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First Rent Appeal No. 1115 of 1986, decided on 14th April, 1987.

‑‑‑Ss. 14 & 21‑‑Ejectment application dismissed on ground that notice served on tenant suffered from infirmity‑‑Effect‑‑Where notice under S. 14(1) of Sind Rented Premises Ordinance was suffering from infirmity for want of mention of prescribed period of two months, such defect held, would be rectified if period of two months had passed before ejectment was ordered as per rule laid down by Supreme Court in 198; S C M R 191‑‑Finding of Rent Controller based on wrong interpretation of the rule laid down by Supreme Court in 1983 S C M R 191 was se aside by High Court as unsustainable.

Syed Azhar v. Salima Khatoon 1985 S C M R 24 and Adam Khai v. Yar Muhammad 1987 C L C 475 ref.

Wali Muhammad v. Mst. Hamida Bai 1983 S C M R 191 fol .

‑‑‑Ss. 14 & 15‑‑Civil Procedure Code (V of 1908), S. 11‑‑Earlier ejectment petition of landlord under S. 14 treated as application under S. 15 of Ordinance XVII of 1979 by Rent Controller‑‑‑ Subsequent application under S. 14 whether barred by rule of res judicata-- Subsequent application under S. 14 of Ordinance XVII of 1979, held was not barred as the earlier application had been treated under different grounds.

Iyaz Rashid v. Mst. Inayat Begum 1984 C L C 245 and Shah Illahi v. Mst. Mahmooda Begum 1984 C L C 931 ref.

Adam Khan v. Yar Muhammad 1987 C L C 475 rel.

‑‑‑Ss. 15 & 21‑‑Civil Procedure Code (V of 1908), O.XLI, R. 23-- Tenant's plea of fresh rent agreement by widow of landlord after his death‑‑Statement of widow made in cross‑examination of earlier suit about factum of fresh rent agreement after death of her husband was neither pointedly brought to the notice of such widow nor her explanation was called for the same‑‑Effect‑‑Previous statement of a person, held, could be used against him only when he was given opportunity to explain the same by confronting him with that statement‑‑Point as to whether parties had entered into fresh agreement after appellant had become widow having not been properly thrashed out before Rent Controller, High Court in order to give opportunity to parties to lead evidence on same after framing issue about the factum of fresh agreement remanded back case to Rent Controller to decide same in accordance with law.

Muhammad Zubair Qureshi for Appellant.

Abdul Majeed Khan for Respondent.

Date of hearing: 13th April, 1987.

Mst. Qaiser Jehan Begum has filed this appeal against the judgment of VIth Rent Controller Karachi West dated 7‑12‑1986 whereby he has dismissed her application under section 14 (1) of Sind Rented Premises Ordinance, 1979.

2. The appellant is owner of the disputed premises and the opponent is her tenant therein. She has pleaded that she is a widow and has no means of livelihood. She has further averred that her children are now growing up. The youngest two sons are jobless and the shops in question are required by her bona fidely to establish business of electrical goods and general merchandise. She therefore served the respondent with a notice under section 14 of Sind Rented Premises Ordinance, 1979 on 14‑1‑1986. No reply was given by the respondent. Hence she filed the application under section 14 (1) of Sind Rented Premises Ordinance, 1979 as shown above.

3. The respondent admitted relationship of landlord and tenant between the parties and alleged that the appellant does not need the premises in question and that she had been increasing rent from time to time. He has further pleaded that even prior to this the appellant had filed an application under section 14 of Sind Rented Premises Ordinance 1979 (Rent Case No.1219/83) and had converted it into an application under section 15 thereof later on.

4. On the pleadings of the parties the learned Rent Controller proceeded to decide the issue as regards the maintainability of this application. Relying upon the observations of the Supreme Court in a case, the citation or the name or number of which he has not given in the judgment, the learned Rent Controller held that notice under section 14 was a statutory requirement and that if the period of two months was not mentioned therein the said notice suffered from infirmity. The ruling which the learned Controller had in his mind was at least not known to this Court. I am aware of the case of Syed Azher v. Salima Khatoon reported in 1985 S C M R 24. The Supreme Court while dealing with the question that whether issue of notice under section 13‑A of West Pakistan Urban Rent Restriction Ordinance, which was analogise to section 14 of the Sind Rented Premises Ordinance, 1979, was necessary before filing eviction application, observed "receipt of copy of ejectment application and knowledge gained thereby would constitute due notice and the same will have to be treated as substantial compliance".

In the case of Adam Khan v. Yar Muhammad reported in 1987 CLC 475 this Court after referring to the above ruling of the Supreme Court observed as under:‑‑

"On the anology 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 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."

5. Mr. Abdul Majeed Khan, Advocate, who appeared for the respondent submitted that the learned Rent Controller had in his mind the decision of the Supreme Court in the case of Wali Muhammad v. Mst. Hamida Bai reported in 1983 SCMR 191.

I have perused this ruling. It on the contrary goes against the respondent. It has been held that where a notice under section 14 (1) of Sind Rented Premises Ordinance was suffering from infirmity in that it does not give the prescribed period of two months, yet defect would be rectified if the period of two months had passed before the ejectment was ordered. This finding of the learned Rent Controller cannot, therefore, be sustained.

6. Mr. Abdul Majeed Khan Advocate then submitted that the appellant had filed an application under section 14 (1) of the Sind Rented Premises Ordinance, 1979 on 17‑3‑1983. A true copy of the said application found place at page 43 of the lower Court's record. This application was subsequently converted into an application under section 15 of the Sind Rented Premises Ordinance, 1979 and such an application found place in the record of lower Court at page 47. It is further stated that this application was decided in favour of the appellant and the learned Rent Controller had ordered ejectment of the respondent by holding that the shops in question are required by the applicant for the use of her two sons in good faith and decided it as one of the issues.

7. He further pointed out that once an application under section 14 (1) of Sind Rented Premises Ordinance, 1979 was filed by the widow and had also been decided in her favour as is in the present case, the said application cannot be filed again on the principle of res judicata as well as abandonment of claim enunciated under section 9, Order II, Rule and Order XXIII, Rule 1, C.P.C.

8. Mr. M. Zubair Qureshi, Advocate submitted that the conversion of an application under section 14 to section 15 of Sind Rented Premises Ordinance was quite correct and legal and has supported his submission by citing the case of Iyaz Rashid v. Mst. Inayat Begum reported in 1984 C L C 245. In this case the landlord was allowed to add section 15 in the title of ejectment application and necessity of obtaining amended written statement was not felt by the learned Rent Controller. Saleem Akhtar, J. came to the conclusion that no prejudice having been caused to tenant omission to give opportunity for filing amended written statement was not sufficient to set aside the order of ejectment.

He then referred to the case of Shan Illahi v. Mst. Mahmooda Begum reported in 1984 C L C 931 where an ejectment application titled under section 14 of Sind Rented Premises Ordinance, 1979 was treated as an application under section 15 of the said Ordinance by the learned Rent Controller and proceedings taken accordingly. Mr. Nasir Aslam Zahid, J. held that the tentative rent order and order of striking off defence was passed competently.

Finally he referred to the case of Adam Khan v. Yar Muhammad reported in 1987 C L C 475 wherein in a similar case it was held by this Court as follows:‑-----

"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."

I am, therefore, of clear view that this application under section 14 is not barred under the law.

9. It was next contended by Mr. Abdul Majeed Khan that the appellant had admitted in her statement in Rent Case No. 83 of 1986 that her husband had expired in the year 1974 and that she had made a fresh rent agreement in 1981. He therefore argued that the appellant having entered into fresh agreement of tenancy with the respondent after the death of her husband had lost the right to file an application under section 14 of Sind Rented Premises Ordinance. The true copy of the extract of the appellant's statement was produced in the cross -examination of the appellant but as it would appear the particular portion of the statement regarding the execution of fresh rent agreement after the death of her husband has not been pointedly brought to the notice of the appellant and her explanation was not called for the same. This was absolutely necessary because previous statement of a party could be used against him only when he was given an opportunity to explain the same by being confronted with the same. It appears that the point as to whether the parties had entered into fresh agreement after the appellant had become widow was not properly thrashed out before the learned Rent Controller and the issues that were framed did not cover it fully and the parties had, therefore, no proper opportunity to lead evidence on the same point.

10. I, therefore, order that an issue to the following effect be framed:‑‑---

Whether the appellant had entered into a fresh agreement of rent with the respondent after the death of her husband

11. I remand the case to the learned Rent Controller and direct that he should give an opportunity to both the parties to lead evidence on this point and then decide the case in the light of such evidence. The learned Rent Controller is directed to expeditiously dispose of the case. It will be appreciated if this case is brought to an end within three months.

A.A./Q‑2/R Case remanded

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