1986 PLP 1682 (MLD)

Before the Rent Controller appellant examined herself and her evidence is at Exh.A/1, whereas respondent Exh.0/2 was examined before the Rent Controller, and in support he examined Yousuf. Mr. Aftab Kizalbash, contended that burden of proof lies on the respondent to prove that she has no other house. He has referred to a case reported in P L D 1982 S C

465. He has submitted that notice was given to tenant as provided under section 14 of the Ordinance, which is proper one. He has referred to cases reported in P L D 1981 Kar. 794 and P L D 1964 S C 106 and 1980 C L C

831. Mr. Abdul Ghafoor Shaikh, argued that before expiry of two months notice period, the rent case was filed which cannot be termed as proper notice in the eye of law. He has referred to the cases reported in 1984 C L C 1913, 1983 S C M R 191, 1982 C L C

318. He also submitted that respondent is not owner of house in Baldia..Colony as such she is not in occupation of the premises. He cited 19840 L C 2291, 1986 C L C 681, 1983 C L C 458 and P L D 19978 Kar.

19. Mst. Jamal Bibi in her evidence corroborated the version as given in rent application and stated that her husband expired on 24‑1‑1982 and in support she has filed death certificate Exh. A

11. She stated that her husband had not taken Rs.17,500 Pugree from respondent and no such allegation was made in written statement by the appellant filed in Rent Case No.1841 of 1977 which was filed by her late husband. She has admitted in cross‑examination that she is residing in Saeed Abad, Baldia Township but house is in the name of her sons, who are residing with their families with her. She has produced P.T.‑1 as.Exh.A‑11 and stated that it is in the name of her husband. Respondent Habib in his evidence has stated that application is not maintainable as appellant own, possesses and is in occupation of another building on Plot No.M.B.4‑250, Baldia Town Karachi. He has stated that deceased Mohibullah informed him that he was residing on Plot No.5‑J, 568 Saeedabad, Baldia Town, Karachi. Yousuf Exh. 2 has stated that he knew Mohibullah since last 30 years. He shifted from disputed premises to Baldia Town in his own house about 16‑17 years ago, where they still reside. He has also stated that 15 years ago flat was rented out by Mohibullah to the respondent who paid Rs.17,500 as goodwill. He has stated that his late father acted as broker and transaction taken place at their house. The relationship between the appellant and respondent is not disputed. It is also proved that appellant is widow as such rent application under section 14 of the Ordinance is maintainable. The statutory notice under section 14 was given by the appellant but contention of the respondent is that before the expiry of two months the rent case was filed. On this no issue was framed by the Rent Controller and order is silent. Postal receipt and acknowledgment Annexures B and C show that notice was sent on 8‑3‑1984 but it was received by the respondent on 12‑9‑1984 and rent application was filed on 10th March, 1984, therefore, it is an admitted position that rent case filed five days before the expiry of notice period. In notice, dated 7‑3‑1984 the respondent was asked to hand over vacant possession by 7‑5‑1984. Now it is to be seen in the light of the decisions if this fact is sufficient to dismiss the rent case. On this point Full Bench of this Court was, constituted to decide the following questions: (1) Whether notice under section 14, of the Sind Rented Premises Ordinance calling upon the tenant to vacate the premises within 60 days of the receipt of the notice is valid and legal? (2) Whether ejectment application under section 14 Sind Rented Premises Ordinance filed after service of such notice is maintainable?" The Full Bench while deciding these questions in First Rent Appeal No.912 of 1982 in Judgment announced on 29‑9‑1985 have observed as under:‑ "The learned counsel for the appellant has placed reliance on Khawaja Muhammad Razzak v. Omar Farouk, 1982 C L C 318, Muhammad Ashfaq v. Suleman 1985 C L C 2374, but for reasons expressed above, with respect, I am unable to subscribe to that view. Even if for argument sake cause of action for filing ejectment application under section 14 accrues to the landlord on service of notice then if the ejectment application has been filed before the expiry of two months from the service of notice, the same matures during the pendency of the case, provided the ejectment application is not granted within the said period of two months and therefore, proceedings will not be vitiated. Reference can be made to P L D 1984 S C 106, P L D 1978 S C 220, 1980 S C M R 339, and P L D 1975 Lah. 1521. In such case no ejectment shall be granted unless a minimum period of two months has expired from the date of service of notice. In this regard, I would refer to Azizur Rehman v. Abdul Rahim PLD 1984 Quetta 46 where section 13(B) of the West Pakistan Urban Rent Restriction Ordinance, 1959 as amended by Baluchistan Urban Rent Restriction Ordinance, 1980 (Ordinance III of 1980) came u p for consideration. Section 13 (B) (1) (b) provides that in a case, where the landlord is a salaried employee and is retired, or due to retire within a period of six months a notice in writing is to be given by such landlord, or widow or minor of the deceased landlord to the tenant of a building informing that he or she needs the building for personal use and require him to deliver vacant possession of the building within a period of two months. Interpreting this provision, it was observed as follows: ‑ "The law has allowed two months time after service of notice under subsection (1) of section 13‑B to the tenant before he can be summarily ejected from the premises. The period of two months allowed to the tenant for handing over possession to the landlord is not an essential prerequisite of the proceedings initiated by the landlord before the Controller under this provision. However, the Controller cannot direct summary ejectment of the tenant before the expiry of two months from the date of notice where the landlord files an application for ejectment on the ground provided under section 13‑B of the Ordinance before the expiry of period of two months. In fact the provision of laws as contained in subsection (5) of section 13‑B of the Ordinance is a facility granted to the tenant to vacate the premises in two months time. A tenant would be liable to vacate the premises when demanded so by the landlord forthwith but this for provisions His summary ejectment too cannot be directed unless this period has expired." The view that the provision of section 14 requiring service of notice should be liberally interpreted finds support from numerous cases including 1979 S C M R 185, 1985 S C M R 24, P L D 1981 Kar. 794 and P L D 1984 Kar. 498 where provision for notice under section 13‑A of Urban Rent Restriction Ordinance has been so interpreted. Although section 13‑A requires that "the new owner shall send an intimation" of transfer in writing by registered post to the tenant, knowledge of transfer obtained by the tenant by some other source, and filing of ejectment application stating the factum of transfer has been treated to be sufficient compliance with the provision of law. For the above discussion, it is clear that unless the institution of a proceeding without a notice within a particular period or form is prohibited, the provision of a statute requiring notice to be served in a particular form which affects and has impact on the proceeding has been held to be directory and not mandatory. The provisions relating to notice have been liberally construed. If the notice gives substantially the information required by law in clear and understandable manner, then omission to give certain details or failure to mention a particular date in a particular manner or any other similar technical defect will not invalidate the notice. For these reasons my answer to the question is as follows: Question No.1. In the affirmative. Question No.2. In the affirmative. The order of ejectment, however, should not be passed before the expiry of sixty days from the date of service of notice." Therefore, it is clear that application under section 14 filed few days before expiry of notice does not suffer from any defect. The intention of the notice of 60 days is that tenant should have sufficient time to vacate the premises. The application as such was competent. Now I come to next relevant question if appellant is in occupation of her own premises. It has come in evidence and appellant has admitted that she is living in Saeedabad Baldia Township and house is in name of her sons. She has denied that House No.M.B‑4/250 in Baldia Town is owned by her but in P. T.‑I name of her husband is shown as owner. She has not produced any document in respect of house of Saeedabad, Baldia Town where she is living with her sons. She has not examined her sons whereas the contention of the respondent is that she is living in her own house in Saeedabad, Baldia Town, Karachi and also own a house No.M.B‑4/250 in Baldia Town. The P.T.‑I shows that premises consist of 3 rooms and 4 shops. She has admitted that record of the above premises is still on the name of her late husband. From the facts of the case, it is clear that appellant has not come forward with clean hands to get benefit of summary eviction under section 14 of the Ordinance. Any person who is in occupation of his own premises cannot avail of benefit of section 14 of the Ordinance Therefore, the Rent Controller has rightly dismissed the rent case and order is a speaking order which calls for no interference. The appeal is dismissed. H.B.T. Appeal dismissed.