1999 PLP 1786 (CLC)

For acceptance of this proposal learned counsel for the parties request for time. Time granted. Adjourned to 16‑5‑1997." Thereafter, the case was being adjourned on one or the other grounds. However, on 7th November, 1997 the parties agreed that they shall file written argument within one week and Mr. Muhammad Anwar Tariq, Advocate has filed his written arguments in First Rent Appeal No.206 of 1992. Mr. Muhammad Sadiq, Advocate appeared for the appellant in First Rent Appeal No.228 of 1992 has stated that he has already argued the case and has nothing to add. Equally Mr. Ziauddin Qureshi, Advocate has argued the case also stated that he has nothing to add.

7. During the course of arguments it was admitted that the notice under section 14 and section 18 was received by the tenants, who are the appellants and they are, therefore, not agitating the issue. The main contention of both the learned counsel appearing for the appellants before me was that there is 5th shop in the possession of the respondent and since the respondent is in occupation of 5th shop the application of respondent under section 14 was not maintainable.

8. Mr. Muhammad Sadiq, Advocate appearing for the appellant has relied upon the following case‑law:‑‑ (1) Muhammad Ali Ahmed Khan v. Messrs Toufiq Engineering Works 1991 CLC 1051, (2) Hazrat Shah v. Dr. Muhammad Hanif 1992 MLD 910, (3) Mst. Zulekha and 7 others v. Massjid‑e‑Mahrajul Nabi Trust 1984 CLC 3057, (4) Abubakar and another v. Abdul Haleem PLD 1991 SC 302, (5) Iqbal Yousuf v. Kishwar Jehan 1995 SCMR 864, (6) Buksh Elahi v. Kazi Wasif Ali 1985 SCMR 291.

9. In the first mentioned authority one of the Judges of this Court held that if the premises are needed by the landlord under section 14 in order to prevent serious complications and dishonest claim, the Rent Controller was justified in granting ejectment in respect of one premises according to the convenience and nature of business and in so holding option was left to the tenant. In the case of Hazrat Shah late Mr. Justice Qaiser Ahmed Hamidi allowed the rent appeals which were filed on the grounds mentioned in section 14 on the plea that the application under section 14 could not be converted to section 15 of the Ordinance, 1979 and such course was not permissible. In the case ~4f Zulekha and others the definition of building as defined in section 2(6) of West Pakistan Urban Rent Restriction Ordinance, 1959 was given by Honourable Justice Ajmal Mian while presiding the. Bench at Karachi in his capacity as a Judge of this Court. Reliance in this case was only to the extent that the building as a whole is to be seen before ordering the ejectment. In the case of Abubakar it was held by Honourable Supreme Court that the ejectment cannot be granted if the landlord has rented out a building or be in occupation of a building of the nature or the character of which is identical for which he has sought the ejectment order under section

14. The building includes a part thereof in terms of clause (a) of section 2 of the Ordinance, 1979. Honourable Mr. Justice Ajmal Mian, who is author of the judgment has further clarified in the following words:‑‑

"In another words he or she seeks the ejectment of a shop, he or she must be in possession of a shop in any locality irrespective of the fact whether it was suitable or not suitable for the purpose. "

10. In the case of Iqbal Yousuf in which Honourable Supreme Court did not order ejectment because house was not specifically mentioned. However, in this case it was held that the provision of section 14 are to‑ be given liberal construction. Similarly, in the case of Bux Elahi since the landlord was in occupation of a building, order of ejectment was refused.

11. Mr. Muhammad Anwar Tariq, Advocate in his arguments has laid stress that since the landlady was already in possession of a shop that there is electronic store on the ground floor, therefore, application under section 14 was not maintainable and his second contention was that the order of the Rent Controller ordering each appellant to vacate one shop (cut of two shops) in their occupation/possession for respondent is not inconsonance with law.

12. Mr. Ziauddin Qureshi, Advocate appearing for the respondent has stated that there is no shop in possession of the respondent who is landlady. The shop so mentioned and stressed by the learned counsel for the appellants is not a shop but a small passage of measuring 3' x 7'. It was never constructed as a shop nor it was treated to be the shop for the payment of taxes under various laws including Excise Act. It was not mentioned in the building plan or map. The building consists of four shops which were let to the two appellants. According to him the need was fully established, therefore, Rent Controller has passed impugned order in favour of respondent and since the shops were four in number and two shops are in possession of each tenant, therefore, in order to avoid any discrimination, the Rent Controller has ordered both the tenants to vacate one shop each and hand over possession to the respondent/landlady. According to him these four shops could not be converted into three shops and the directions of this Court; dated 13‑5‑1997 are not feasible i.e. to convert the four, shops into three shops with equal measurement. According to him whole structure will have to be rebuild. He has relied upon the following case‑law:‑‑-- In the case of Muhammad Ali v. Hameeda Begum 1983 CLC 3237, one of the Judges of this Court ruled that while ordering ejectment under section 14 it is not necessary for the Rent Controller to go into the question of bona fides and mala fides and a question of bona fides could not be investigated into an application under section

14. In view of the difference in the language employed under section 14 and section 15 by the Legislature and thereby upheld the order of ejectment.

13. In the case of Raisa Begum v. Ali Zafar Naqvi 1993 MLD 404 one of the Judges of this Court also held that bona fides and good faith are not the requirement of section 14 of the Sindh Rented Premises, 1979. 14. perusal of preamble of Sindh Rented Premises Ordinance, 1979, shows that it was promulgated to regulate the relationship between landlords and tenants and protect their rights and interest in respect of the rented premises within the urban areas. It appears that the intention was neither to make this law as pro‑landlord nor as pro‑tenant but to maintain proper balance in order to protect the interest of both the parties. Such is the law laid by Honourable Supreme Court in the case of Iqbal Yousuf v. Kishwar Jehan 1991 SCMR

864. It is obligatory upon the landlord to enquire into the jurisdictional facts in terms of section 14 which are specifically mentioned in that section. In this case one jurisdictional fact is that the landlord should be a widow which admittedly is established on record through death certificate of the then original landlord placed on record through the affidavit‑in -evidence of the attorney of the respondents. It is not disputed by the tenants. The defence of tenants in this case all along has been that there is 5th shop and that 5th shop is in possession of the landlady and in view of the 5th shop already in possession of landlady she was not entitled to avail the provisions, of section

14. In other words the plea of tenants in both these appeals is that by virtue of the proviso to section 14 the landlady has not satisfied other jurisdictional requirement that she is not in possession of any other shop and since she has the possession of the 5th shop with her, therefore, the application under section 14 was not maintainable.

15. I have given anxious considerations to such pleas urged by the learned counsel and have gone through the record with their assistance. I have also gone through the case‑law relied upon by the learned counsel and my findings on this issue are as follows:‑‑

16. Indeed, it is true that Sindh Rented Premises Ordinance, 1979 is a law to create balance between the relationship of landlord and tenant. Landlord would ordinarily not be entitled to eject the tenant from the premises let to him except his case is covered either under section 14 or any of the clauses of section 15 of the Sindh Rented Premises Ordinance, 1979. The endeavour of the Court was always has been to apply the provisions of law by going through the pleadings and the evidence. For ordering ejectment, it is the primary duty of the Rent Controller to assess and weigh the evidence led by the landlord in support of his ejectment application. If the evidence of the landlord inspires confidence, truthful and fits within the requirements of law then such evidence is to be accepted and the ejectment is to be ordered. Ejectment could only be ordered provided that the evidence led by the landlord is justified and only on the strength of such evidence order of ejectment should be passed. This means that the order of ejectment could not be passed due to weakness in the defence and evidence led by the tenant. In another words it is the quality of the evidence of the landlord‑which should prevail.

17. If the evidence of the landlord inspires confidence then the Rent. Controller must assess evidence given by the tenant in defence. The Rent Controller must assess whether any pleas has been taken by the tenant which is genuine and as and when established through evidence on. record, would create a dent in the requirement established by the landlord through his evidence led by hire earlier, and whether such dent is permissible within the pare‑meters of law relating to ejectment of tenant. Once that dent is established which is permissible in law through positive evidence in order to protect the interest of the tenant the Rent Controller may not order ejectment of the tenant as the Rent Controller is under bounden duty, cast on him by the law to protect the interest of the tenant.

18. While deciding application under section 14 of the Ordinance, 1979 the first arid the foremost duty cast on the Rent Controller is to see that jurisdictional requirements are that (a) there should be relationship of landlord and tenant (b) that the landlord/landlady should either be widow, or a minor whose both parents are dead or a salaried employee due for retirement within in the next six months or already retired, or a person who is due to attain the age of 60 years and (c) informs the tenant through a notice in writing that in view of such contingency mentioned in paragraph (b) that he or she shall need the building in occupation of tenant for personal use and in such notice also mentions delivery of vacant possession of building within such period as may be specified in the notice which shall not be earlier than two months from the receipt of notice. Once these jurisdictional requirements are established, in the ordinary course, ejectment will follow. However, the tenant through positive evidence, if establishes on record that the case of the landlord; falls within .the proviso of section 14(1) or subsection (2) of section 14, ' ejectment of the tenant must not lie allowed by the Rent Controller. With this particular position of law stated, the evidence led by the parties is to be scrutinised by the Court.

19. On behalf of the respondent landlady her son Shahid Iqbal examined himself as a witness he has stated in both these cases that the appellants are tenants. Notice under section 18 and section 14 was served on the appellants (this is not an issue). He further stated that the appellants were called to vacate the premises and the call was not headed by the appellants. He further, stated that his late father was Government servant and retired after attaining the age of sixty years. He also filed rent case under section 14 and due to his death the cause abated. In paragraph No.7 he stated that the landlady does not possess nor occupy any other shop in any locality he denied that the assertion of the appellants that there is one shop in the name and style of Siddiq Electric. He denied that the landlady or her late husband had received any Pugree. In cross-examination he has stated that there is .a cabin of electrical appliances in our building .... "There is no 5th shop but there is a space which is like cabin", he stated that "it is incorrect to suggest that space like cabin is in our possession. It is a fact that the said cabin like space is not in possession of any tenant .... It is a fact that I have not filed any rent case in respect of the cabin like space. There is a door in the abovesaid cabin like space., Space of cabin 3' x 7' . " From this evidence it will be seen that the landlord has satisfied all the jurisdictional requirements which are necessary in terms of section 14 of the Sindh Rented Premises Ordinance, 1979.

20. The relationship of landlord and tenant is not under dispute. Notice was served on the tenants and they admitted such fact that premises were demanded from the tenants and such fact was also not in dispute. The only dispute which requires settlement in this rent case is whether there is cabin. Whether that cabin is a shop and whether that shop is in possession of the respondent. From the record I find that the building has four shops. In respect of four shops the landlady is paying taxes to the authorities concerned such as property tax. All the four shops are given to the tenants i.e. appellants in both these appeals. Cabin is not mentioned in the building plan. It is not a permanent structure. It is in a passage. It could not be termed to be a shop in possession of the respondent so that ‑it may be create dent in the requirements of the landlady under section 14 of the Sindh Rented Premises Ordinance, 1979. Even in the PT‑Form which was verified‑by the witness in this Court there are four shops. I would, therefore, hold that the building has only four shops and all the four shops are‑rented to the appellants which is admitted position on record. Cabin is not the permanent structure nor it was built to be: 5th shop and, therefore, the requirement of the landlord could not be denied due to the so‑called cabin. I would, therefore, hold that the respondent has established her case for her requirements under section 14 and there is no other option but to order ejectment.

21. This brings me to the relief, admittedly it is not possible to have three shops without altering structure and converting the four shops into three shops. The Rent Controller ordered both the tenants to vacate one shop each. This order has been so passed to avoid any discrimination as it was not possible for the Rent Controller to tell one of the two tenants to vacate one shop. Since two tenants were equally placed on the same footings, therefore, the Rent Controller was justified in directing each tenant to surrender one shop. Such order is in consonance with law although I am mindful that if one shop would have been in possession of the respondent, the respondent would not be entitled to get another shop. I would, therefore, maintain the order bf the Rent Controller but would like to attach one condition. The condition is that if the landlady does not require second shop it shall only be let out to either of the tenants and no new tenant shall be inducted This condition has been imposed to satisfy the requirement of equity. In First Rent Appeal No.206 of 1992 the appellant shall vacate Shop No‑2 and the appellant in First Rent Appeal No.228 of 1992 shall vacate Shop No.3. With the above observations these Rent Appeals are dismissed and since question of law was involved no order as to costs is being passed: H.B.T./A‑201/K Appeals dismissed