1993 PLP 1530 (MLD)

"The needs expressed and projected by the applicant are not genuine but in fact he is still waiting for some more accommodation on account of a desire to live in an unreasonable luxury and for that to dislodge the opponent. On this sole score even the application lacks bona fides and disentitles the applicant to seek eviction of the opponent." (Emphasis added) Now, it may bear mention here that in the written statement as well‑as in his affidavit‑in‑evidence the tenant had made a positive averment that the first and second floors were both in occupation of the landlord, implying that his son's family was not putting up on the first floor. The learned Controller, in context, has rightly referred to paragraph 3 of the tenant's affidavit in support of an application under section 14(2), C.P.C., submitted by him on 13‑8‑1992, which runs thus:‑‑‑ "

3. That admittedly the opponent is putting his abode in the ground floor of House No.100 C‑2, P.E.C.H. Society, Karachi, whereas in its first floor the son of the applicant is living and applicant himself is living in the second floor thereof." Thus in so far as the state of occupancy in the building is concerned, in spite of all equivocations, it becomes clear that the landlord and his wife are putting up on the second floor and in the process have to climb two flights of stairs, which at the age of the landlord, even if he was not sick, may best be avoided, that is to say, if it was avoidable. Another aspect of the matter is that while the tenant did not deny that the first and second floors of the building could not. be utilised by two different families, on the ground, as alleged by the landlord, that such would tend to hurt the privacy, the tenant in his affidavit‑in‑evidence, as an alternative, suggested that he was prepared to go back to the first floor of the building, which was initially rented out to him but that was when the ground and first floors were both tenanted and the landlord had not retired, occasioning the need. Yet another aspect of the case, and a crucial one at that, is that the landlord, being in occupation of a portion of the same building, owned by himself, is claimed to be disentitled under section 14(2) of the Ordinance to seek eviction under section 14(1) of the same Ordinance. As hinted above, an application under section 14(2) was independently preferred by the tenant on 13‑9‑1992 but was ordered by the learned Controller to be taken up after issues were settled and evidence was recorded. The Rent case itself from which this First Rent Appeal arises has a checkered history. At one time, the tenant had to be served through publication and, not being present in Court pursuant thereto, an ex parte order of eviction followed, which later on was recalled subject to payment of costs of Rs.300. The tenant was still not satisfied and preferred F.RA. No.394 of 1992 which F.RA. on 4‑1‑1992, was dismissed as infructuous by the learned Chief Justice, the landlord apparently in the interest of expeditious disposal waiving the costs allowed to him. On remand, at one stage, the tenant's cross- examination was closed but later his side was reopened and evidence was completed in the ordinary course. The impugned order has been passed on 25‑1‑1993 by the learned VIth Senior Civil Judge & Controller, Karachi (East), the case having consumed a period of over one year and full hearing in the process having been accorded. Before me Mr. M. Farooque Hashim, the learned counsel for the appellant‑tenant, has raised the following contentions in this appeal:‑‑‑ (i) The rent application was barred under section 14(2) of the Ordinance because the landlord was already in occupation of another building, as defined in section 2(a) of the same Ordinance. (ii) The application was hopelessly barred by time and suffered from laches as the landlord, admittedly, having retired in 1982 preferred the same after no less than about 10 years. (iii) On facts, there was no personal need of the landlord to get the building vacated. (iv) If relief could not be granted under section 14 of the Ordinance, the corresponding provision, applicable to all manner of landlords in section 15(2)(vii) could not be availed of and the application under section 14 could not be treated as one under such provision. Taking up the first point first, section 14 of the Sindh Rented Premises Ordinance, 1979, even where it applies, is subject to two provisos, one, properly so‑called, is appended to section 14(1) and the second is in the form of a subsection, namely subsection (2) of section

14. Applicable portions of section 14 are reproduced below:‑‑‑ "

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." In consequence, it will be seen that albeit a landlord, satisfying the requirements of the enabling provision in section 14(1) would still be precluded from obtaining relief, if he has rented out the building after he has retired or attained the age of 60 years or, as the case may be, has become a widow or orphan. (Section 14(1) proviso). Like result will follow and the landlord shall not' be entitled to avail the benefit, if he is already in occupation of "a building" owned by him in "any locality" (Section 14(2) ibid). Mr. Farooque Hashim, Advocate for the appellant‑tenant, has pointed out that the word "building" has been defined in section 2(a) of the Ordinance and "means any building or part thereof, together with all fittings and fixtures therein, if any, and includes any garden, garage, outhouse and open' space attached or appurtenant thereto". According to this contention, reliance for which is placed on Shamsa Khatoon v. Anwar Ali 1984 CLC 2291, Muhammad Habib v. Muhammad Afzal Farooqui 1986 CLC 905, Zameer Ahmad Qidwai v. Ismail Bawa 1986 CLC 910, Bakhsh Elahi v. Wasif Ali 1985 SCMR 291 and Hazrat Shah v. Muhammad Hanif 1992 MLD 910, even a portion of a building being itself deemed to be a building, as defined, a landlord, who otherwise may fall within the category of landlords, contemplated by section 14(1) Supra., would become disentitled to claim possession of such portion or any other building if he is already in occupation of another portion or building owned by him. On the other hand, Mr. Zaheer Ahmad Khan, Advocate for the respondent‑landlord, referring to Abdul Majid v. Naimunnisan Begum PLD 1981 SC 118 = 1985 SCMR 239 and Ulfat Hameed v. Birgis Khatoon PLD 1982 Kar. 823, has urged that the rule in the cited dicta is not inflexible. He has also urged that the word "building", as occurring in section 14(2) above, does not imply a portion thereof and that provision contemplates the whole of the building in order to attract the prohibition. It is no doubt true that a definition clause in a statute, howsoever comprehensive in nature, is usually to be read subject to context and if the context so requires a defined word may have to be accorded a different A meaning than that occurring in the definition. Section 2(a) is no exception to the principle. However, the context seems to make no departure here. Indeed, if it did the landlord's would be a self‑defeating argument because, on this logic, a portion not being a building, a landlord under section 14(1) would not, on analogy, be able to seek eviction of a tenant from a portion, the word building being a common denominator of the two subsections of section

14. Another argument from the side of the landlord of the same genus may also be disposed of here, that is the one relating to the words '.'the building" in the proviso to section 14(1) and the expression "a building owned by him in any locality", appearing in section 14(2). The distinction lies in the deliberate use of articles "a" and "the" in such provisions. Under the proviso in question a landlord becomes disqualified to seek eviction from "the" building or "the" portion, if he has let‑out "the" same building or "the" same portion thereof, subsequent to his becoming entitled under the enabling part of section 14(1): but the disqualification would be limited to evict from the same building or portion so let out and may not extend to another building or 8 portion not so let out. On the other hand, section 14(2) is broader and the prohibition ensues if the landlord is in occupation of any building whatever (i.e. "a building") in any locality owned by himself. Here the words "a building" include also "the building" from a portion of which eviction is sought. In other words, a portion being as much a building as a whole building, a landlord, occupying a portion of the building from another portion of which he wishes to evict, would suffer a disqualification. The proposition would be clearer when it is observed that if the legislature intended to exclude "the building" from which eviction is sought from the ambit of "a building" in section 14(2) it could very conveniently have employed the more appropriate expression in such a circumstance namely, "any other" or "another building owned by him in any locality". For these reasons, it is difficult to agree with the landlord that the words "a building" in section 14(2) imply occupancy of a whole building or a building other than "the building" in contemplation of section 14(1) ibid. Now may be approached directly the question pertaining to the concept of portions of a building, which is the subject‑matter of authorities cited at the Bar from either side. These precedents, taken together, have whittled down the rigours of 14(2) in the Ordinance. The rule laid down is that the two provisions in subsections (1) and (2) of section 14 have to be read together and a harmonious construction is to be made. Thus a landlord, who otherwise qualifies (for qualification see Wahid Shah v. Haider Mirza PLD 1983 Kar. 628) under the operative part of section 14(1) above, if in occupation, as owner, of a portion of the same building cannot claim eviction from another tenanted portion for the same purpose to which he is already putting that portion to use which is occupied by him. The element of purpose here has been found to be implicit in the language. To be more explicit, if a landlord is occupying such a portion and using it for residential purpose he cannot seek eviction of a tenanted portion for an identical purpose namely, residential. Similarly, a landlord. employing a portion for commercial purpose may not seek another tenanted portion, being put to like use. The prohibition under section 14(2) ends here and the converse of this is not true: a landlord occupying a portion for his residence may seek eviction of a tenanted portion or building for another purpose namely, commercial and vice versa. In this context, a further concession may be in the case of a landlord who, occupying a portion of the same building for a particular purpose, wants to evict a tenant, using another portion for the same purpose, provided that the landlord intends to put the tenanted portion, if vacated, to a use different than that for which he is employing the portion in his own occupation, assuming of course, the tenanted portion capable of that use (re: Ulfat Hameed Supra). In the light of the foregoing, even though the landlord qualifies under C section 14(1) of the Ordinance in at least two capacities namely, one of a retired Government servant and another of a person who has already attained the age of 60 years, he appeared to be disentitled under section 14(2), since he has sought eviction of the tenanted portion for the same purpose namely, residential to which he is putting another such portion to his own use, already in his occupation. Taking up the second contention of the learned counsel for the appellant, it has been urged, relying upon Arshad Butt v. Manzoor Ahmad 1992 CLC 723, that the landlord, having retired in 1982 and attained the age of 60 years in 1984, the application under section 14 of the Ordinance suffers from laches and warrants dismissal. As held in the precedent case there is no period of limitation prescribed for the filing of an application under section 14, except the prescribed periods of time necessary to qualify for applying. However, inordinate delay may reflect on the existence of the personal need of the landlord on which the application is founded. Delay may yet be explained by pleading or proving relevant factors, which can be manifold. Promises of the tenant to vacate, as urged by the landlord in this case, can be one such factor. Admittedly, the tenant had undertaken to vacate in 1983 through a writing executed jointly by the parties. Subsequently in 1984 the tenant's wife, who was also issuing cheques of rent herself, likewise undertook to vacate, as soon as their apartment, which was under construction, became available. Such apartment, according to the tenant, was surrendered in 1986 when the landlord says that it was sold. Even surrender of an apartment to the construction company could have been for profit and in the nature of sale, to controvert which no evidence was led by the tenant. During the period following there was a sequence of fruitless correspondence, which also explains delay. Besides, and it is crucial, law does not encourage litigation and if a party on hopes and promises, generated and extended by its opposite number, avoids approaching the Court it cannot routinely be saddled with laches. In the circumstances of this case, delay on the part of the landlord to approach the Controller seems to have been explained adequately. The other questions raised namely, convertability of the application under section 14 of the Ordinance into one under section 15, as relevant to personal requirement, and the existence or otherwise of such requirement may be dealt with together, Mr. Farooq Hashim has drawn my attention to a decision of this Court in Hazrat Shah v. Muhammad Hanif 1992 MLD 910, where it was held that conversion of an application from section 14 to section 15 of the Ordinance was not permissible and that too at the belated stage of an appeal. Reference in this behalf was made to the opinion in Mst. Tahira Begum v. Zamin Ali Qadri 1988 MLD 1579, in which case convertability was denied on the ground that section 19, relevant to recording evidence in a rent case, provided a distinct procedure for the treatment of an application under section 15 whereas section 14 envisaged summary procedure. On closer examination of section 19, it appears to me that the distinction highlighted in the case of Mst. Tahira Begum (supra). is confined only to section 19(1)(2)(3). However, the procedure regarding examination of witnesses and framing of issues in section 19(4) and (5) is common to all cases under the Ordinance and that includes also section 14 thereof. On such basis, convertability, of proceedings from sections 14 to 15 of the Ordinance, in just causes, therefore, may not be open to exception. It is also, by now, settled law that the procedure for summary disposal of an application under section 14, aforesaid, cannot be one, which denies or oversteps the rules of natural justice. There is also authority for the proposition that notwithstanding the non‑applicability of section 19(1)(2) and (3) of the Ordinance to proceedings under section 14, a respondent in such proceedings, on appearance, is to be permitted the filing of a written statement and even otherwise has to be heard. Thereupon, as I have said, evidence is to be recorded, though in a summary manner on the basis of affidavits in terms of section 19(4). Moreover, in practice, the procedure which is being adopted in the context of section 14 by the learned Controllers and countenanced by the Superior Courts, if not the same, is at least akin to that in proceedings under section

15. It can thus be said that section 19 of the Ordinance may not be a bar for the conversion of proceedings from section 14 to section 15 ibid. Apart from the two cases referred above, which lay down a contrary rule, there are some implying that, at the stage of the Controller, an application under section 14 may lawfully be converted to one under section 15(2)(vii) of the Ordinance Shan Illahi v. Mahmooda Begum 1984 CLC 931(para. 5) and Nur Jehan Begum v. Mujtaba Ali Naqvi PLD 1988 Kar. 581 (para. 2). 1 respectfully concur with this latter view, since the object of all laws is to administer justice according to the requirements of a case and all procedure, conducive to advancement of justice, is to be taken as permissible, unless expressly prohibited. The impediments on the rights of owners of property, under the Rent Laws, it may be added, are calculated to protect the fabric of society, which would be seriously impaired, if not totally destroyed, in case landlords, under the pristine concepts of the Transfer of Property Act, were permitted to re -enter upon termination of leases simpliciter. Hence, the prohibition and regulation in the Rent Laws, of the last which one is a higher norm touching the personal need or requirement of the owner or landlord and that stands at a H different padestal and ought to be viewed as such.. It has often been said and correctly that the need or requirement of a landlord, if established according to law, is to prevail over any possible inconvenience, dislocation or hardship to the tenant. Sections 14 and 15(2)(vii) have, accordingly, been enacted. Having said as much and coming to the conclusion that an application under section 14 can be converted into one under section 15(2)(vii) of the Ordinance, it remains to be observed that in effecting such conversion the Controller must see whether adequate opportunity has or has not been provided to the tenant to defend himself for the purposes of section 15(2)(vii) H and whether or not, in actual fact, the bare need of the landlord in terms of section 14 is really one under section 15(2)(vii), satisfying the elements of requirement and good faith, which are the essential ingredients of that provision. If that be so, conversion may be permissible in the larger interests of justice. This was so far as the stage of Controllers is concerned. The question, more germane to the case, is whether the same powers can be exercised at the appellate level. It seems to me that if the conditions necessary at the stage of proceedings before Controllers are present in a case or can be satisfied upon further enquiry under section 21 of the Ordinance, pertaining to appellate powers, identical approach at the appellate stage is permissible. Further, conversion at both levels, original or appellate, may either be sought or allowed suo Motu. Examining this appeal in terms of the foregoing, it may straightaway be stated that even though the Rent case was purportedly filed by the landlord under section 14 of the Ordinance, its recitals embraced the ingredients of bona fide personal requirement, in contemplation of section 15(2)(vii). What is more, the tenant also defended the proceedings, expressly denying the bona fides of the landlord even though that element was not relevant for the purposes of section 14 but was vital in relation to section 15(2)(vii) of the Ordinance. Furthermore, the parties submitted their respective affidavits‑in -evidence and were cross‑examined extensively on all matters which could have nexus not only with section 14 but also with section 15(2)(vii). The Controller as well as this Court, therefore, could convert the proceedings from one provision to the other. Indeed, the powers of this Court in appeal are not confined to section 21 of the Ordinance and in appropriate situations recourse may generally be had by the Court to the enabling powers vesting in it as an already established Court: Yusuf v. Rabia 1985 SCMR 1066. Thus, in the face of the impediments in the way of the landlord, as discussed above, I have, in order to do complete justice between the parties, decided to treat the application under section 14 as one under section 15(2)(vii) of the Ordinance. In the event it were to appear necessary that further evidence be recorded at the appellate level under section 21 of the Ordinance I would not have hesitated to do so, upon the broader consideration of avoiding multiplicity of proceedings and according due relief, if warranted. Such a course was permissible upon well‑established authority of all Courts from the Supreme Court downwards. Examining the record, however, no further inquiry under section 21 (supra) seems necessary. It may now be examined whether this is a case in which the landlord has established his bona fide personal requirement for the purposes of section 15(2)(vii) of the Ordinance. Little reflection is needed to state that the landlord and his wife, in their advanced ages, are confined to the second floor of the building. They have been insisting with the tenant to vacate on the basis of personal requirement for a long time. The requirement, as documentary evidence shows, was not denied either in 1983 or in 1984. The tenant offered to vacate which, after 1986, did not come about. Things cannot have improved for the landlord since then. It is not disputed that the landlord is a sick man and if it can be helped ought not to be made to climb two flights of stairs, day in and day out. Likewise, it has not been pleaded, let alone proved, that the landlord desires to relet or sell off the property. All that is said is that he wants to live in undue luxury. Surely, for an old sick man, with a wife of advanced years, it would hardly be any luxury to move from a second to a ground floor. The tenant's corresponding offer to be shifted to the first floor cannot be accepted for the simple reason that the landlord's married son, with children, is putting up on that floor and besides privacy of the landlord is shown as likely to be affected if an outsider were to take lodgings on the first floor. The landlord being confined to the second floor thus, in good faith, requires the ground floor. He, therefore, succeeds in establishing a case under section 15(2)(vii) even if he has been found to be precluded under section 14(2) of the Ordinance. For such reasons, which are recorded now, the order of the learned Controller was upheld through a short order passed on April 4, 1993 and the tenant's appeal was dismissed, allowing him a month's time to vacate. H.B.T./A‑1307/K Appeal dismissed.