1989 PLP 969 (CLC)

S. Ali Ahmad Tariq for Appellant. Mustafa Lakhani for Respondents. Date of hearing: 16th May, 1988. This appeal is directed against the impugned order dated 22‑9‑1986 of learned IVth Senior Civil Judge Rent Controller West, Karachi whereby application for eviction filed under S.14 of Sind Rented Premises Ordinance, 1979 (hereinafter to be referred as said Ordinance) is dismissed. Briefly stated the relevant facts are that appellant before me Mst; Kulsoom Begum is landlady and respondent No.l. M/s. Elite Cone Industries is tenant and respondent No.2 Muhammad Younus is proprietor of respondent No.l (to be referred hereinafter as landlady and. tenants) in respect. of tenement on the ground floor of Plot No.2218 situate in Firdous Colony, Karachi‑18. Eviction application was filed under S.14 of the paid Ordinance, on 5‑10‑1982 by the landlady after the death of her husband on the grounds firstly that premises were required for personal use to enable her son Moin Siddiqui to set him up in business. Secondly that premises were sublet unauthorisedly to Abdul Karim Wahid Mirza. Thirdly that premises were being used in a manner which amounted to nuisance. Fourthly default was committed in payment of rent from December, 1980 till the filing of application. It is mentioned in the eviction application that notice was served upon tenant under S. 14 of the said Ordinance to vacate the premises within two months. Written statement was filed on 20‑10‑19812 in which stand was taken that application for eviction was not maintainable on the grounds firstly that landlady was not the sole owner but there were other sons and daughters, who were legal representatives of deceased landlord. Secondly that grounds taken by the landlady were outside the ambit of S. 14. Thirdly landlady was in occupation of accommodation on the first floor of the same building. Other allegations made by the landlady with regard to the default, subletting and nuisance were denied. In the evidence landlady examined her son and attorney Moin Siddiqui. Tenant examined Muhammad Younis. Learned Rent Controller (Mr. Arshad Ali Khan) after considering evidence brought on the record, came to the conclusion that landlady was not entitled to the benefit under section 14 of the said Ordinance for the reason that she was in occupation of upper storey of the same building and in consequence dismissed application for eviction vide order dated 7‑2‑1984. Against this order landlady filed FRA No.284/1984 in the High Court in which vide judgment dated 2‑7‑1985 my learned brother Haider Ali Pirzada, J. held that benefit under section 14 of the said ordinance would be available if landlord /landlady is in occupation of residential premises and demand is made for rented commercial premises and vice versa. In support of the proposition reliance was placed on the case of Abdul Majeed v. Mst. Naimun Nisa Begum P L D 1981 SC 118. Consequently order of eviction was set aside and the case was remanded to the Court of Rent Controller for fresh decision in accordance with law after giving reasonable opportunity to both the parties to produce documents and to adduce evidence in support of their cases. After remand in the Court of Rent Controller, in compliance with order of the High Court, fresh evidence was recorded. Issues with regard to default and subletting were not pressed. Vide order impugned in this appeal, eviction application was dismissed on the ground that landlady is not entitled to the benefit, under section 14 of the said Ordinance. Supreme Court of Pakistan has held in the case of Abdul Majeed v. Mst. Naimun Nisa Begum P L D 1981 SC 118 that subsection (2) of section 14 of the said Ordinance cannot be read in isolation from subsection (1) for there has to be nexus between the personal use for which the eviction is sought and the premises said to be owned and possessed by 'the landlady in any locality. Intention of the Legislature in this enactment is, to give benefit to certain class of persons to obtain summary eviction for personal use and the purpose would be defeated if wider meaning is assigned to the interpretation of subsection (2) to presume that if landlord owns and possesses residential accommodation, he cannot acquire rented commercial accommodation and, vice, versa for his personal use. This being a settled position, learned counsel for the appellant did not go into the question of, character of rented accommodation in dispute and accommodation: available with landlady on the first floor for the reason that it would not make any difference that the landlady having residential accommodation in her occupation attempted to take or acquire commercial accommodation in occupation of tenant for the personal use. Both the learned Counsel argued before me on the point whether under section 14 rented accommodation can be acquired for the benefit of child of the landlord /landlady. Mr. Ali Ahmad Tariq, Advocate contended that it can be so done and in support of proposition cited before me my own judgment in the case of Mst. Akhtar Sultana v. Syed Abdul Qayum 1985 C L C 534. In the reported case mentioned above point at issue was whet‑her landlady is allowed benefit under section 14 of‑ the said Ordinance, when she took up the stand that she being a Pardahnasheen lady would not run the business of restaurant but would allow her children to do the same while she herself remained as main beneficiary. It was held that landlady nowhere stated that the premises were not required by her for her personal use or she would not be: a party to benefit of business which was to be run by her through her children. In other words need of landlady and he children were co‑related and were inter‑dependent. On the other hand Mr. Mustafa Lakhani has contended before me that section 14 of the said Ordinance contemplates summary procedure and is a special provision exclusively for the benefit of landlord /landlady of a particular class described therein and this benefit cannot be allowed to be used for the children of landlord/ landlady and if benefit is sought for the children then resort can be made to the section 15 of the said Ordinance which clearly provides that landlord can require premises in good faith for his own occupation or use or for the occupation or use of his spouse or any of his children. On the face of it this argument appears to be correct because section 14 exclusively caters for relief by way of summary procedure in favour of landlord or landlady who is widow, minor whose both parents are dead, salaried employee, due to retire within next six months or has retired or is a person who is due to attain the age of 60 years within next six months or has attained age of 60 years. Section 14 does not provide that premises can be acquired for personal use of the children of the landlord/ landlady but such need can be implied if need of the child is co‑related or inter‑dependant with need of the landlord /landlady in such a way that one is merged into the other and both needs are inseparable. It all will depend how the need is described in the application for eviction and the other pleadings. If the pleadings show that need of the child is identifiable with need of the landlord/landlady and the inter‑connection and inter‑dependence is spelled out in unequivocal terms, then it can be said that need of the child is need of the landlord and benefit of section 14 can be allowed even if premises are required for the benefit of child/children of the landlord/ landlady. If the needs are separate from each other and are not inter‑connected and it so appears in the pleadings then benefit under section 14 of the said Ordinance cannot be made available for children of the landlord and the proper course would be to apply under section 15. In the instant case in application for eviction under section 14 in paragraph 3 need is described that the premises in dispute on the ground floor were required to carry on business for earning livelihood and to establish her eldest son Muhammad Moin Siddiqui for the business purpose as the landlady has no other building in locality in her name. In the instant case, facts, as they appear from the record, clearly show that the intention was to acquire premises in question for personal use of son of the landlady and at the same time there was persistent temptation to get benefit of summary procedure of eviction under section 14 of the said Ordinance. In that context all steps were taken in such a manner that there was confusion. Record shows that eviction application was filed on 5‑10‑1982 under section 14 of the said Ordinance. Along with this application were filed annexures including notice, dated 12th March, 1981 sent on behalf of landlady. This notice is supposed to be notice under section 14 of the said Ordinance but in the caption of the notice are mentioned sections 14, 15 and 18 of the said Rented Premises Ordinane, 1979. This notice cannot be treated as having been issued exclusively under section 14. Furthermore, this notice is issued not on behalf of landlady but on behalf of landlady alongwith her sons and daughters as joint co‑owners. Relinquishment deed was executed by other co‑owners in favour of Mst.Kulsoom Begum on 27‑12‑1980 but this fact is not mentioned in the notice sent on 12‑3‑1981 to the tenant as stated above. Subsequently another notice dated 21‑6‑1982 was sent to the tenant by the landlady Mst. Kulsoom Begum. In this notice the fact is mentioned that other legal heirs have relinquished their shares in favour of landlady. In this notice in paragraph 3 requirement is described that the premises are wanted for personal bona fide use of the landlady to carry on business for earning the livelihood and to establish her eldest son Muhammad Moin Siddiqui as she has no other building in the locality in her name. In this notice two months, time is given for handing over vacant possession. In this notice no section of the said Ordinance is mentioned. Landlady executed Special Power of Attorney in favour of her son Muhammad Moin Siddiqui and in this power of attorney is stated that the landlady authorised her Attorney to file a rent case under section 14 of the Sind Rented Premises Ordinance, 1979 against the tenant. This shows that there was so much anxiety to seek relief by way of summary procedure as contemplated under section 14 of the said Ordinance that relief under section 14 was considered as central idea and all other steps were being taken in order to achieve that goal. In both the notices mentioned above, several other grounds for eviction such as default, nuisance and subletting are repeatedly mentioned. Not only that but in the application filed in the Court under section 14 of the said Ordinance on 5‑10‑1982 grounds of default, nuisance and subletting are also mentioned in addition to requirement of premises for personal use. For such reasons as stated above, apparently the application under section 14 was not maintainable at all. This application was dismissed vide order dated 2‑2‑1984 on the grounds inter alia that landlady was in occupation of upper storey of the building as such she was not entitled to benefit under section 14 of the same Ordinance. In I appeal in the High Court the case was remanded in the terms stated above. Principles laid down in the case of Akhtar Sultana v. Syed Abdul Qayum, reported in 1985 C L C 534 will not apply to the facts of the present case for the reason that in the instant case it appears that premises in question are required for the benefit of son of landlady to help him to establish his business but at the same time there was profound anxiety to get quick relief by summary procedure as contemplated under section 14 and in the resultant confusion both reliefs under sections 14 and 15 have got mixed up. I have perused minutely evidence of Moin Siddiqui and Naim Siddiqui, who have appeared on behalf of landlady. It appears from this evidence that premises in question are required to set up in business Moin Siddiqui. The way need is described, it does not appear to be need of the landlady but appears to be the need of her son as such application for eviction should have been filed properly under section 15 of the said Ordinance and not under section 14. Section 14 additionally will not apply in this case for the reason that landlady already has first floor in her occupation in the same building. For the facts and reasons mentioned above, I maintain the impugned order dated 22‑9‑1986 and dismiss the appeal. However, there will be no order as to costs. M.Y.H./H‑122/L Appeal dismissed.