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First Rent Appeal No. 52 of 1987, decided on 19th February, 1987.

(a) Sind Rented Premises Ordinance (XVII of 1979)--

--S. 14(1)--Ejectment proceedings--Service notice--Notice sent to tenant at the demised premises--Tenant not denying that he was occupying said premises--Notice, held, was sent to tenant at correct address.

(b) Sind Rented Premises Ordinance (XVII of 1979)--

---S. 14(1)--Ejectment proceedings--Service notice--Notice sent to tenant by Registered Post A.D. --Acknowledgment receipt allegedly did not bear signatures of tenant--Effect--Landlady's statement in her affidavit -in-evidence that tenant was duly served with notice under S. 14 of the Ordinance was not questioned in her cross-examination and witness of tenant also not specifically denying that A.D. was not signed by tenant--Person signing written statement not appearing in Court as witness of tenant to prove averments contained therein--Notice, held, was proved to have been served on tenant in circumstances.

(c) Sind Rented Premises Ordinance (XVII of 1979)--

---S.14(1)--Retirement of landlord--Held, it was the renting out of premises of building after retirement or attaining the age of 60 years that disentitles a landlord from availing benefit of S. 14(1).

(d) Sind Rented Premises Ordinance (XVII of 1979)--

---S. 14(1), proviso--When a landlord who falls within specified class as mentioned in S. 14(1) is in possession of the building which he rents out after the happening of events mentioned therein, he would not be entitled to avail the benefit of S. 14(1).

(e) Sind Rented Premises Ordinance (XVII of 1979)--

---S. 14(1)--Enhancement of rent by landlord who is retired from service on superannuation would not tantamount to renting the premises and thus not covered by expression 'has rented out' as used in S. 14(1), proviso.

(f) Sind Rented Premises Ordinance (XVII of 1979)--

---S. 14(1)--Deposition of landlord about her age and that she had retired from Government service though not supported by documentary evidence but remaining unchallenged, held, would be sufficient to hold that she belonged to a class which was entitled to benefit of S. 14.

Badarudduja for Appellant.

S. Izhar Haider Rizvi for Respondent.

Dates of hearing: 18^th and 19th February, 1987.

JUDGMENT

This appeal is directed against the order, dated 30th November, 1986 passed by the First Class Civil Judge/ A.S.J./R.C., Karachi (South) under section 14 of the Sind Rented Premises Ordinance (hereinafter called 'the Ordinance') in respect of House on Plot No. 67-A, Block-6, P.E.C.H. Society, Karachi.

2. The facts leading to the filing of this appeal are that the respondent filed an application under section 14 of the Ordinance on 3-1-1986 alleging therein that in the disputed house, the appellant is her tenant on a monthly rent of Rs.2,000, excluding gas, electricity, water or other charges; that the appellant was occupying the demised house since April 1971 under the Rent Agreement, dated 27th March, 1971. At that time, the respondent was serving in T&T Department and was a Government servant. It was further averred therein that she had already attained the age of 60 years and retired from the Government service from the post of Engineering Supervisor (Phones) with effect from 1st July, 1982. The photostat copies of relevant pages of Pension Book issued from the said department to the respondent and the Retirement Order, dated 18-4-1982 were filed with the ejectment application and marked as Annexures 'A' and 'A/1' respectively. She claimed that she needed the house for her personal use and that she had no other house at Karachi, excepting the house in question. She claimed that being retired Government servant of more than 60 years of age she was legally entitled to have possession thereof as contemplated by section 14 of the Ordinance. It was also mentioned in the application that the appellant was also a persistent defaulter in payment of the monthly rent with the result that the rent with effect from December 1985 was due and payable by him. A notice under section 14 of the Ordinance was claimed to have been served on the appellant on 11-12-1985, by registered post A.D. The photo copy of the notice and the A. D. receipt were filed as Annexures 'B' and 'B/1' respectively. The cause of action was shown to have accrued to her, firstly, when she retired from Government service and, lastly, on 11-12-1985 when in spite of service of notice the appellant failed to vacate the said house.

3. The appellant resisted the ejectment application by filing a written statement through his attorney. It was, inter alia, pleaded therein that the application under section 14 of the Ordinance was not maintainable. It was alleged that the application was filed without serving the notice. With regard to the notice attached with the application, it was stated that it was not a legally valid notice. The averments made in the application regarding age, default and personal bona fide need were denied. It was claimed that the application was filed mala fidely as the appellant had not accepted her demand for increase of rent to Rs.5,000.

4. In support of the application, the respondent filed her own affidavit-in-evidence and produced the Annexures 'A' and 'A/1' to the application with a statement that the originals of both the above-referred Annexures were in her possession and can be produced, if required by the Court. She enclosed alongwith her affidavit-in-evidence the copy of the notice and postal A.D. and offered herself to crossexamination; whereas on behalf of the appellant one Shabbir Ahmed, his attorney, filed his affidavit-in-evidence. He, inter alia, deposed that the appellant was a tenant in respect of the demised premises since 27th March, 1971 and the agreement was being renewed orally from time to time with the rise in rent; that the respondent had not attained the age of 60 years and was not retired from Government service on account of age. He further deposed that the premises were rented out to the appellant at the rate of Rs.500 per month and after the expiry of the said agreement it was being renewed orally with enhancement of rent from Rs.500 to Rs.700, then Rs.1,000 and then Rs.1,500 and ultimately it was increased to Rs.2,000 in 1984. It was further deposed that the respondent wanted to increase the rent upto Rs.5,000 per month and threatened him (the deponent) to file case for personal need if the rent was not increased according to her wishes. He also deposed that since last 9/10 months certain persons were visiting the demised premises for the purpose of purchasing the same and that the respondent wanted to get the premises vacated on the false ground of personal need, otherwise she intended to sell it out.

The learned Rent Controller by his impugned order granted the ejectment application. This has led the appellant to file the present appeal.

5. Mr. Badarudduja Khan, Advocate, appearing for the appellant made the following submissions:

(i) That the notice under section 14 of the Ordinance was, firstly, not sent to the appellant at his correct address and, secondly, the post acknowledgement due (A.D.) Exh.0/2, does not bear the appellant's signatures nor was any evidence given to establish any relationship between the recipient of the notice and the appellant. Moreover, the postman was also not examined and hence the service of notice on the appellant remained unproved. The entire proceedings were thus, according to the learned counsel illegal and relied upon 1972 S C M R 251. The application for ejectment, he so urged, was actually made under section 15 and not under section 14 of the Ordinance inasmuch as the respondent had pleaded therein the default in payment of rent and her own personal bona fide requirement which grounds are not available under section 14.

(ii) That the enhancement of rent by the respondent after the date of her retirement or attaining the age of 60 years was tantamount to the disputed premises having been rented out afresh and hence the application was hit by proviso to section 14(1) of the Ordinance.

(iii) That consequent to the failure of the respondent to produce the original copies of Annexures 'A' and 'B' of the application, both her age as well as the date of retirement remained unproved. In this regard he referred to the authorities reported in 1981 CLC 1083 and 1982 C L C 318.

By referring to the rent receipts Exh.A/2/1 to Exh.A/2/8 he attempted to show as to how and when the rent was increased from Rs.500 per month to Rs.2,000 per month.

6. I have also heard Mr. S. Izhar Haider Rizvi, learned counsel for the respondent, and have carefully perused the lower Court record with the assistance of the parties' counsel.

A bare perusal of the notice, dated 11-12-1985 (Exh.0/3) as well as of the postal A.D. (Exh.0/2) makes it absolutely clear that the notice in question was sent to the appellant at the demised premises A viz. 67/A, Block-6, P.E.C.H. Society, Karachi. The learned counsel for the appellant has not denied that the appellant was actually not occupying the demised premises.

The contention of the appellant's counsel to the effect that the notice was not sent at the correct address is, therefore, without substance. Now returning to his other contentions that the A.D. did not bear the signatures of appellant and the effect of not examining the postman concerned, Mr. Rizvi the learned counsel for the respondent has invited my attention to the facts that the statement of the respondent in para. 6 of her affidavit-in-evidence to the effect that the appellant was duly served with a notice under section 14(1) of the Ordinance B has not been questioned in her cross-examination. Besides, the appellant's witness, Shabbir Ahmed, has admitted in cross-examination that the acknowledgement due is in the name of Taj Muhammad but he had then not specifically denied that it was not signed by the appellant. He had then further added that his younger brother used to appear in Court and he must have received the same. The person signing the written statement did not appear as a witness of the appellant and hence, the averments made in the written statement in this behalf remained unproved and unsubstantiated and no importance can be attached to the contents of the written statement. The facts of the instant case are distinguishable with the facts of the Supreme Court case reported in 1972 S C M R 251.

On the basis of the evidence referred to above, I hold that the service of the notice on the appellant has been duly proved. The contention of the learned counsel for the appellant is, therefore, devoid of force and it is accordingly repelled.

7. The next contention with regard to the application having been actually made under section 15 and 'not under section 14 of the Ordinance is, ex facie, unsustainable at this stage. It is pertinent to note here that an application was presented on behalf of the appellant for dismissal of the rent case on the ground that the plea of personal use and retirement from service as well as that of default in payment of rent. rendered the case unsustainable in law. This application was dismissed by the V.S.C.CJ/A.S.J./R.C., Karachi (South), by a separate order, dated 5-8-1986 with the following observations:-----

"The ground for eviction is clearly mentioned in para. 8 of the ejectment application, that the applicant is Government servant, he (she) has been retired from service and attained the age of 60 years, he (she) has no other house except the house in dispute. He (she) has already served the requisite notice as required under section 14(1) of the S.R.P.O:, 1979 upon the opponent. From the above circumstances it is clear that the application under section 14 of the S. R.P.0., 1979 is maintainable under the law. There is no merit in the application for the dismissal of application under section 14 of the S.R.P.O 1979 which is hereby dismissed. Put off to 7-8-1986 for cross."

This order of the Rent Controller was not assailed by filing an appeal by the appellant and hence, it became final. It was in this view of the matter that while cross-examining the respondent where an attempt was made on behalf of the appellant to cross-examine her in regard to the default, the learned lower Court disallowed him to do so for the reason that the decision already given in that behalf was not challenged by him. Moreover, the respondent, vide her objections to the appellant's application, dated 23rd July, 1986 for summary dismissal of the ejectment application, had abandoned the grounds of default and personal use. This fact has also been stated by the learned Rent Controller while recording the cross-examination of the respondent. The contention of the learned counsel for the appellant in this behalf is, therefore, ill-founded and needs no consideration. After the passing of the above order, dated 5-8-1986 it is not open to the appellant to urge this point at this stage. Consequently, this contention of the appellant also fails.

8. Now, I take up the next contention of the appellant's counsel with regard to the application for ejectment being hit by the proviso to section 14(1) of the Ordinance. It seems appropriate to reproduce herein the said proviso. It reads as follows:--------

"14(1) ..

"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."

9. The appellant's case is, as already stated, that he had entered into an agreement with the respondent after retirement from the service by increasing the rate of rent is patently misconceived. A bare reading of the above reproduced proviso, in the first instance, clear indicates it is the renting out of the premises of the building after the retirement or attaining the age of 60 years that disentitles a landlord from availing the benefit of section 14(1) of the Ordinance. In the instant case the building was admittedly rented out somewhere in 1971 and it is since then that the appellant has been continuously occupying the same as its tenant. There has been thus no fresh letting of the disputed premises after the retirement of the respondent in July 1982. In para. 5 of her affidavit she has specifically deposed 'I am a crippled lady, have already attained the age of 60 years retired Government servant, having no other house/property at Karachi ....".

10. The learned counsel for the appellant could not support his contention with reference to any authority that simply enhancement of rent, if at all, made by landlord who is retired from service on superannuation would be tentamount to renting out the premises. If the Legislature really so intended that the landlord would not be entitled to enhance the rent after retirement or attaining the age of 60 years etc. or that it would be covered by the expression 'has rented out' used in the proviso to subsection (1) of section 14 of the Ordinance. there was nothing in the way of the Legislature to so enact it specifically. It will be going too far to subscribe to such a view to the Legislature as sought to be contended by the learned counsel for the appellant. In my humble opinion what the Legislature has provided in the above-noted proviso is that if a landlord who falls within the specified class as E mentioned in section 14(1) is in possession of the building which he rents out after the happening of the events mentioned therein, he would not be entitled to avail the benefit of section 14(1) of the Ordinance.

11. The only contention which now remains to be dealt with pertains to the effect of the respondent's failure to produce the original copies of Annexures 'A' and 'A/1' of the application. The said Annexures 'A' and 'A/1' are the copies of the pension book and the relieving order, dated 18-4-1982 allowing the respondent to avail L.P.R. Here too, I do not find any force in the contention of the learned counsel for the appellant. In para. 3 of the ejectment application under section 14 it is specifically pleaded that she has already attained the age of 60 years and has been retired from the Government service. There is a further mention to the effect that the original of both the Annexures are in her possession and copy produced if required by the Hon'ble Court. Subsequently, in para. 4 of her affidavit-in-evidence the respondent clearly mentioned that she had already attained the age of 60 years and had retired from Government service from the post of Engineering Supervisor (Phones) with effect from 1-7-1982 as per retirement order and the pension book (Annexure 'A' and 'A/1'). Her statement in this behalf was not in any manner assailed or challenged in her cross examination. The averments made in the affidavit-in-evidence thus remained uncontroverted. In this view of the matter,, even if Annexures 'A' and 'A/1' to the application are, for the sake of arguments, not considered still her unchallenged deposition regarding age and retirement from Government service is sufficient to hold that she belonged to a class which was entitled to present an application under section 14 of the Ordinance. This contention, therefore, also fails.

Before parting with this issue, it may be mentioned that the counsel sought to support his contention with reference to a decision in 1982 C L C 318. That case, however, I am of the opinion, is distinguishable on its own facts. In that' case the landlord had simply relied upon a birth certificate from Khanpur Municipality without stating more in his affidavit.

11. Under the aforesaid facts and circumstances of the case and for the reasons given hereinabove. I uphold the impugned order of the learned Rent Controller and dismiss the appeal with no order as to costs.

12. Mr. Badarudduja requests for four months time to vacate the premises and relies upon the case of Younus v. Mrs. Hamida reported in 1982 C L C 580 in which Ajmal Mian, J, had granted four months time to the appellants to vacate the disputed tenement. I grant two months time to the appellant to vacate the premises subject to the condition that if he fails to vacate the tenement in question on the expiry of the two months period, the learned Rent Controller shall issue writ of possession against the appellant without any further notice to him.

M.B.A./T-7/K Appeal dismissed.