1986 PLP 905 (CLC)

Date of hearing: 10th December, 1985. The admitted facts are that the appellant is the owner/landlord of house bearing No.217‑D, Block II, P.E.C.H. Society, Karachi consisting of ground floor and first floor. The ground floor is occupied by the appellant, while the first floor is rented out to the respondent. Before retirement of the appellant both the floors were occupied in similar manner. On the ground floor the family members of the appellant were residing and after retirement, the appellant is also residing there. The appellant filed an application under section 14 of Sind Rented Premises Ordinance, for ejectment of the respondent from the first floor premises. The defence taken by the respondent was that the appellant owns and is in occupation of a building on the ground floor, therefore, the application is hit by section 14 subsection (2) of the Ordinance. This plea was upheld by the learned Controller, and the ejectment application was dismissed. The entire controversy in this case rests on the interpretation of section 14 which reads as follows:‑ "

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 it writing inform the tenant that he or she needs the building for personal use and require him to deliver vacant possession o: 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 of 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 an3 locality. (3) Where the tenant has failed to deliver the possession of this building under subsection (1), the Controller shall, on application by the landlord in this behalf, order eviction of the tenant from the building in a summary manner, by using such force as mal be necessary." Mr. Rehanul Hassan Farooqui the learned counsel for the appellant has contended that the opening words of the section namely, 'notwithstanding anything contained in this Ordinance' exclude the applicability of other provisions of the Ordinance while exercising jurisdiction under section 14, and thus, the definition of the word 'building' as provide in section 2(a) cannot be applied. Section 2(a) reads as follows:‑ "(a) 'Building' means any building or part thereof, together with all fittings, and fixtures therein, if any, and includes an; garden, garage, outhouse and open space attached or appurtenan thereto." From the definition of section 2(a) it is clear that even a par of a building will be treated as a building. If this definition is applie4 to the present case, there is no dispute that the first floor and the ground floor are two different and separate buildings. However, w have to consider, whether this definition will apply to the presen case. Mr. Rehanul Hassan Farooqui has contended that as the definition of the word 'building' will not apply, its dictionary meaning should be taken into consideration, and in view of that meaning there can b only one building on the plot, on which it is constructed and not buildings. The object of section 14 is to provide summary and speed remedy to the specified landlords who are not even required to establish their bona fide requirement for personal use. There are certain condition attached to the exercise of jurisdiction under section

14. One of them is that if such landlord has rented out the building after he has retired, or attained the age of 60 years, or become orphan or widow, then he will not be entitled to invoke section

14. The applicability of subsection (1) is also excluded by subsection (2) which in fact disentitles' a landlord from seeking remedy under section 14 if he is in occupation of a building owned by him in any locality. Subsection (2) serves the purpose of a proviso with definite and substantive dis‑qualification imposing upon the landlord. The object of the Legislature in imposing these two conditions seems to be that the summary and speedy remedy which is provided to the landlord should not be abused, and should not be made a vehicle of operation by such landlords. Now looking in this background and the object of the Legislature, it is to be seen whether the word 'building' should be used as defined by the Ordinance, or as contended by the learned counsel for the appellant. To correctly appreciate the contention of the learned counsel for the appellant one should first ascertain the meaning of the words 'notwithstanding anything contained in this Ordinance or any other law as employed in section

14. By these words a right is conferred on the specified landlords to ask the tenant to vacate the building and seek speedy and summary procedure provided by section

14. This section has to be read with reference to section 15 which covers generality of landlords and any landlord can file case of ejectment on grounds provided in this section (section 15). But under section 14 only such landlord can file case for ejectment who is qualified to take such action. All landlords cannot invoke section

14. The right and procedure provided by section 14 is alien to section

15. Section 15 is applicable to all landlords; section 14 extends its applicability to the specified landlord at his option. If such a landlord invokes section 14 it cannot be argued that the later provision viz. section 15 should be applied. The exclusion, therefore, refers and is restricted to the provision of section

15. If the contention of the learned counsel for the appellant is accepted, then it is bound to lead to absurdity. Section 14 would then become a sole and independent section in the statute book and even appeal under section 21 cannot be filed. In this regard reference can be made to Muncipal Committee Bannu v. Munawar Khan P L D 1982 Kar. 61 where in similar situation the exclusion was not extended to all the provisions of statute and Rules. Section 14 modifies the general provision of section 15 and confers a special right and procedure which is not available under it. D The opening words, therefore, apply to only the rights and procedure provided under section

15. These words embody the principle contained in the maxim generalia specialibus non derogante which in the words of Lord Hobhouse in Baker v . Edgar and others 1898 A C 748 means:‑ When the Legislature has given its attention to a separate subject, and made provision for it, the presumption is that a subsequent general enactment is not intended to interfere with the special provision unless it manifests that intention very clearly. Each enactment must be construed in that respect according to its own subject‑matter and its own terms " Similar words were interpreted in Nawab Bahadur v. Remeshwar Lal, A I R 1949 Cal. 323:‑ "The Money‑lenders Act is one of general application and having regard to its nature and its subject‑matter as indicated in its preamble, it seems to me to be only reasonable to suppose that the word 'notwithstanding anything contained in any law for the time being in force which appear in section 30 refer only to general statutes which by their terms might be construed to impose upon the borrowers a liability exceeding the limit contemplated by that section. The form of the words used ma be regarded merely as a convenient method of repealing inconsistent provisions of such statutes as the Interest Act or the Contract Act without making any express reference there Similarly, the use of these words in section 36, which relates the procedure to be adopted for obtaining relief under the Money lenders Act, may be reasonably regarded as modifying amplifying for the benefit of borrowers (subject to the limitation contained in the section) any statute of general application relater to procedure, such as Code of Civil Procedure, which would rn otherwise give borrowers the measure of relief contemplated t the Bengal Money‑lenders Act." The opening words of section 14 do not destroy the other provisions of the statute, but modify, the rights conferred on the landlord by section 15 which is of general application. These words contemplation that any provision of the Ordinance or any other law which is inconsistence with the rights and procedure provided by section 14 will not override section

14. I am, therefore, of the view that the word 'building' defined in section 2 (a) should be applied while construing section 14 Section 14 fell for consideration in Bakhsh Elahi v. Wasif AI 1985 S C M R 291, where it was exhaustively analysed and it will observed:‑ "The question is did the Legislature intend to free this class landlords from the fetter imposed on the generality of landlord in the matter of ejectment of tenant on the ground of person requirement. To my mind the answer to this question must in the negative. If the Legislature wanted to exempt this spec: class of landlords from the operation of this law, it would made an express provision to that effect, as has been done section 3 in the case of premises owned or requisitioned by, on behalf of the Federal Government or Provincial Government The proviso to subsection (1) of section 14 is a clear indication, to the contrary. Once a landlord of the specified class rents out 'the building' after the crucial time when the right accrues to him under section 14 (1) he forfeits the rights given by t provision, at least in respect of that building and if he see the eviction of the tenant on the ground of personal requirement he must bring his case within and by means of normal provision of section 15 of the Ordinance. Similarly he cannot take advantage of the beneficial provisions of section 14 if he is in occupation of another building in the save locality, as provided by subsection (2) of the said section and in that case too he must bring I action by means of the normal procedure and subject to t same limitations as are applicable to every other landlord." Further while referring to the proviso to section 14 (1) amended by Sind Rented Premises (Second Amendment) Ordinance; 1980. it was held: ‑ "The clear intendment of the law as it stood before the amendment was that the landlord was required to invoke the benefits of subsection (1) of section 14 within a period of six months from the date of retirement or attaining the age of sixty years or becoming a widow or orphan. Apparently there could be no ambiguity regarding the interpretation of subsection (2) as construed in the foregoing part of this judgment at that time. The disqualification contained therein clearly referred to the date when the contingencies mentioned in subsection (1) in its main enacting part happened, with the result that if at that time the landlord was in occupation of a building owned by him in any locality, the special privilege conferred by subsection (1) did not accrue to him and the purpose of the proviso to subsection (1) only was to provide as time limit for the subsistence of the privilege i.e. for a period of six months if the privilege did accrue. In this context of the legislative background, the only change brought about by the amendment was to remove the time limit originally stipulated and exclude the application of subsection (1) in case the landlord rents out a building after the accrual of the right and forfeit the same. In fact subsection (2) visualizes the situation where a landlord is already in occupation of a building of his own when the rights conferred by subsection (1) accrue or continue to vest and the proviso to subsection (1) as amended deals with the situation after the accrual of the rights where the landlord rents out a building after the happening of the contingencies mentioned above." 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 H application is clearly hit by section 14 (2), and the appellant is not entitled to avail the remedy under section 14 (1). The appeal is, therefore, dismissed. A . A . Appeal dismissed.