1997﷓ PLP 992 (CLC)

(1) Whether the ejectment application is not maintainable? (2) Whether applicant has no need for the premises in question for his personal use after his retirement (3) What should the order be? The respective parties filed their affidavits and both deponents were cross‑examined by the respective learned counsel. After hearing the parties' learned counsel, the eviction application was allowed as per impugned order dated, 31‑10‑1994. On 2‑2‑1995, while admitting this appeal, my learned brother observed that following contentions required consideration:‑‑ (1) Whether the respondent who has been in possession of two rooms of the disputed building for his use and use and occupation of his family members since the commencement of tenancy in 1972 in favour of the appellant is disqualified to seek ejectment under the summary procedure provided in section 14 of the Ordinance, in view of the judgment reported in 1986 CLC 905, 1993 MLD 1530, 1985 SCMR 291? (2) Whether the ejectment application filed by the respondent can be converted from section 14 to section 15 of the Ordinance on the ground of personal requirement for the use and occupation of himself and his family members, in the light of evidence on record? The learned counsel for the parties have addressed and argued on the above two contentions. The first contention is whether the respondent being admittedly in possession of the two rooms of the disputed building for his family members since tenancy would be disqualified to seek eviction under section 14 of the Rent Ordinance. In the said respect, learned counsel for the appellant has relied upon Mumtaz Begum v. Syed Iftikhar Hussain Rizvi 1994 CLC 2107, wherein learned Judge in Chambers has observed:‑‑ "Another aspect of the case was that in view of subsection (2) of section 14 of the Ordinance the landlady would have been disentitled to claim eviction of another portion of the same building which she was occupying as owner if and only if she was asking for eviction to utilize of the premises for the same purpose for which she was already utilizing the premises in her continuing possession. Thus, to put it more clearly, if the landlady was occupying a portion of the same building for residential purposes she could seek eviction of another portion of the same building provided that she required it for a commercial purpose or vice versa. This seem to be settled law in so far as interpretation of section 14(2) of the Ordinance is concerned. On this point as well, involving an intermingled factual and legal dispute the finding of the learned Controller is not clear cut and specific. " (ii) Muhammad Habib v. Muhammad Afzal Farooqui 1986 CLC 905, wherein learned Judge in Chambers has observed:‑ "In view of the admitted position that the appellant is the owner and in occupation of the ground floor of the building and is seeking ejectment in respect of the first floor, which is a building, the ejectment application is clearly hit by section 14(2), and the appellant is not entitled to avail the remedy under section 14(1)." And (iii) Mst. Najma Ashraf v. Mst. Noor Jehan 1994 SCMR 913 wherein it has been observed at page 917 that:‑ -- "In such circumstances there was no legal impediment in the way of learned Rent Controller to frame an issue to the effect whether in this case section 14 or section 15 of the said Ordinance is attracted. In this context it is held by this Court that section 14 or section 15 of the said Ordinance contain two separate causes of action and filing of ejectment application under one would not debar the owner from seeking relief under the other. In support of the proposition reference can be made to the case of Salim Ahmed Khan v. Mst. Jamila Latif 1990 SCMR 1117." Learned counsel for the respondent, Mr. Wafi Khan Yusufzai has argued that "Any locality" would not include a portion of house in the same building and further portion of house could not be termed to be the building. He placed reliance upon (i) Zubaida Ismail v. Zahra Sultana (1989 CLC 1121) and (ii) Mst. Kawakab Begum v. Abdul Fazal Kausar (1984 CLC 1686), wherein learned Judge in Chambers observed that the landlady would be entitled to possession of shop under section 14(1) of Sindh Rented Premises Ordinance, irrespective‑of the fact that she was in possession of residential portion of the building. In Kamal Afreen v. Mansoor Muhammad Qureshi (PLD 1983 Kar. 598), learned Judge in Chambers has observed at page 601:‑ -- "As far as bar contain in section 14(2) of Sindh Rented Premises Ordinance, 1979, 1 see great force in the contention of the learned Advocate for the appellant. It is admitted position, that premises in occupation of the appellant are residential premises, whereas ejectment application filed by the appellant, relates to non‑residential premises and consequently, cat my opinion section 14(2) of Sindh Rented Premises Ordinance, 1979, do not in any way, bar the ejectment application filed by the appellant. Position, would have been different if appellant had sought ejectment in respect of the similar premises in her occupation, in which case section 14(2) of Sindh Rented Premises Ordinance, 1979, would come into play and her such application would be barred. In this view of mine, I am fully supported by decision of the Hon'ble Supreme Court reported in PLD 1981 SC 118." In view of the case‑law and specific provisions of subsection (2) of section 14, the respondent/landlord being in occupation of portion of building using the same as residential would not be entitled to seek eviction for same purpose under the provisions of section 14 of Rent Ordinance against the appellant/tenant. Accordingly, Point No. l is answered in affirmative. Appellant is disqualified to seek ejectment under the summary procedure provided under section 14 of the Rent Ordinance. So far the next plea whether the application filed by the respondent can be converted into section 15 of the Rent Ordinance, the same is to be answered in affirmative keeping in view the decision reported in Najma Ashraf v. Mst. Noor Jehan (1994 SCMR 913) wherein it has been observed at pages 916/917 in para. 6 that:‑‑ "In this context it is held that section 14 or section 15 contain two separate causes of action and filing of ejectment application under one would not debar from seeking relief under the other. In support of the proposition reference can be made to the case of Salim Ahmad Khan v. Jamila Latif (1990 SCMR 1117)." In the instant case, learned Rent Controller has allowed the eviction against the appellant under section 14 of the Sindh Rented Premises Ordinance and has considered and assessed the evidence in the light of the said provisions whereas to entitle the respondent/landlord to evict the respondent under section 15, the personal requirements of the respondent is to be adjudged keeping in view his good faith as well. The evidence adduced by the respondent would not justify the eviction of the appellant as observed above under section 14 of Rent Ordinance hence the impugned order is set aside and case is remanded to the learned Rent Controller to frame issue to the fact whether the applicant would be entitled to eviction under section 15 and also to decide the case afresh after affording opportunity to both the parties for adducing further evidence if so desire. In terms of above directions, the appeal ‑ stands disposed of. A.A./F‑17/K Case remanded.