1989 PLP 1998 (CLC)

Date of hearing: 24th February, 1988. This appeal arises from the order of the learned Vth Senior Civil Judge/Rent Controller (West) Karachi, passed in Rent Case No.124G of 1986 whereby he has allowed an application filed under section 14 of the Sind Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance) and ,directed the appellant to hand over the vacant possession of the shop in question within 00 days from the date of order.

2. The relevant facts giving rise to this appeal are these. The respondent filed an application under section 14 of the Ordinance against the appellant in respect of Shop No.2 situated on Plot No.29, Gali No.6, Ali Garh Colony Karachi (hereinafter referred to as the demised premises) on the sole ground that he has crossed the age of 60 years. The appellant contested the said proceedings by riling written statement stating, inter alia, that the respondent had attained the age of 60 years somewhere in the year 1972 but did not avail of the benefit of section 14 of the Ordinance on account of having attained the age of 60 years. He also pleaded mala tide on the part of the respondent by contending that earlier also he had adopted ejectment proceedings against him under section 1S of the Ordinance but without success.

3. The parties examined themselves only in support of their respective case as pleaded by them. During his cross‑examination the respondent admitted as under:‑‑ "There are in all four shops in the building in question. All the four shops are on rent. It is correct that I had rented out one shop about two years back but that shop was already in possession of the same person as sub- lettee as the original tenant and I accepted him as tenant by changing receipt in his name." The learned Rent Controller by his impugned order allowed the application as stated above The relevant extract from his impugned order is reproduced below:‑ "The fact that the applicant has changed the receipt with regard to the tenancy in respect of the one of the shop in the same building from the previous tenant in favour of sub‑lettee does not mean that he has rented out the shop to any person. There is no dispute with regard to the fact that the sub‑lettee was already in the possession of the shop and the applicant has only changed the receipt of rent in his favour, There is neither any allegation nor anything on record to show that the applicant had never taken possession of the said shop from his tenant or he delivered back the possession of the said shop to the sub‑tenant. Had the applicant got the possession of the said shop from his tenant and had he delivered back possession to the new tenant after attaining the age of 60 years, then only the applicant could have been deprived of the benefit of section 14 of the Sind Rented Premises Ordinance, 1979."

4. I have heard the learned counsel for the parties. Mr. Muhammad Jawaid Alam, learned counsel for the appellant after drawing my attention to the above reproduced admission made by the respondent during his cross‑examination, vehemently urged that the case of the respondent is hit by the first proviso to section 14(1) of the Ordinance. In his submission having rented out the said premises to a tenant after he had attained the age of 60 years, the respondent was no more legally entitled to avail the benefit of section 14(1) of the Ordinance. He drew my attention to the definition of the word "tenant" as given in clause (j) of section 2 of the Ordinance in support of his contention that the change of receipt in favour of the alleged sub‑lettee was in fact renting out of the said shop to a new tenant. By accepting the alleged sub‑lettee as his tenant the respondent had lost his right of invoking the provision of section 14 of the Ordinance.

5. Mr. Dewan Bashir Ahmad, learned counsel for the respondent adopted the same line of argument which prevailed with the learned trial Court, namely, that the shop was not vacant when the receipt was changed in favour of the sub lettee. The law contemplates that if there is a premises vacant and it has been let out after the landlord's becoming of over 60 years of age and then alone he would lose his right to avail of the benefit of section 14 of the Ordinance. To rent out the shop by changing of receipt in favour of a sub‑lettee, according to learned counsel, did not tantamount to letting out a premises since it was not voluntarily act on the part of the respondent/owner to let out the same to the sub‑lettee. The counsel stressed that the respondent was forced by circumstances to let out the premises to the sub‑settee. If the respondent had not changed the rent receipts of the premises he could not have come in possession thereof otherwise than through process of law. He also urged that the respondent had in all fairness spoken the truth and then the appellant did not examine the said sub‑lettee to prove his case. 6. 1 have given my earnest consideration to the above submissions made at the bar and I am clearly of the opinion that the contention of the learned counsel for the appellant is not without substance. In the first proviso to section 14 (1) of the Ordinance, the legislature has in clear terms provided that nothing in this subsection shall apply where the landlord had 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. The argument of the learned counsel for the respondent cannot be accepted on the plain reading of the above reproduced first proviso to section 14(1) unless the word "voluntarily" or "vacant" is read therein. It cannot obviously be done without doing violence to the well‑established cannon of construction of statutes that if the language of the provision is clear and unambiguous it should be accepted as such without any hesitation or demur. The respondent in his cross examination it is worthy to note, has himself deposed "it is correct that 1 have rented out the premises" (underlined for emphasis). The sub‑lettee had no legal right in the premises in his occupation unless he was recognised or allowed to stay in the premises as a tenant by the respondent either by taking possession or re delivering the vacant possession to him or by changing the receipt, as he has done. Considering the case from every possible angle I have reached the conclusion that the respondent has rented out one of his shops in the building after he had attained the age of sixty years and hence the benefit of summary eviction of the tenant under section 14(1) was not available to him. The ejectment application made by him under section 14(1) of the Ordinance was thus not maintainable in law and the learned Rent Controller patently committed an error in allowing the same and ordering the eviction of the appellant.

7. For the foregoing reasons the appeal is allowed and the impugned order as is set aside. The parties are, however, left to bear their own costs. H.B.T./S‑427/K Appeal allowed.