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First Rent Appeal No.77 of 1986, decided on 25th June, 1987.

---Ss.14 & 21--Personal requirement--Landlord retired from service and required premises for his personal living--Notice sent by landlord to tenant proved on record--Fact that landlord falling within class of persons specified by S.14 of Ordinance and that ejectment application filed on his behalf was valid and proper, conclusively proved--Tenant challenging landlord as owner of premises but transfer order issued by Authorities as well as copy of registered lease deed executed in his favour, placed on record, repelling contention of tenant--Order of Rent Controller ejecting tenant on ground that landlord was entitled to benefit of S.14, was therefore unexceptionable in circumstances.

Allauddin Ansari for Appellant.

M. Umer Qureshi for Respondent.

Dates of hearing: 17th February and 15th March, 1987.

This first rent appeal under section 21 of the Sind Rented Premises Ordinance, 1979 (hereinafter called the 'Ordinance') is directed against the order of the learned Ist Senior Civil Judge and Rent Controller, Karachi West, dated 21-1-1986, whereby she has held that the respondent is entitled to avail of the benefit as required under section 14 of the Ordinance and has, consequently, directed him to hand over vacant possession of the case premises to the respondent within 60 days from the date of the order.

2. The respondent filed an application under section 14 of the Ordinance against the appellant on the ground that he is the owner and landlord of premises No.427, Block 10, Sector 1, Orangi Town, Karachi, and the appellant is tenant in respect thereof on a monthly rent of Rs.70 payable in advance. It was further stated that the appellant had agreed to vacate the premises on one month's notice upon the retirement of the respondent from his service from Pakistan Railways. The respondent retired from service in the end of December, 1979, and his pension started from Ist June, 1980. He retained the Railways quarter upto the end of 1980. He personally approached the appellant in the month of June, 1981, and informed him about his retirement ,and requested him to vacate the premises in question but he failed to do so. The respondent thereupon sent legal notice under section 14 of the Ordinance, on 3rd November. 1982, which was served upon the appellant on 7-11-1982 but he did not make any reply thereto. The ejectment application was thus presented on 12-5-1983.

3. The appellant filed his written statement denying the averments made in the application and stated that in fact the plot in question was occupied by his mother and she had raised construction thereon. It was thus denied that there was relationship of landlord and tenant between him and respondent. He further pleaded that the respondent is a fictitious person and his attorney has committed fraud in obtaining a lease of the plot from the KDA. The service of statutory notice was denied. The learned Rent Controller framed the following points for determination:-

(1) Whether there exists relationship of landlord and tenant between the parties

(2) Whether the applicant is entitled to avail benefits as required under section 14 of the Ordinance, 1979

(3) What should the decree be

The learned Rent Controller answered the points No.1 and 2 in the affirmative and consequently allowed the application as stated above.

4. The learned counsel for the appellant has assailed the above order of the learned Rent Controller by contending that the respondent is a fictitious person inasmuch as he never appeared in court at any -point of time. There does not exist any agreement of tenancy between appellant and respondent and there is no proof that the appellant is the tenant of the respondent in respect of the disputed premises. He further submitted that his Suit No.997/85 is pending before the IVth Senior Civil Judge, Karachi, for cancellation of respondent's lease-deed and if the said suit is decided in favour of the appellant then this application would become unsustainable in law. The counsel even went to the extent of urging that the respondent is no more alive and hence the appeal having been filed through his alleged attorney is incompetent.

4-A. The learned counsel for the respondent, on the other hand, supported the impugned order. He submitted that the respondent is a genuine person and he is still alive as is evident from the pension payment order already produced in the Lower Court. He submitted that the notice under section 14 of the Ordinance has been duly served upon the appellant by a registered post A/D a copy of the postal acknowledgment has already been brought on record.

Since the counsel for appellant has under instructions of his client made a categorical statement that the respondent is no more alive, I deemed it proper, notwithstanding the conclusion of the arguments of the parties counsel on 17-2-1987 to summon the appellant and ensure his personal appearance before the Court, since he had undoubtedly not appeared at any stage of the ejectment proceedings before the Lower Court. The appeal was accordingly fixed on 15-3-1987 for the appearance of the respondent. On the aforesaid date the respondent appeared before the Court and I examined him and recorded his statement. The learned counsel for the appellant had thus to agree that the respondent is alive and the appeal was properly filed.

I, have given my earnest consideration to the submissions made by the learned counsel for the parties and have also perused the impugned order. The learned Controller has, on the basis of the evidence on record, rightly reached the conclusion that the respondent is entitled to avail the benefit of section 14 of the Ordinance. His finding to the effect that the respondent is the owner/landlord of premises in dispute is also based on the documentary and oral evidence available on record. The respondent has placed on record the transfer order issued in his favour by the KDA as well as a copy of the registered lease-deed executed in his favour. In the presence of these documents 'the finding recorded by the learned Rent Controller thereby holding the respondent to be the owner of the house, could not be assailed on any valid reasons. I, therefore, uphold his finding.

5. It is also conclusively proved on record that respondent was an employee of the Pakistan Railways and that he had retired from service in December, 1979. He has also deposed this fact before me. The payment of pension to him is also borne out from the pension payment order (pensioner's portion) on record. It is, therefore, conclusively proved that the respondent falls within the class of persons specified by section 14 of the Ordinance and as such the application for ejectment presented on his behalf was proper and valid. The statutory notice had also been served as rightly held by the learned trial Court, upon the appellant and the application was filed after the expiry of the statutory period of two months. In this view of the matter, there is no escape from the conclusion that the learned Rent Controller has committed no error in allowing the relief to the respondent.

In the result, this appeal fails and is hereby dismissed. The appellant is, however, allowed 30 days' time from the date of this order to vacate and hand over the possession of the premises in dispute to the respondent.

M.Y.H./M-203/ K Appeal dismissed.

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