P L D 1981 Karachi 794 (PLP)

In the above two appeals a common order dated 9‑4‑81 is under appeal passed by the learned Senior Civil Judge and Rent Controller, at Karachi in Rent Cases Nos. 1314/80 and 1315/80, directing the two appellants to hand over the vacant possession of the tenements in their possession under section 14 of the Sind Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance). 2. (a) In support of the above appeal, it has been contended by Mr. Umarani, learned counsel for the appellants that the respondent has not served the requisite notice of two months under the Ordinance and that she filed the rent cases even before the expiry of two months from the date of the service of the notice. He has referred to one of the notices dated 30th January, 1980, in which it was stated by the respondent's counsel that her husband had expired on 15‑10‑1979 and that she needed the premises 8s a widow for her personal bona fide needs. The appellant was called upon to quit, vacate and hand over peaceful possession of the premises forthwith. The other notice to the other appellant was also couched in the same terms. It has been contended by Mr. Umarani that under section 14 of the Ordinance the pre‑requisite for filing an application inter alia are:‑ (a) Service of two months notice on the tenant. (b) The expiry of two months prior to the filing of the ejectment case. In support of the above contention he has referred to the case of Farid Sons Ltd. v. The Federation of Pakistan (1), the case of G. A. Jaffery v. K. P. T. (2), the case of Muhammad Salim v. Sheikh Abdul L,7tif (3), and the case of Mrs. Abdul Malik v. Mst. Asghari Begum (4). (b) On the other hand Mr. Suleman Kassam learned counsel for the respondent has raised the following points :‑ (i) That notice under section 14 of the Ordinance was not mandatory. (ii) That since the appellant sent a reply dated 14‑2‑80 is response to the aforesaid notice dated 30‑1‑80, refusing to hand over, cause of action accrued to the respondent for filing an ejectment application immedia?tely upon the receipt of the above reply. (iii) That in any case during the pendency of rent proceeding, the cause of action had matured as the rent case was filed on 2‑3‑80 and the ejectment order was passed on 9‑4‑81 i. e. after the expiry of more than a year. (iv) That no express objection as to the validity of the notice was raised before the learned Rent Controller‑ in support of his above contention Mr. Kassim has referred to the case of Azad Bin Haider v. Adam Khan (5), the case of Raj Muhammad and others v. Haji Muhammad Zareen and 3 others (6), the case of Amina Begum etc. Y. (1) P L D 1950 Kar. 568 ????????????????????????? (2) P L D 19611 Kar. 32 (3) P L D 1963 Dacca 77 ?????????????????????????? (4) P L D 1981 Kar. 88 (5) P L D 1981 Kar. 225???????????????????????????? (6) 1980 S C M R 139 Mehar Ghulam Dastagir (PLD 1978 SC 220), the case of Manzoor Ahmed Khan v. Syed Magsood Ali (PLD 1975 Lah 1521). 3. (a) In order to appreciate respective contentions it may be pertinent to referto the cases cited by the learned counsel for the parties. (i) Reverting to P L D 1959 Kar. 569, it may be observed that in the above case the suit of recovery of damages amounting to Rs. 1 crore 86 lacs was filed against the Government of Pakistan by the plaintiff. The suit was filed before the expiry of two months notice under section 80, C. P. C. the suit was dismissed on the ground that on the date of the filing of the suit, the plaintiff had no cause of action as the service of a notice under section 80, C. P. C. for a period of two months was a condition precedent to the filing of the suit. (ii) With reference to P L D 1962 Kar. 32, it. may be stated that the fact of the above were that notice of ejectment was served on the tenant on l‑8‑52 and the ejectment case was filed on 27‑8‑52 before the expiry of one month's period. It was held by the High Court that the suit was not competent before the expiry of one month and the order of ejectment passed by the Chief Judge, Small Cause Court at Karachi was set aside by the High Court upon a revision filed before it. (iii) With reference to P L D 1963 Dacca 477, it will suffice to observe that a notice under section 16 of the Transfer of property Act for less than 15 days of the statutory period was held not valid. The ejectment decree passed by the trial Court was set aside by the High Court on the above grounds. (i) As regard' P L D 1981 Kar. 225, it may be observed that in the above case Sajjad Ali Shah, J. while construing section 14 of the Ordinance observed that the requirement of the above section before the filing of, the ejectment case is service of two months but since the validity of the notice was not in issue in the aforesaid case, there is no discussion on the question as to the effect of service of a notice for a short period than the statutory period. (v) With reference to P L D 1981 Kar. 88, it may be stated that in the above case the ejectment case was filed by. the transferee of the property from the Settlement Department before the expiry of 90 days period under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, it was held by the learned Rent Controller that the application was nol competent. ~ However, upon the appeal the First Appellate Court allowed the rent application on the ground that the cause of action had matured during the pendency of the rent application. The above judgmcat waa upheld by Tanzilur Rehman, J. in the above Karachi case. (vi) Reverting to 1980 S C M It 339, it may be observed that the Supreme Court while dismissing the petition for leave, observed that the forum acting under the Rent Restriction is not precluded to take note of the events taken place during the course of proceeding after the institution of an ejectment petition, so as to suitably mould the relief on the basis of altered circumstances in order to avoid multiplicity of litigation and to shorten the proceeding. In the above case also a notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act had no expired by the time of the filing of the ejectment proceeding. (vii) With reference to P L D 1978 S C 220 it will suffice to observe that, in the above case also an ejectment case was filed before the expiry of 3 months' period provided for in sec?tion 3Q of the Displaced Persons (Compensation and Rehabilitation) Act, but the Supreme Court upheld the order of ejectment on the ground that during the pendency of the rent application, the cause of action had matured. (ix) As regards P L D 1975 Lab. 521, it will suffice to observe that a learned Civil Judge of Lahore High Court, K. E. Chohan, J. (as he then was) took the aforesaid view as was found favour with the Honourable Supreme Court in the above two cited and discussed cases. (b) Before the proceeding further, it may be advantageous to reproduce herein below section 14 of the Ordinance, which reads as follows:‑ "Section

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 (i) if he is in occupation of a building owned by him in any locality. (3) Where the tenant has failed to deliver the possession of the 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 may be necessary." It is necessary to state that the above section contemplates service of two months notice on a tenant by a person falling within the category mentioned therein, namely, widow, orphan or a person, who has retired from the service, or has atained the age of 60 years. In the instant case the notice was served on or about 30‑1‑1980, whereas the ejectment case was filed on 2‑3‑8 i. e. much before the expiry of two months. Furthermore, in the notice the appellants were called upon to vacate forthwith instead of on the expiry of two months. However, in the written statement the appellants had no raised any specific plea to the effect that a valid notice under section 14 of the Ordinance was not served on them before the filing of rent application. It is also clear that section 14 of the Ordinance seems to provide an expedition summary remedy to a widow/orphan, to a person, who has retired from the service or who has attained the age of 60 years. If technacalities are t be strictly enforced, the very object of the above provision will be frustrated. I am inclined to hold that the Court is to see, whether there has been sub ‑,9 stantial compliance of the above section. The spirit of section 14, seems to b that a tenant is to be provided 2 months' period prior to ordering of ejectment summarily under the above provision. In the instant case the notice dated 30‑1‑80 under section 14 was served in or about first week of February, 1980, whereas the ejectment order was passed on 19‑4‑1981 i. e. after the expiry of more than one year. Since the Rent case was filed on 2‑3‑80, the Rent Controller could not have passed an ejectment order immediately on receipt of the application for ejectment, as the two months' period had not expired by then. However, during the pendency of the rent application the cause of action matured as admittedly on the date of the passing of the ejectment order, more than one year had expired from the date of service of the notice and from the date of filing of the ejectment case. The principle of law enunciated in the cases relied upon by Mr. Kassam is on all fours applicable to the instant case. Whereas the cases relied upon by Mr. Omarani are distinguishable from the facts of the .instant case. Furthermore, since the appellant did not raise any objection about the validity of the notice before the learned Rent Controller, it would not just and proper to non suit the respondent at the appellate stage after more than one year. In my view technical objections like validity of a statutory notice are to be raised at the earliest. So that defect if any, may be rectified, But a party cannot be permitted to raise such a plea at the appellate stage, particularly, when no material prejudice has been caused to him.

4. It was next contended by Mr. Omarani that even on merits the respondent has no case as she has sought ejectment from the two tenements, each 'of which has 4 rooms, whereas the respondent has 5 children in addition to herself. According to him one tenement would be sufficient to meet the requirement of the respondent.In my view the question of bona fides cannot be investigated into by this Court in an application under section 14 of the Ordinance in view of the difference in the language employed in sections 14 and 15(2) (viii) whereas in the former section the words "in good faith have been deliberately omitted but is the latter section, the same have been provided for. In order to apply under the latter section a landlord is required to prove that he requires the tenement concerned for his personal requirement in good faith. Whereas no such burden of proof is cast on a person applying for ejectment on the ground of personal requirement under the former section (i. e. under section 14).

5. In view 'of the above discussion, I do not find any merit in both two appeals, hence the same are dismissed, but there will be no order as to costs. Mr. Omarani requests for 4 months time and relies upon the case of Abdul Majid v. Naimunnisa (PLD1981SC1180) in which the Hon'ble Supreme Court had granted 4 months time in respect of the ejectment order passed under the aforesaid section

14. I grant four months' time to the appellants on the condition that if they fail to vacate the tenements in question upon the expiry of the above period, the learned Rent Controller shall issue writ of possession against the appellant without further notice to them. s. A. H.????????????????????????????????????????????????????????????????????????? Appeal dismissed.