only to inform tenant about personal requirement of landlord in respect of premises in dispute so that he should be aware to deliver vacant possession. of premises to landlord within specified period of two months, such provisions, held, were directory and not mandatory.

Barkatullah Khan's case P L D 1986 Kar. 309 ref.

‑‑‑S. 14‑‑Ejectment of tenant‑‑Personal requirement‑‑Notice to tenant‑ Landlord in notice under S. 14(1) calling upon tenant to deliver vacant possession of premises did not specifically show that premises were needed for his personal use‑‑Such prayer was however, contained in ejectment application of which notice was received by tenant‑‑Such lapse on part of landlord, held, would not be fatal, purpose of legal notice having been served bissuance of notice of rent application containing such averment.

Syed Azhar Imam Rizvi v. Mst. Salma Khatoon 1985 S C M R 24 ref .

‑‑‑S. 14‑‑Ejectment of tenant‑‑Personal requirement‑‑Notice to tenant, service of‑‑Service of notice of ejectment application upon tenant, held, would be sufficient compliance with requirement of notice as contained in S. 14(1)‑‑Only limitation for safeguard of rights of tenant would however, be that ejectment could not have been ordered by Rent Controller within sixty days of receipt of notice of ejectment application.

Syed Azhar Imam Rizvi v. Mst. Salma Khatoon 1985 S C M R 24 ref .

‑‑‑S. 14‑‑Personal bona fide requirement‑‑Proof‑‑Landlord in ejectment application under S. 14, held, need not prove bona fide of his needs, but it would be sufficient he claimed that premises were required for his personal use.

1984 C L C 3066 and 1985 C L C 882 ref.

‑‑‑Ss. 14 & 15‑‑Distinction between Ss. 14 & 15‑‑Landlord in ejectment case filed under S. 15 has to prove bona fides of his need‑‑Such need is required to be proved in application under S.14 of same Ordinance‑ Dismissal of former ejectment application under S. 15, held, would not be a bar to filing of application under S. 14.

1984 C L C 3066 and 1985 C L C 882 ref.

Wahid Bux Baloch for Appellant.

Ghulam Muhammad Khan Durrani for Respondent.

Dates of hearing: 10th and 17th November, 1986.

This appeal is directed against the order of Rent Controller, Jacobabad, dated 26‑5‑1986 whereby he dismissed an application under section 14 of the Sind Rented Premises Ordinance, 1979 filed by the appellant against the respondent.

The case of the appellant is that he is landlord of the premises bearing city Survey No. 1250, Ward No. 1, Jacobabad. It comprised of three shops and a residential house on the top of these shops. One of these shops is on rent with the respondent for the last 18 years. The appellant served a notice under section 14 of the Sind Rented Premises Ordinance, 1979, upon the appellant alleging that he had attained the age of 60 years and required the said shop for his personal use and therefore, called upon the respondent to vacate the same on expiry of a period of two months. He further alleged that he had retired from Government service on 31‑8‑1973 and he was not in possession of any other shop. The respondent did not vacate the shop, hence the prayer for his ejectment.

The respondent has contested the case. In written statement, he has alleged that the shop in question was a hotel and, therefore, the provisions of Rented Premises Ordinance were not applicable to it. He denied that the appellant had attained the age of 60 years. He stated that the appellant was not the exclusive owner of the property and, therefore, could not file the application. He, however, contended that before this an application under section 15 of the Rented Premises Ordinance was filed by the appellant against the respondent on the ground of default and requirement of the premises for bona fide personal use and the same was still pending, therefore, the present application was not maintainable. He has further alleged that he had constructed a Veranda and also installed water and electricity connections and has spent Rs.12,000 in all over his shop. He, therefore, prayed for rejection of the application.

Following points arose before the learned Rent Controller for determination:

(1) Whether the application is not maintainable in law

(2) Whether the applicant is entitled to relief under section 14 of the Sind Rented Premises Ordinance (XVII) of 1979

(3) Orders

The learned Rent Controller held issue No. 1 in avour of the appellant and issue No. 2 against him. Coming to the conclusion that the premises was not required by the appellant for his personal use. He dismissed the application as shown above.

Mr. G.M. Durrani, who appeared for the respondent raised the following objections to the maintainability of this application:‑

(1) That the previous application under section 15 of the Sind Rented Premises Ordinance was already pending and, therefore, this application under section 14 thereof was not maintainable.

(2) The shop in dispute was being used as a hotel and, therefore, the provisions of Rented Premises Ordinance were not applicable to it.

(3) He did not require the shop for his bona fide personal use and occupation.

As regards the objection No. 1 is concerned, it may be pointed out that section 14 of the Sind Rented Premises Ordinance, 1979 gave an absolutely independent cause of action to the landlord from those which were enumerated under section 15 thereof. The previous application under section 15 of the Sind Rented Premises Ordinance was filed by the appellant on the ground of default in payment of rent and requirement of the premises for personal use whereas this application under section 14 was filed on the ground that the appellant had attained the age off 60 years and that he had retired from service. The requirements of section 14 having been fulfilled the appellant filed an application there under respective of the fact whether an application under section 15J was already pending between the parties in respect of the same property.

So far as the second objection is concerned, it will be useful to l refer section 2(h) where premises has been defined as not to include a hotel. It may be pointed out that the word hotel has not been defined anywhere in the Rented Premises Ordinance. Hence we have to fall back on the dictionary meaning of the word hotel which according to it means a house for accommodation of travellers. A cafe according to the dictionary means a place where meals or drinks are served to public. Hence a place which is used for serving meals and drinks to the public is to be called a cafe and not a hotel. Reference in this connection may be made to the case of . K . P . Moidoo and another v . Mst. Noor Jehan Begum reported in 1983 C L C 723, where Fakhruddin H . Shaikh, J . held as follows:‑‑

"The question, therefore, arises whether a "cafe" can be equated with a "hotel" . Learned Rent Controller has referred to dictionary meaning of cafe and hotel and concluded that 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 according 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 not 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."

It has been admitted by the respondent in his cross-examination that he has named the premises in dispute as Cafe Sharif. He serves beverages i.e tea and cold drink in the disputed shop. The shop can occupy 30 customers. There are chairs and benches kept for customers in the disputed shop. He has specifically admitted that there is no provision for accommodation of any customer in the premises as it is not meant for lodging. Hence it would appear that the shop in question is not being used as a hotel and, therefore, the provisions of Rented Premises Ordinance would apply to it.

The third objection was that the application did not mention the desire of the applicant that he required the premises for his personal use. This contention also does not hold any water because it has been clearly stated by the appellant in the notice under section 14 that he required the premises for his personal use. He has clearly stated in the application that he had served such notice on the respondent. He had attained the age of 60 years and he had retired from service. He was not in occupation or possession of any other shop and was, therefore, entitled to summary eviction of the opponent. Besides that he has stated in affidavit of his evidence that he required the shop in dispute for his personal need to run Kiryana business therein.

Mr. Wahid Bux Baloch, Advocate, who appeared for the appellant submitted that the filing of the previous rent application under section 15 did not bar the filing of the present application under section 14 thereof. He further contended that in application under section 14 of the Ordinance the landlord has not to prove the bona fides of the requirement but it is sufficient that he may make a claim for the requirement of the premises for his personal use, after fulfilling the conditions specified in that section. It will be useful to reproduce section 14 of the Ordinance:‑‑--------

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:

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."

Reference may also be usefully made to the majority view in Barkatullah Khan's case reported in P L D 1986 Kai 309 which was 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 objection 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(l) 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 provisions. 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 proceedings 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 laying 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 as 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 respondent to deliver the vacant possession but does not specifically show that the premises were needed for the personal use of the appellant. However, this prayer is contained in the ejectment application filed by the appellant of which notice was received by the respondent. On the basis of the findings of the Division Bench the lapse on the part of the appellant 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 respondent was sufficient compliance with the requirement off 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.

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 F 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 the respondent is liable to summary ejectment and the order of the learned Rent Controller therefore cannot be sustained. These are the reasons for which I allowed the appeal by my short order, dated 10‑11‑1986.

H.B.T. Appeal allowed

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.