Find a Lawyer

First Rent Appeal No.543 of 1985, decided on 9th July, 1987.

---S.14--[.As amended] S.14--Limitation for filing application under S.14--After amendment of Ordinance by the amending Ordinance XII of 1980 there is no limit now for filing application under S.14.- [ Limitation ].

1982 C L C 175 and P L D 1983 Kar. 445 ref.

---S.14--Fact that prior to filing of petition landlord had sold other shops in the building does not stand in his way in seeking possession of shop under S.14.

1985 S C M R 291 distinguished.

1984 C L C 2291 held not applicable.

----S.14(2)--Landlord already in occupation of residential portion on the first floor of the building is not disentitled to claim eviction of tenant from a shop in the same building--Word "building" in subsection (2) of S.14 has reference to building of like nature.

1984 C L C 2291 distinguished.

---S.14--Some of the grounds mentioned in petition abandoned by landlord--Petition under S.14 nevertheless maintainable on admissible grounds.

P L D 1985 Kar. 663 ref.

---S .14--Provision of S .14 confers on class of landlords specified therein right to evict tenant from building for use of the same for is personal use--Expression "personal use" in S.14 envisages use of owner or spouse or son or daughter.--[P L D 1982 Kar. 406 dissented from].

P L D 1982 Kar. 406 dissented from.

P L D 1984 Kar. 173 ref.

---S.14--Landlord not entitled to more than one unit--Eviction of tenant sought from three shops on ground that they constituted one composite unit but later on landlord conceding that if the three shops be considered separate units possession of one of them selected by him be given to him--Eviction of tenant from shop selected by landlord ordered.

Dilawar Hussain Nayyar v. Niaz Muhammad Dar 1985 S C M R 1969; Civil Petitions Nos.400-K and 401-K of 1985 and 1986 S C M R 1981 ref.

M.A. Nazi alongwith Khalid Dawood Pota for Appellant.

Ahmed Yusuf Ali Rizvi for Respondent.

Dates of hearing: 4th, 5th, 7th, 10th and 17th May, 1987.

Appellant Muhammad is in occupation of shops No.8, 9 and 10 on plot No.III-D-1, Cole Market, Nazimabad, Karachi, as tenant of the respondent Dilawar Khan Durani. The respondent filed Rent Case No.860 of 1984, under section 14 of the Sind Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance) on 3-3-1984. He stated that he had retired from service with M/s Mackinnon Mackenzie & Company. Ltd. , in the year 1976 and had also attained the age of 60 years on 16-1-1982. He further stated that he had served on the tenant /appellant requisite notice for vacating the rented premises but there was no response. He also made some other allegations of default in payment of rent and unauthorised alterations/ additions etc. The appellant resisted the Rent Case contending, inter alia, that the grounds for eviction urged in the application placed the case outside the scope of section 14 of the Ordinance. He further contended that the respondent/ landlord owned the entire building consisting of 13 shops and 18 flats and he was interested in letting them out on charging 'Pugree' and he had, therefore, filed the eviction case against him. He made denial of other allegations contained in the application. He also advanced the plea that the respondent had agreed to sell the shop to him. The parties filed their own affidavits in evidence. In addition, the respondent's son Muhammad Sarwar Khan also filed Affidavit to support his father, and the appellant filed Affidavits of two persons, by names Riaz Ali Ismail Manchani and Muhammad Ibrahim. The learned Controller held that the respondent/ landlord was entitled to get possession of the rented premises under section 14 of the Ordinance and passed order of eviction on 8-10-1985, directing the appellant to hand over vacant possession of the shops within 60 days. The appellant has preferred this appeal against this order.

The learned counsel for the appellant has urged that the appellant had retired from service on 16-1-1977 and had, according to him (the appellant), attained the age of 60 years on 16-1-1982, although not proved, and ejectment application was filed on 3-3-1984 and delay in making the application indicated that the respondent did not need the rented premises for his own use. In this respect, he has also urged that the respondent has sold away 10 other shops in the same complex and he was interested in selling the rented shops. He has relied upon a case reported in 1985 S C M R 291. He has contended that the respondent was already occupying first floor of the building and the ejectment application filed by the respondent is hit by subsection (2) of section 14 of the Ordinance. He has relied upon a case reported in 1984 C L C 2291. He has further contended that the respondent could not seek, under section 14 of the Ordinance, possession of the shops simultaneously. He has made reference to an unreported judgment of this Court in F.R.As. No.620-625185. He has also contended that section 14 of the Ordinance is confined only to the need of the landlord and does not envisage need of the spouse of their children. He has cited P 1. D 1982 Kar. 406 as the supporting authority. According to him, most of the grounds agitated in the eviction application did not fall within the purview of section 14 of the Ordinance. He has lastly urged that defence of the appellant was not considered and the case may be remanded for reconsideration in the light of decision reported in P L D 1984 Kar. 173.

The learned counsel for the respondent has submitted that the f4ctum of age of the respondent stood proved by the documents placed on the record and his identity card etc. He has next submitted that there is no time limit for making application under section 14 of the Ordinance and he has cited two cases reported in 1982 C L C 175 and P L D 1983 Kar. 445 as supporting authorities. He has also urged that the respondent, having retired from service and also having attained the age of 60 years, is entitled to seek possession of the rented premises which, according to him, constitute one composite unit, and, alternatively, he would be entitled to get possession of at least one of the shops in light of Supreme Court decision reported in 1986 S C 141 R 1981. He has stated that the respondent landlord would opt for shop No.8 in case he is not found entitled to have possession of all the three shops as one unit. He has argued that the grounds falling outside the sphere of section 14 of the Ordinance, were dropped by the respondent vide statement dated 6-4-1985 and eviction application could be maintained on the left out grounds admissible under section 14 of the Ordinance. He has relied upon a case reported in P L D 1985 Kar. 663.

The respondent's case is that he had retired from service on 16-1-1977 and had attained the age of 60 years on 10-1-1982. In this respect, he has placed on record the letter dated 14-12-1976 from his employers M/s Mackin non-Mackenzie and Co. Ltd. Pakistan, addressed to him that he was to retire on 16-1-1977, after attaining the age of 55 years. Authenticity of this letter has not been called in question. It confirms both the events of the respondents retirement on 16-1-1977 and his attaining the age of 60 years on 16-1-1982. He therefore comes in the category of the landlords who can invoke the provisions of section 14 of the Ordinance for seeking possession of the rented premises, subject to fulfilment of other requirements. He had served requisite notice under section 14 of the Ordinance on the appellant for vacating the premises. The relief for eviction of the tenant under the provisions of section 14 of the Ordinance was provided first time under the Ordinance which was promulgated on 14-11-1979. The respondent could not avail of such relief earlier as there was time limit of six months for filing the application under section 14 of the Ordinance. The time limit was removed under the Sind Rented Premises (amendment) Ordinance, 1980 promulgated on 1-9-1980. The respondent attained the age of 60 years on 16-1-1982. Filing of the application on 3-3-1984 was not belated one. Moreover, there is no time limit now on the filing of the application under section 14 of the Ordinance. Such view was adopted also by a learned Judge of this Court in the case Muzaffar Ali v. Tauqeer Alam Ashahar P L D 1983) Karachi 445. Selling of other shops in the same complex by the respondent did not stand in his way in seeking possession of the Rented Premises under section 14 of the Ordinance. Proviso to subsection (1) of section 14 of the Ordinance disentitles the specified class of landlords from availing of relief under section 14 of the Ordinance in case the landlord has rented out the building after he had become entitled to invoke section 14 of the Ordinance. In the instant case, there are no such allegations and mere selling of other shops did not extinguish the right of the landlord to seek possession of rented premises under section 14 of the Ordinance. No such question was under consideration in the case Bux Illahi v. Kazi Ghaxib Ali 1985 S C M R 291 relied upon by the learned counsel for the appellant. In that case; subsection (2) of section 14 of the Ordinance laying down that landlord shall not be entitled to avail of benefit of subsection (1) .of section 14 of the Ordinance if he is in occupation of any building- in the same locality was considered.

The objection to the maintainability of the eviction application on the ground that it was hit by subsection (2) of section 14 of the Ordinance as the respondent was in occupation of the first floor of the building also does not seem tenable as the shops sought to be vacated constitute commercial premises whereas the first floor in occupation of respondent is residential premises. Of course, there is no express distinction in section 14 of the Ordinance in respect of commercial building and a residential building but it appears from the text of subsection (1), subsection-(2) of section 14 of the Ordinance that reference to the word "building" employed in both the subsections has reference to the building of like nature. Had the intention of the legislature been otherwise, the scope of section 14 of the Ordinance which provides special and speedy relief to the landlords, who are placed under special circumstances would be restricted to almost negation of any relief as the landlord living in his own house would not get relief of possession of his commercial building for earning his livelihood; and, conversely, the landlord occupying the commercial building would not be entitled to get possession of his residential building to live in and leave sigh of satisfaction. The case relied upon by the learned counsel viz. Mst.Shamsa Khatoon v. Syed Anwar Ali 1984 C L C 2291 had distinguishing features as the landlady was already occupying ground floor of the premises and was seeking possession of the first floor which had been let out and both were the residential premises.

The other ground agitated by the learned counsel for the appellant is that. the eviction could not- be sought under section 14 of the Ordinance as some of the grounds stated in the application did not come within the purview of section 14 of the Ordinance. The other grounds advanced in the eviction application were abandoned during the pendency of the application and such statement dated 6-4-1985 was filed before the Controller. Such ground was considered by a learned Judge of this Court in a case Syed Mujtabe Hassan Abidi v. Ferozuddin Zaki P L D 1985 Kar. 663 and it was held that after dropping out inadmissible grounds from the eviction case under section 14 of the Ordinance, the application was maintainable. I am in respectful agreement with the view adopted in that case.

The objection to the maintainability of the application on the ground that section 14 of the Ordinance does not envisage need of the children of the landlord to seek eviction of the appellant also is not tenable.- No doubt such objection was upheld in a case A . S . Mughal v. Mst.Khurshid Asmat Ali P L D 1982 Kar. 406. With utmost respect, I do not subscribe to that view and I subscribe to the view of the same learned Judge to the, contrary adopted earlier in an unreported case of M/s Tangra v. Pak. Fipk Corporation F.R.A. No.443/81 decided on 23-9-1981 and referred to in the aforesaid reported case. There is marked distinction between the provisions of sections 14 and 15 of the Ordinance for seeking eviction of the tenant. Section 14 of the Ordinance provides that the class of landlords specified therein can seek eviction of tenant from the building-for personal use. "Personal use", is defined in clause (g) of section 2 of the Ordinance as the "use of the premises by the owner thereof or his wife (or husband), son or daughter". Obviously the expression "personal use" employed in section 14 of the Ordinance includes the need of the children of the owner-landlord. Identical provisions contained in clause (vii) of subsection (2) of section 15 of the Ordinance provide for seeking eviction of the tenant on the, ground of a landlord requiring the premises in good faith for his own occupation or use or for the occupation or use of his spouse or any of the children. I am therefore of the view that section 14 of the Ordinance does envisage eviction of a tenant on the ground of the building needed for the' use of the owner or the spouse or a son or daughter of the owner. In the instant case, the respondent's case has been that he needs the rented building for his own use.

The last but one ground put forth by the learned counsel is that the respondent can not seek possession of all the three shops in the light of the decision in F.R.A. No.520-625/85 decided on 6-5-1986. It has been contended that it has been brought in evidence that all the three shops constitute one composite unit. The learned counsel for the respondent has urged that even if the three shops are considered to be separate units, the respondent /landlord can seek possession of all the three shops in the light of the Supreme Court decision in a case Dilawar Hussain Nayyar v. Niaz Muhammad Dar 1985 S C M R 1969 whereby the Supreme Court upheld decision of the High Court remanding the case to the Controller for considering the requirement of the landlord in pragmatic manner. But in a subsequent decision in Civil Petition No.400-K and 401-K/1985 decided on 22-1-1986, the Supreme Court held that the landlord was not entitled to more than one shop premises under provisions of section 14 of the Ordinance. In view of this decision, the learned counsel for the respondent relying on the decision of the Supreme court in the case Sardar Khan v. Riyaz Ahmed and others 1986 S C M R 1981, wherein it was held that matter of choice in selecting premises for getting possession lay with the landlord, made statement that the respondent would prefer to have shop No.8 in case he is not entitled to get all the three shops. This statement of the learned counsel portrays equitable approach to the situation.

Lastly, the learned counsel for the appellant has contended that 'the Controller has not considered the defence put forth by the appellant and that case may be remanded for re-consideration in the light of the case Shaboo v . Muhammad Ismail and seven others P L D 1984 Kar. 173. The case relied upon is not at all, relevant to the plea advanced by the learned counsel. The learned Controller seems to have considered the case put forth by the appellant. Of course, he did not filed upon the plea of alleged sale of the shops, rightly so, as it was beyond the field he was required to examine under the Ordinance. This ground also is not sustainable.

The impugned order of eviction has been passed in respect of 3 shops No.8,9 and 10. As discussed above, the respondent could seek eviction in respect of only one of the shops. His Advocate has made statement that he would choose to have shop No.8. The impugned order of eviction is maintained in respect of only shop No.8 and it is set aside as regard other two shops No.9 and-10. The appeal stands partly 'dismissed and partly allowed as above. The parties are left to bear their own costs.

Judgment was pronounced in presence of the Advocates for the parties; namely Mr'M.A.Kazi and Mr.Ahmed Yousuf Ali Rizvi. They have filed a joint statement that two months time may be allowed for vacating the shop No.8. The statement is placed on record. The appellant is allowed two months time for vacating the shop No.8.

H.B.T./M-228/K Appeal partly accepted.

Find a Lawyer Near You

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