1991 PLP 500 (MLD)

The facts of the case briefly stated are that Zafarullah Khan the respondent herein was inducted as the tenant of the premises bearing NoA-838, First Floor of a building in Block-12, Federal-B Area, Karachi from First January, 1977 through an agreement executed on 13-12-1976: The rent was agreed to be Rs.500 per month. Later on rent by mutual consent it was increased to Rs.600 per month. After about two years Muhammad Abdul Razzak, the appellant called upon his tenant, Zafarullah Khan to vacate the premises. as he needed it for his personal bona fide use. In June, 1981 Zafarullah Khan vacated the premises in question and handed over its possession to the landlord after obtaining an undertaking from him. It appears that in spite of the written undertaking given by the said landlord to the tenant that he needed the premises for his personal bona fide -use he before the expiry of a year let it out to some one else. The tenant thereafter addressed two notices to the landlord intimating him of the breach of undertaking. Since his notices remained unreplied Zafaruilah Khan filed an application under section 15-A of the Sindh Rented Premises Ordinance, 1979 and prayed that the landlord be directed to pay one, year's rent calculated at the rate of Rs.600 per month to him as a penalty as he could not let out the premises to some other tenant.' The landlord resisted the application mentioned hereinabove and pleaded that as no relationship of landlord and tenant existed between the parties and action under section 15-A of the Sindh Rented Premises Ordinance, 1979 was not competent the application filed by him was not maintainable. The Rent Controller on the basis of pleadings of the parties formulated the following points for determination: -- (i)Whether, the opponent relet out the disputed premises after taking over possession from applicant and is liable to pay penalty as provided under (ii) What should the order be? The applicant (tenant) filed his affidavit-in-evidence and produced certain documents and examined one Feroz Ahmed as his witness. The landlord did not participate further in the proceedings and his side was closed. The Rent Controller after hearing advocates for the parties held that the landlord had in fact let out the disputed, premises after the tenant had put him in possession of the same and was liable to pay the penalty as provided by section 15-A of the. Sindh Rented Premises Ordinance, 1979. He accordingly directed, the landlord to pay him the penalty as mentioned hereinabove. The present appeal has been filed by the landlord impugning that order. Mr. Munir-ur-Rahman; Advocate appearing for the appellant contended that as the respondent Zafarullah Khan tenant had voluntarily without the intervention of the Rent Controller handed over the possession of the premises to the appellant the Rent Controller had no jurisdiction to entertain and decide application filed under section 15-A of the said Ordinance. Mr. Nafees-ur-Rehman, Advocate appearing for the respondent contended that a Rent Controller is competent under section 15-A of the said Ordinance to penalise the defaulting landlord and to restore the possession of the Rented Premises to the original tenant if the premises a.;; not occupied by him even though the premises is vacated by the tenant without any order from a Rent Controller by an agreement on the ground contained in section 15(2)(vii) of the Ordinance. The only point that needs consideration in this appeal is whether a Rent Controller is competent to initiate and decide proceedings under section 15-A of the Sindh Rented Premises Ordinance, 1979 in a case where landlord obtains possession of a building or premises on the basis of an agreement reached with the tenant without obtaining any orders of possession from the Rent Controller. Section 15-A of the Sindh Rented Premises Ordinance, 1979 is reproduced . "15-A. Where the landlord who has obtained the possession of a building under S.14 or premises under clause (vii) of S.15, relets the building or premises to any person other than the previous tenant or puts it to a use other than personal use within one year of such possession. (i) he shall be punishable with fine which shall not exceed one year's rent of the building or the premises as the case may be payable immediately before the possession was so obtained. (ii) the tenant who has been evicted may apply to the Controller for an order directing that he shall be restored to possession of the building or the premises, as the case may be, and the Controller shall make an order accordingly." The proceedings under the section mentioned hereinabove can be initiated against the landlord as the plain reading of that section indicates only when he has obtained possession of a building under section 14 or premises under A clause (vii) of section 15 of the Ordinance and relets building or premises to any person other than the previous tenant or puts it to a use other than personal within a period of one year of obtaining such possession. It is necessary to examine the scope of section 14 of the Sindh Rented Premises Ordinance, 1979 to appreciate the above contention. Special' provision has been made in subsection (1) of section 14 of the Sindh Rented Premises Ordinance, 1979 for obtaining vacant possession of a premises in case it is owned by a widow or an orphan minor or a salaried employee about to retire within next six months or has retired or is due to attain age of sixty years within next six months or has already attained the age of sixty years. Such category of landlords can call upon the tenant to deliver vacant possession of the building within such time as may be specified in the notice not being less than two months from the date of receipt of that notice. In such cases it is expected that the tenant would surrender the vacant possession to such landlord without going through the process of litigation before the Rent Controller. In case a tenant fails to deliver possession of the building under subsection (1) of the section 14 of the said Ordinance landlord can always apply for eviction of the tenant from the building in a summary manner. The Rent Controller has also been authorised in such cases to use such force as maybe necessary to achieve the object. It will thus be noted that delivery of vacant possession of a building in such cases can be obtained either directly from the tenant without intervention of the Rent Controller or through an order of eviction passed by a Rent Controller. In cases where a landlord obtains possession of a building either on the basis of a notice issued by him or in execution of the order of eviction passed by the Rent Controller under section 14 of the Sindh Rented Premises Ordinance, 1979 an application under section 15-A'of the Sindh Rented Premises Ordinance, 1979 will be competent in the event of landlord not using the premises for his own use. Normally a tenant can only be evicted from the rented premises in accordance with the provisions contained in the Sindh Rented Premises Ordinance, 1979 as provided by its section

13. In case where a landlord seeks eviction of the tenant otherwise than in accordance with the section. 14 of the said Ordinance he can only do so by filing an application to the Controller under section 15 thereof. A tenant can only be evicted from the rented premises on one or more grounds mentioned under subsection (2) of section 15 of the' Ordinance. One of such grounds as is contained in subsection (2), clause (vii) of section 15 enables a landlord to obtain eviction of his tenant of the premises if he requires the premises in good faith for his use and occupation or use of his spouse and any of his children. Section 15 unlike section 14 of the Sindh Rented Premises Ordinance does require the tenant to part with possession of the premises on demand without any orders of the Rent Controller. It is only in a case where ?landlord obtains possession of premises under clause (vii) of section 15 of the Sindh Rented Premises Ordinance, 1979 and relets such premises to any person other than the previous tenant or puts it to use other than his personal use within one year of such possession that action can be taken against him under section 15-A of the Sindh Rented Premises Ordinance, 1979. Such action as is apparent from the very wording of that section can only be taken in case of default as made by a landlord when possession of the premises is taken under section 15 of the Ordinance which can only be obtained under orders of eviction passed by the Rent Controller. In the present case admittedly the tenant had on his own and on demand by the landlord handed over the vacant possession of the premises in question to the, landlord as he claimed to be needing it on the ground contained in subsection t (2), clause (vii) of section 15 of the Sindh Rented Premises Ordinance, 1979. Action under section 15-A of the Sindh Rented Premises Ordinance, 1979 could not have therefore been taken against the appellant. The Rent Controller, in the circumstances of the present case, lacked necessary jurisdiction to pass an order under section,15-A of the said Ordinance and impugned in this appeal. I accordingly accept the appeal and set aside the order impugned herein. H.B.T./M-1297/K??????????????????????????????????????????????????????????????????????????????? Appeal accepted: