2016 PLP 148 (CLCN)

SYED MUHAMMAD FAROOQ SHAH, J.

Impugned is judgment dated 02.11.2015, passed by learned appellate court in F.R.A. No.58 of 2015, whereby the appeal was dismissed and ejectment of petitioner vide the order dated 31.3.2015 passed by the learned Rent Controller in Rent case No.14 of 2013 was maintained.

2. Succinct facts of the case in hand are that the respondent retired from his concerned department and is above the age of sixty years and needs demised shops to start his business, to earn livelihood as he shall open an electric shop to meet the expenses of his family, as such the respondent has no other shop except the said demised shops; hence the application for eviction has been filed under section 14(2), S.R.P.O., 1979, after serving notice upon the petitioner which was duly replied.

3. Arguments heard. Record Perused.

4. Mr. Iftikhar Javed Qazi, Advocate for petitioner has much emphasized on the point of law that where a landlord being already in occupation of his commercial, building/premises, cannot avail benefit of section 14 of Sindh Rented Premises Ordinance, in presence of specific bar contained in subsection (2) of section 14 of the Ordinance. It is argued by learned counsel that section 14 of SRPO (Special Provision) has a limited scope and relief can only be granted to specified category of landlords under peculiar facts, circumstances and subject to certain limitations and conditions as enumerated in the said provision of law and as such both the learned courts below ought to have minutely read and understood the said provision of law; they being duty bound to do justice in accordance with the codified law and have no jurisdiction or authority to give extended meanings or wider scope much more than actual extent scope sphere and ambit prescribed by the provision of law itself. Learned counsel for the petitioner has prayed to set aside the concurrent findings/judgments and orders of courts below and dismiss the Rent Application filed by the respondent No.3.

5. On the other hand, Mr. Samiullah Soomro, learned counsel for the respondent No.3 submits that the bare reading of section 14(2) of S.R.P.O., 1979 stipulates that the Rent Controller shall, on application filed by the landlord under the said provision, order eviction of the tenant from the building in a summary manner by using such powers as may be necessary so that the landlord/persons specified in subsection (1) of section 14 of the Ordinance should be able to get the possession of building owned by him without entering into controversial issues like question of "good faith" or regular trial of an ejectment case. Learned counsel for respondent No.3 strongly supported the judgment of appellate court and order of eviction passed by Rent Controller under section 14 of Sindh Rented Premises Ordinance, 1979, as well. By advancing his submission learned counsel submitted that the respondent has successfully proved that he attained the age of sixty years and that the demised shops are required for his personal use.

6. Admittedly, the landlord owned and possessed residential cum commercial building, having two demised shops at the ground floor. Subsection (2) of section 14 cannot be read in isolation from subsection (1) for there has to be a nexus between personal use for which eviction is sought and premises owned and possessed by the landlord is the same building and landlord is not possessing any other building in some other locality referred to in subsection (2), therefore, the existence of other building would be irrelevant for the purpose of subsection (2), of section

14. The demised shops are situated on the ground floor and the remaining portion of the building is for residential purposes and is in possession of landlord, therefore, he needs the premises in question which can reasonably meet his personal requirement.

7. Before proceeding further, it would be advantageous to reproduce herein- below the relevant provision i.e. section 14 of S.R.P.O., 1979:- "

14. Delivery of vacant possession.

(1) Notwithstanding anything contained in this Ordinance or any other law for the time being in force, the landlord of a building who is a widow, or a minor whose both parents are dead or a salaried employee due to retire within the next six months or has retired or a person who is due to attain the age of sixty years within the next six months or has attained the age of sixty years, may, by notice in writing, inform the tenant that he or she needs the building for personal use and require him to deliver vacant possession of the building within such time as may be specified in the notice, not being earlier than two months from the receipt thereof: 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. (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. (3) Where the tenant has failed to deliver the possession of the building under subsection (1), the Controller shall, on application by the landlord in this behalf, order eviction of the tenant from the building in a summary manner, by using such force as may be necessary."

8. A plain reading of aforementioned provision transpires that the words "in good faith" has been omitted by the legislature and even otherwise keeping in view the peculiar facts and circumstances of the case, subsection (2) of section 14 is not attracted to as the landlord is not in possession/occupation of a building owned by him in any other locality excepting the residential building where the demised shops are situate. A perusal of record reflects that respondent No.3 is an old person of more than sixty years of age; he has been residing on a floor of same building where the disputed premises is situate; the petitioner is using the demised premises as commercial one; that required notice under section 14 of the Ordinance was duly served upon the petitioner before filing the Rent Application under section 14; that the purpose for which the demised premises is required is partly commercial and partly residential and landlord/respondent is not in occupation of commercial premises owned by him in any locality. The object of section 14 ibid seems to save the landlord from rigorous of lengthy litigations and to put him into an enquiry as to good faith of his plea of requirement of premises for personal use and to put him in possession at an earliest so that he may have a taste of physical possession of his own property.

9. Position which reflects from bare reading of section 14 of S.R.P.O., 1979 is that said provision override the other provisions of the Ordinance and said provision has conferred a right on a landlord of building who has retired or a person who is due to attain the age of sixty years within the next six months or has attained the age of sixty years, to inform the tenant by notice, in writing that he or she needs the building for personal use and may require him to deliver vacant possession of the building within such time as may be specified in the notice not being earlier than two months from the receipt thereof. The intent of the legislature would be that a person gets the possession of the building/premises owned by him without entering into controversial question of "good faith" or the regular trial of an ejectment case. In the case of Abu Bakar and another v. Abdul Haleem (PLD 1991 SC 302) the Hon'ble Supreme Court held that persons specified in section 14 should be able to get the possession of building, owned by them without entering into controversial issues like issue of "good faith" or the regular trial of an ejectment case.

10. Now the question which requires determination is that as to whether concurrent findings of courts below are not based on correct analysis of evidence and appreciation of principles as laid down by the superior courts and both judgments and orders are the result of non-reading and misreading of evidence. Obviously, the respondent has not rented out the building after he has retired or attained the age of sixty years or that he is in occupation of building owned by him in any other locality, therefore, landlord/respondent is not disqualify to seek eviction of tenant under section 14 of S.R.P.O., 1979. In the case of Abdul Razzak and others v. Muhammad Aslam and others (1995 SCMR 201) it was held that three shops were required for storing the material while fourth shop was to be used as an office, the Hon'ble Supreme Court held that in concurrent findings of facts no misreading was pointed out that landlord required all the four shops to run his business recorded by the courts below, therefore, ejectment of tenant from the demised shops was maintained.

11. Insofar as the assertion of petitioner in respect of plea that "Pagri" being a reality is recognized but the counsel has failed to show any evidence available on the record that any such "Pagri" was paid and if at all it had been paid, still respondent cannot be debarred from instituting eviction proceedings as question of applicability of such plea of "Pagri" under the S.R.P.O., 1979 is having, no legal sanctity and the same is not recognized by the said Ordinance, therefore, the trial court or the appellate court were not expected to give decision on metaphysical or hypothetical question without reference to the provisions of statute applicable in the case in hand.

12. In view of whatever stated above, suffice it to say that there cannot be any cavil to the proposition that the concurrent findings recorded by the two Courts below after careful and elaborate consideration can be disturbed by this Court; moreso, the evidence in the case in hand was duly taken into consideration by the appellate court and it was not a mere affirmation of the findings recorded by the Rent Controller as the appellate court discussed the evidence of parties and rightly upheld the findings of learned Rent Controller. There is neither a misreading of evidence nor appraisal of evidence by the trial court appears to be perverse so as to call for interference by this court in its extraordinary Constitutional jurisdiction under Article 199 of the Constitution, more particularly, Constitution Petition may not be considered a substitute of second appeal against the orders passed in FRA. Resultantly, instant petition having no merits for consideration is dismissed. ZC/M-87/Sindh Petition dismissed.