1986 PLP 2743 (MLD)

On the pleadings of the parties the learned Rent Controller framed the following issues: (1) Whether the application is not maintainable in law? (2) Whether this Court has no jurisdiction to entertain this application? (3) Whether the disputed shop is required by the applicant for his personal need? Deciding these issues in favour of the respondent, the Rent Controller ordered eviction of the appellants vide the impugned judgment. The only ground urged before this Court in appeal is, that the respondent was not qualified to invoke section 14 of Ordinance. The main contention of the learned counsel is that the respondent had attained the age of 60 years prior to the date when the rights of landlord with respect to the demised premises devolved upon him. It is an admitted fact, that the respondent was born in 1909. Therefore, he would attain the age of 60 years in 1969. It is also admitted, that the respondent acquired the rights as landlord over the premises in question in 1973 by inheritance due to the death of his son Zakir Ali and his wife. To appreciate the questions involved in this contention and the arguments of the parties, it is necessary to reproduce relevant part of section 14 of the Ordinance which reads as under:‑ "

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 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, as the case may be, has become widow of 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. (3) It will be seen that this section does not give unfettered rights to every person; who has attained the age of 60 years or has retired or is widow or orphan to seek eviction under section

14. In the section itself, certain disqualifications are prescribed making certain persons ineligible for seeking eviction under section

14. As for the condition in subsection (1) that landlord shall serve notice upon the tenant, admittedly the notice has been served upon the appellants in this case. It is also not contended that the respondents have any other building in their occupation in the locality. Therefore, the disqualification contained in subsection (2) would not be applicable to the present case. However, the provision relevant for the disposal of this appeal would be proviso to subsection (1) of section

14. It may be pointed that this proviso has been inserted by Sind Rented Premises (Second Amendment) Ordinance, 1980 by substituting it for the originally enacted proviso which provided as under: Provided that nothing in this subsection shall apply where more than six months have elapsed since the landlord has retired or attained the age of sixty years or, as the case may be, ha become widow or orphan. It will be seen that under the previous proviso certain period was fixed within which the landlord had to file application after he acquired the qualification under subsection (1). This limitation has now been taken away by substitution of new proviso and only condition imposed is, that the landlord should 'not have rented the building after he has attained age of 60 years. The contention that the landlord should be the landlord of the premises at the time when he attained the age of 60 years does no appear to be borne out from the reading of this section. The requirement of the section is that such person should be a landlord at the time when he institutes proceedings of eviction. The learned counsel has relied upon 1983 C L C

317. In that case a widow had applied for eviction of tenant under section

14. It was contended by the tenant, that landlady should have owned the building before she became widow. This argument was rejected by learned Single Judge of this Court, who held that "widow on the death of her husband becomes widow and simultaneously she becomes landlady by virtue of inheritance. The cause of action accrues to her for filing an application under section 14 of Ordinance on the death of her husband in the capacity of a widow. However, a widow cannot press into service provisions of section 14 of the Ordinance if she purchases a property after becoming a widow from a stranger. In other words a widow cannot create a cause of action in her favour under section 14 by purchasing a property after she has become widow." In the instant case also the respondent had not created any cause of action for himself by purchasing property after attaining the age of 60 years. The property was inherited by him due to death of his son and his wife. In other words he became landlord for the reasons over which he had no control. There is another aspect of the matter also which does not appear to have been considered by the learned Rent Controller. As already pointed the respondent had attained age of 60 in 1969 and acquired the rights as landlord in 1973. As such he became qualified to invoke the provisions of section 14 after 1973. Respondent Kabir Khan has admitted in cross‑examination, that the other tenant Ramchand was put into possession as tenant by him in the adjacent shop of property about 8 or 9 years back. He was examined in 15‑9‑1985. Therefore, it can be safely assumed that he let out other shop to Ramchand in 1976 or 1977 viz. after attaining the age of 60 years and after acquiring the rights as landlord. It is contended by the learned counsel for the respondent, that letting out of the shop before the promulgation of the Ordinance would not be hit by proviso to subsection (1) . He has relied on 1983 C L C 1304 wherein a learned Single Judge of this Court has held that this Ordinance has no retrospective effect and letting out of another shop to a person prior to coming into force of the Ordinance would not bar landlord's rights to invoke provisions of section 14 on a cause of action arising after the enforcement of the Ordinance. However, the scope and effect of this proviso and other provisions of section 14 of the Ordinance were considered by their Lordships of the Supreme Court in case of Bakhsh Elahi v Qazi Wasif Ali 1985 SCMR

291. It was observed by their Lordships:‑ "...the clear intendment behind the provisions of section 14(1) was to give the benefit thereof to the landlord if at the time of the happening of the contingencies enumerated therein, he is not in occupation of another building owned by him and has not rented out "the building" after the happening of such contingencies. In other words the benefit conferred by the provision is lost as soon as the landlord comes into occupation of another building of his own or lets out the building as the case may be." It appears that the purpose of the proviso was to avoid the extension of the privilege by laying down that the privilege was not available to the landlord' if he rents out any building which but for that would have been available to him. Having regard to these considerations it appears quite clear that the intention of the Legislature was to grant the privilege to such a landlord to get possession of one of his buildings by the summary procedure, which privilege would lapse if he already has in occupation any other building either before or after the time of accrual of the privilege in terms of section 14(1) or if he lets out any of his buildings after the relevant time specified in the provision it question." In view of the law laid down by the Supreme Court there appears to be no doubt that the respondent was not qualified to invoke summary procedure of section 14 of the Ordinance. as after attaining the age of 60 years as well as after acquiring the right as landlord he admitted rented out another shop. The qualification to invoke section 14 is acquired' by landlord after he attains the age of 60 years. The qualification even if acquired before the promulgation of the Ordinance does not lapse but is kept alive. Similarly the disqualification incurred under the proviso would also be kept alive even if incurred before the promulgation of the Ordinance. If the Legislature had intended otherwise it would have made it explicit in the proviso. No interpretation could be placed on the construction of the proviso other than what. it clearly spells. Keeping in consideration the above factual and legal position I allow this appeal and set aside the impugned order but direct the parties to bear their own costs. H.B.T. Appeal allowed.