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First Rent Appeal No.448 of .1986, decided on 26th April, 1987;

---S.14(1)(2)--Eviction of tenant on ground of retirement of landlord--Words "occupation" and "building"--Connotation of Word "occupation" even if not defined in the Ordinance, was neither to be taken in its ordinary meaning nor could be considered in any limited sense, but, would connote more. than mere possession which might be actual or constructive--Where portion of building of owner was under occupation of his sister on his behalf, such portion, held, would come under definition of word "building" as contemplated n S.1-1(2) of Ordinance and landlord in circumstances would not be entitled to avail remedy under S.14(1) for eviction of tenant.--[Words and phrases].

1985 S C M R 291 ref.

Syed Ishtiaq Ali for Appellant.

Mahmood Ahmad for Respondents.

Date of hearing: 23rd December, 1987.

This First Rent Appeal is directed against the order dated 30-4-1985 passed by the IIIrd Senior Civil Judge Rent Controller, Karachi, whereby he allowed the eviction application filed by the respondent No.1 and directed the appellant to hand over the vacant possession of the premises in dispute to the respondent No.1 within a period of ninety days from the date of the order.

The facts leading to the filing of the above appeal are that the Respondent No.1 is the owner and landlord of a House No.II-A, 5/7, Nazimabad, Karachi. The case as set out in the eviction application is that the ground floor thereof was let out to the respondent No.2 at the monthly rental of Rs.250 which was mutually increased to Rs.350 per month. It was the case of the respondent No.1 that respondent No.2 had sublet the premises in dispute to the appellant without his permission. The Respondent No.1 served notice dated 26-2-1985 as required by the provisions of section 14 of the Sind Rented Premises Ordinance, 1979 (hereinafter referred as the Ordinance). As the appellant and the respondent did not vacate the premises in dispute he filed the eviction application. The appellant and respondent No.2 resisted the eviction application. The appellant pleaded that the ground floor of the house in dispute is under his tenancy but the first floor is in occupation of the respondent No.1 through Mst. Hasina Aijaz who is sister of respondent No.1.

Before the Controller, the parties led their, respective evidence, and on appraisal thereof he decided both the issues in favour of the respondent No.1 and consequently allowed his application for ejectment by a considered order dated 30-4-1986. As already noticed, respondent No.1 had in fact retired from service and attained the age of 60 years before the date of the eviction order.

The respondent No. 1 at the material time was posted as the Director (BPS-19), Literary & Mass Education Commission, Ministry of Education Islamabad. In anticipation of his retirement (which took place with effect from 2nd June, 1985), he moved an eviction application vo.2204/1985 (new No.2058/1985) on 30-5-1985 under section 14 of the Sind Rented Premises Ordinance, 1979 for eviction of the appellant and the Respondent No.2. The eviction application was resisted on behalf of the appellant in various pleas. On the pleadings of the parties, the Controller framed only two issues, the first being whether the respondent No.1 retired on 2-6-1985 and simultaneously he has also attained the age of 60 years and the second being whether the applicant requires the premises for his personal bona fide use. What should the order be.

Mr. Syed Ishtiaq Ali, the learned Counsel for the appellant has contended that the learned Controller has gravely erred in. law by not considering the admitted position that the respondent No.1 is in possession of first floor of the said house and as such the application is not maintainable.

On the other hand Mr. Mahmood Ahmad' the learned Counsel for the respondent No.1 has submitted that the respondent No.1.is not in possession of the first floor premises and the application is not hit by the provisions of subsection 2 of section 14 of, the Ordinance.

The respondent sought eviction of the appellant from the premises in dispute as he retired from, Government Service and he also attained 60 years age on 2-6-1985: It is an admitted position that the building on Plot No.II-A, 4/7, Nazimabad, Karachi consists of two floors. It is also an admitted position that the ground floor is in occupation of the appellant and the first floor is in occupation of Mst. Hasina Aijat who is the sister of the respondent. I have perused the eviction application. I find that the respondent did not disclose in his eviction application that his sister is in occupation of the first floor. The appellant filed written statement wherein he pleaded that the first floor is in occupation of the Respondent through Mst. Hasina Aijaz. The Respondent filed affidavit-in-evidence. I have perused the same. A perusal thereof shows that the respondent did not disclose therein that the first floor is in occupation of the respondent through his sister Mst. Hasina Aijaz. The respondent admitted in his cross-examination that the building where the premises in question is situated is a double storeyed. The respondent admitted in his cross-examination that the first floor of the building where the disputed premises in question is situated is in occupation of his sister on his behalf.

It is advantageous to reproduce subsection 2 of section 14 which reads as under:-

"(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."

A perusal of the above provisions shows that 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 my locality. Now if subsections (.1) and (2) of section 14 are 'read in conjunction with each others it would appear undoubtedly that benefit of subsection (1) will not be available to the landlord, if he is already in occupation of a building which is owned by him in any locality. The expression 'occupation' has not been defined in the Ordinance. It was not to be taken in its ordinary meaning. The word 'occupation' connotes more than mere possession, which may be actual or constructive. The word 'occupation' cannot be construed in any limited sense. The word 'occupation' has not been used in any restricted sense in subsection (2) but will include the ease of an owner on whose behalf his sister is occupying.

Section 14 fell for consideration in 1985 S C M R 291, where it was exhaustively analysed and it was observed:----

"Similarly he cannot take advantage of the beneficial provisions of section 14 if he is in occupation of another building in the same locality, as provided by subsection (2) of the said section and in that case too he must bring his action by means of the normal procedure and subject to the same limitations as are applicable to every landlord."

In my opinion the first floor of the building which. is in occupation of the respondent comes under the definition of the word 'building' as contemplated in subsection (2) of section 14, therefore, eviction application is clearly hit by section 11(2), and the respondent is not entitled to avail the remedy under section 14(l).

In view of what has gone above, I accept this appeal, set aside ' the impugned order passed by the learned Controller against the appellant and dismiss the eviction application filed by the respondent. In the circumstances of the case, there will be no order as to costs.

H.B.T./A-187/K Appeal accepted.

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