1983 PLP 1304 (CLC)

This appeal has been filed under section 21 of the Sind Rented Premises Ordinance, 1979 whereby the appellant seeks to challenge the order passed by the Rent Controller, Karachi in Rent Case No. 1352 of 1981 on 30th September, 1981.

1. The brief facts of the case are that the appellant is the tenant of the respondent in respect of shop No. 4-D, 68/7; Landhi Township, Karachi on a monthly rent of: Rs.

55. The respondent who is the land lord of the above-mentioned property and resides on the first storey thereof filed an application in 1978 for ejectment of the appellant on the ground of default in payment of rent, causing damage to the property and making unauthorised alterations therein. The said case was filed under section 13 of the then West Pakistan Urban Rent Restriction Ordinance, 1959 and. was registered as case No. 4520/1978. The said application was dismissed by the learned Rent Controller by order passed on 5th December, 1981. In the meantime Sind Rented Premises Ordinance of 1979 came into force with effect from 21st November, 1979. The respondent land lord pursuant to the provisions of this new Ordinance having proceeded on L. P. R, served notice dated 29th March, 1980 upon the appellant/ tenant informing latter that he would be requiring the shop in dispute in occupation of the appellant for his own personal use to carry on his business. He accordingly called upon the appellant to vacate the said shop within the stipulated period after receipt of the said notice. The appellant was warned, that in case of his failure to do so the respondent would be constrained to take possession through the Court of law. The appellant in his reply dated 13th May, 1980 stated that the notice had been given with mala fide intention and that the shop was not required by the landlord for carrying on his own business. It was further stated that the respondent had let out another shop i.e. shop No. 2 after he had already proceeded on L. P. R. on 15th December, 1979. The bona fides of the respondent was also challenged. The respondent then sent a reply to the appellant and thereafter on 16th March, 1981 filed Rent Case No. 1352/81, against the appellant by moving an application under section 14 of the above-mentioned Ordinance of 1979 on the ground that he had served a notice as required under section 14 when he proceeded on leave preparatory to retirement with effect from 15th December, 1979, and that he retired on 7th October, 1980, has no other shop of his own in his possession and that he wanted to do his own business in it. The respon dent filed his written statement/objections in which it was pleaded that the respondent entered into agreement of tenancy of a bigger shop No. 2 with one Syed Zamiruddin on 17th January, 1979 and that after entering into such agreement he gave the notice dated 29th March, 1980 to the appellant. It was further pleaded that object behind these proceedings was to extract tore rent from the appellant for which purpose he had filed earlier ejectment case No. 4520/78, under section 13 of the then West Pakistan Urban Rent Restriction Ordinance of 1959. Certain other pleas were also taken in the objections filed by the appellant in the trial but the same were not pressed at the time of arguments before this Court.

2. Before the learned Rent Controller the respondent/landlord filed his own affidavit in proof of the averments made in the ejectment applica tion. . It was deposed by him that during the period he had proceeded on L. R. P. he served statutory notice under section. 14 of the Ordi nance upon the appellant, the same has been produced as annexure "F". In proof of the fact that he retired from the service on 7th October, 1980 copy of the, order has been produced as annexure "E'". It was further stated by the respondent-landlord in the affidavit filed by him that he wants to run his own business in .the disputed premises after his retirement from service. The respondent was allowed to be cross-examined, by the counsel for the appellant. During his cross-examination it was expressly stated by the respondent that he has no other shop of his own where he could do his business and that he has already started his cycle business in a shop which belongs to. his son. To a suggestion made in the cross-examination the respondent further deposed that it was incorrect that he had filed the case under section 14 in order to pressurise the appellant to enhance the rout. It may also be mentioned here that the respondent, produced a copy of the agreement of tenancy dated 17th January, 1979 between him and Syed Zamiruddin in respect of Shop No. 2 in his building. This document is marked as annexure "G". On the other hand the appellant examined himself and also produced Abdul Ghafoor and Naeem Ahmed as witness on his behalf. The appel lant in his own affidavit deposed that the respondent had earlier filed ejectment case No. 4520/78, against him under section 13 which was dis missed on 5th December, 1981 copy of order was produced. It was also admitted by the respondent that he had also filed another ejectment case No. 1.673/81, against Syed Zamiruddin in respect of Shop No.

2. According to the respondent the ejectment case filed against Syed Zamiruddin, was compromised on the said tenant having enhanced the rent for the said shop. It was stated by the appellant that the respon dent does not need the shop in question for his own bona fide use or in good faith and that he is already running the cycle business in Shop No. 184, near Bismillah Masjid Landhi, Karachi. In cross-examination the appellant admitted that the shop in which the respondent is carrying on business is not owned by the respondent and has been taken on rent by him while the shop in which the appellant is doing business is bigger than the one in which the respondent is working. The appellant also admitted that when the respondent let out shop No. 1 to him and shop No. 2 to Syed Zamiruddi.n, he (the respondent) was then still in service. The appellant's witness Abdul Ghafoor in his affidavit admitted that the respondent-landlord had been doing business since about a year near Bismillah Masjid and that he himself sits in the said shop. In the cross examination he stated that he could not say as to which shop is better for cycle business. The other witness examined by the appellant namely Naeem Ahmed, deposed in his evidence the same facts as stated by Abdul Ghafoor. In his cross-examination he admitted that the shop where the respondent works is on rent with him.

3. In the light of the above evidence the learned counsel for the appellant contended: (i) That the respondent having let out the shop No. 2 on 17th January, 1979 to Syed Zamiruddin was not justified to have served notice under section 14 in March, 1.980 .as according to the learned counsel the respon dent knew that he was proceeding on L. P. R. on 15th December, 1979 and thereafter was to retire. According to the learned counsel the mala fides of the respondent/ landlord is evident from the fact that he had filed ejectment case against Syed Zamiruddin but subsequently withdrew that case on enhancement of the rent by the tenant. (ii) It was also contended that the respondent had filed earlier eject ment case No.4520/78 against the appellant for his ejectment on the ground of default in payment of rent, damage to property and for making additions and alterations in the property under section 13 of the then West Pakistan Urban Rent Restriction Ordinance, 1959 which case was dismissed on 5th December, 1981. The inference which the learned counsel sought to draw from the above facts was that the application for ejectment moved under section' 14 against the appellant was motivated and the sole object of the respondent/landlord was to get the rent enhanced.

4. The above submissions made by the learned counsel however cannot succeed. In the first instance it would be noted that the Shop No. 2 was let out by the respondent to Syed Zamiruddin on 17th January, 1979 much prior to 21st November, 1979 when Sind Rented Premises Ordinance, 1979 cam into force. The said Ordinance, 1979 having no retrospective effect, the plea that in January, 1979 shop No. 2 had been let out as stated above would be no bar to the right of the respondent invoking the provisions section 14 to seek ejectment on a cause of action which arose when be pro ceeded on L. P. R. on 15th December, 1979, served a notice on 29th March, 1980 under section 14 giving the necessary intimation and calling upon the appellant to vacate the premises and thereafter on 7th April, 198 when the respondent actually stood retired. The present ejectment case under section 14 was filed on or about 15th March, 1981. This objection raised on behalf of the appellant therefore fails. The other ground taken by the learned counsel for the appellant in support of the appeal is two-fold. Firstly, it was urged that the respondent is in occupation of rented premises in which he is carrying on business and that the requirement of the landlord could not be described as bona fide as there are no compelling reasons to dislodge the appellant from the pre mises where he is earning his livelihood. Secondly, it was contended that the respondent is already in occupation of upper story of the same building and that though it was a residential tenement the respondent shall be deemed to be in occupation of a building owned by him in the same locality and thus debarred from moving the Rent Controller under section 14 of the above-mentioned Ordinance of 1979. Reliance was placed by the learned counsel for the appellant on subsection (2) of sec tion 14 which reads as follows :- The landlord shall not be entitled to avail the benefit of sub-section (1) if he is in occupation of a building owned by him in any locality."

5. As regards the arguments that the requirement of the landlord was not bona fide it would be seen that under subsection (1) of section 14 the plea of want of bona fides is irrelevant. Once the landlord succeeds to establish the requisite laid down in section 14 (1) and it is found that he is not otherwise debarred to get relief under provisions of section 14, it is not open to the tenant to take a plea that the requirements of the landlord are not bona fide and reasonable. This conclusion is fortified by comparison of language of subsection (1) of section 14 and subsection (2) (viii) of section 15. 1 am fortified in reaching the above conclusion by opinion delivered in the case of Wasi Muhammad v. Hameeda (P L D 1981 Kar. 794) by a learned Single Judge of this Court. It would be important to note here also the fact that the legislature has taken care of the eventuality where a landlord obtains the possession of-a building under section 14 but releases the same to any other person other than the previous tenant or puts it to a user other than personal use within one year of such possession. It has been expressly, provided by. enacting section 15-A which has been inserted by Sind Rented Premises, Ordinance No. II of 1980, that such a landlord shall be punishable with fine which shall, not exceed one year's rent of the building or the premises as the case may be. Reference may be made to the case of Amirdin Allah Diita v. Adamji Abdullah (1969 S C M R 131). In that case an application was filed under section 13 (2) (vi) of the then West Pakistan Urban Rent Restriction Ordinance, 1959 on the ground that landlord desired to demolish the old building to cons truct a new one for installation of printing press. Repelling the conten tion that the respondent's requirement as abovementioned was neither reasonable nor bona fide observed as follows : - "The argument that the respondent's requirement of the new building was neither reasonable nor bona fide was not relevant to the disposal of the ejectment petition filed under section 13 (2) (vi) of the Ordinance aforesaid. The penal provisions contained in subsection (5) of section 13 of the Ordinance afford an adequate safeguard against a landlord acting in bad faith." It would be noted that the provisions of subsection (5) of section 13 referred to by the Honourable Supreme Court in the above-cited case pro vided a penalty of the same nature as laid down in section 15-A added by the Sind Ordinance No. II of 1980. 6: Reference may also be' made to the case of Muhammad Butt v. Barkat Ali (N L R 1979.5 C 720) where also the Honourable Supreme Court laid down the following principle: - It was also submitted that there is evidence to the effect that the respondent on account of his meagre salary and no savings, was not in a financial position to carry out the reconstruction of the shop. If it be so and the respondent in fact does not reconstruct the shop, the ground on which he has procured the ejectment of the petitioner, the penal provisions of subsections (5) and (6-A) of section 13 exist to protect the interest of the tenant."

7. As regards the second objection raised that the landlord was in occupation of a residential premises on the first floor would debar the landlord from seeking ejectment in view of the embargo imposed by sub section (2) of section 14, it would suffice to observe that a similar plea was raised in the case of Abdul Majid v. Mst. Naimun-Nisa (P L D 1981 S C 118) and while repelling the said objection the Honourable Supreme Court observed :- "The learned counsel contended that admittedly the landlady owned and possessed a residential premises in the same locality and therefore, the benefit of a summary eviction under subsection (1) of section 14 was not available to her The wide meaning sought to be put by the learned counsel to sub-section (2) would negate the very intent of the Legislature which is to give the benefit to certain class of persons to obtain summary eviction for personal use only if the other building owned by the landlord was in fact not put to such use or capable of being put to such use for which purpose eviction is sought, the existence of such other building would be irrelevant for the purpose of sub section (1) of section 14."

8. The upshot of the above discussion is that there is no merit in this appeal and the same is liable to be dismissed as such. The appeal was disposed - off by -a short order passed today which reads as follows :- "For reasons to be recorded separately the appeal is dismissed. The appellant however is granted four months time to vacate the pre mises provided he deposits rent regularly each month during this period. In case of default in deposit of rent for any month or not vacating the premises on the expiry of the above-mentioned period, writ of ejectment would be issued without prior notice" The above are the reasons for the above-mentioned short order. In the circumstances of the case there will be no order as to costs. K. M. A. Appeal dismissed.