1996 PLP 544 (MLD)

(i) Whether the applicants are entitled for ejectment of the opponents from the demised premises under section 14 of Sindh Rented Premises Ordinance, 1979? (ii) What should the order be? The respondents/landlords filed affidavit‑in‑evidence of Mr. Khalil Ahmad and appellants/tenants filed affidavit‑in‑evidence of Mr. Waheed Ahmad Sheikh. Both deponents were cross‑examined by the respective counsel of the parties. Learned Rent Controller after recording the above evidence and hearing the learned counsel, allowed the ejectment application of the respondents. I have heard Syed Amjad Hussain, learned counsel for appellants and Mr. Khalilur Rehman, learned counsel for respondents and perused the record and proceedings of the case and the case‑law cited by both the counsel. Contentions of Syed Amjad Hussain are: (1) That respondents as pet their own admission are in occupation of building owned by them, therefore, are not entitled to seek ejectment under the said provision of law; (2) That respondents/landlords would be entitled to have the possession under the said provision of law for their personal requirement and not for the requirement of their grown up sons; and (3) That respondent Khalil Ahmad was of 68 years and Ahmad Din was 63 years of age on the date when ejectment application was filed, therefore, the ejectment application under section 14 of the said Rent Ordinance having been filed long after attaining the age of 60 years would be not maintainable. Syed Amjad Hussain, learned counsel fc appellants/tenants has taken me through the impugned judgment of the learned Rent Controller and has placed his main emphasis on the cross‑examination of the respondent. The said portion of the cross‑examination runs: "I required the premises in question for my son Shahid Ahmad. I am not doing any business. Previously I was doing business of bicycles at Katcheri Road with my brother Ahmad Din & Co. and I was the partner of Ahmad Din & Co. I do not remember the number of shop, namely Ahmad Din & Co. I cannot say whether I and other partner of company purchased the shop. Voluntarily says that it was on rent in the beginning I have got retirement from this business. My son Ilyas is working separately in the name and style of Impo Expo, Corporation on Katchery shop. It is another shop which is owned by me. My another son Yousuf is doing business of Motor Parts at Maclean Road at a rented shop .My son Shahid is working at his house .He possesses one room for his business of Import and Export in the name of Shahid Trading Co ..The house at present where I am residing is partly on the main road and partly away from the main road. But it is a corner plot .My son must be doing business since 1980 in the house. I own commercial building in North Nazimabad which is on rent. But I do not remember the area of commercial plot of North Nazimabad. " Learned counsel for the appellant has placed reliance upon Mst. Zubaida Ismail v. Mst. Zohra Sultana 1989 CLC 1121, Mst. Kalsoom Begum v. M/s. Elite Cone Industries and another 1989 CLC 969, Matloob v. Mst. Saeed Khatoon 1988 SCMR 1575, Arshad Butt v. Manzoor Ahmad 1992 CLC 723, Manzoor Hussain v. Naheed Akhtar and 14 others 1991 MLD 724, Hazrat Shah v. Dr. Muhammad Hanif 1992 MLD 318, Bakhsh Elahi v. Qazi Wasid Ali 1985 SCMR 291, Sabir Ali v. Zahoor Ahmad Khan 1988 MLD 31 and Ulfat Hameed v. Mst. Birjis Khatoon PLD 1982 Kar. 823 in support of his contentions. Mr. Khalilur Rehman, learned counsel for respondents has argued that earlier Ejectment Application No. 1048 of 1980 was filed under section 15 of the Rent Ordinance and it failed in the High Court on technical ground that lease period of 30 years has not expired on the date when ejectment was made therefore, the present ejectment application under section 14 of the Rent Ordinance would not be barred and would be maintainable under the law. He has further argued that the respondents/landlords before the expiry of lease period could not have come either under section 14 or 15 of the Rent Ordinance for ejectment of the appellants on the ground of personal requirement. He has further argued that after the expiry of lease period on 9‑3‑1989, the present ejectment application under section 14 was filed on 21‑5‑1989, therefore, the respondents/landlords would be entitled to have possession of the said plot. He has argued that there is no limitation fixed under section 14 of the Rent Ordinance in respect of the filing of the ejectment application, therefore, filing of instant ejectment application after three years of attaining the age of 60 years would not affect the right of the respondents to seek ejectment under the Rent Ordinance. He has further argued that there was no evidence on record to show that the respondents were occupying their own commercial premises which could disentitle them from getting the respondents ejected from the plot in question. He has submitted that the respondent in the cross‑examination has stated that "I have got retirement from this business" which would not mean that he has retired for all the time to come from doing any other business as well and that in the cross=examination respondent further stated "It is another shop which is owned by 'me", word "owned" would not mean that the respondent was in occupation of the said shop as it was in possession of his another son Ilyas and further that the respondent in cross stated: "My son Shahid is working at this house. He occupies one room for his business of Import and Export in the name of Shahid Trading Company," which would show that respondent's son Shahid was working in his house, as such the same was not a commercial premises but residential house therefore the respondent could seek possession of the plot in question which was a commercial one for raising commercial complex. He has placed reliance upon Abdul Majid v. Mst. Naimun Nisa Begum PLD 1981 SC 118; Syed Amjad Ali Shah v. Iqbal Ahmad Farooqi and others PLD 1985 SC 242, Abu Bakar and another v. Abdul Haleem PLD 1991 SC 302, Muhammad Rifatullah Alvi v. I=an Ansari PLD 1990 SC 369, Mrs. M.S. Baroba v. Manzoor Ahmad 1992 SCMR 1158; Muhammad v. Dilawar Khan Durrani 1987 MLD 2155, Mst. Zubaida Ismail v. Mst. Zohra Sultana 1989 CLC 1121, Mst. Razia Khatoon v. Dr. Roshan H. Nanji and another 1991 SCMR 840 and Amin Akhtar Jami v. Jahangir Alam 1993 MLD 1530 in support of his contentions. Section 14 of the Rent Ordinance runs. "

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 sub section (1) 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." This section provides aright to the landlord who is widow, (ii) orphan, (iii) old person who has attained the age of sixty, (iv) salaried employee due to retire within six months or has retired, to get the rented premises vacated from the tenant except where he has rented out his building after incurring the abovesaid disability of is in occupation of a building owned by him in any locality. In the instant case, the plea of the learned counsel for appellants is that the respondent himself has admitted in the cross that he has retired from the business and was owning another shop and that his son Shahid was carrying on the business of import and export in .the name of Shahid Trading Company in one room of his house, therefore, the respondents being in occupation of the said premises which belonged. to him would be disentitled from seeking eviction of the respondents from the said plot under section 14 of the said Rent Ordinance and further that respondent has specifically stated that he required the premises in question for his son Shahid who was already in possession of one room in the house of ‑respondent where he has been carrying on the said business since 1980 when under section 14 of Rent Ordinance it was only the landlord/respondent who would be entitled to seek eviction of tenant and not for his son. It is correct that son of the respondent is carrying on business in one room of the house since 1980 but the said building being in occupation of the respondent's son could not be said to be a building in occupation of respondent within the meaning of subsection (2) of section 14 of the Rent Ordinance. I would also say that as the said building is a residential one could not be used for commercial purposes for which eviction has been sought. Reference is made to Abdul Majid v. Mst. Naimun Nisa Begum PLD 1981 SC 118 and PLD 1994 SC 716 wherein Supreme Court of Pakistan has held‑‑‑ "to our mind subsection (2) of section 14 cannot be read in isolation from subsection (1) of section

14. Nexus between personal use for which eviction is sought and premises said to be owned and possessed by the landlord in any locality being imperative, referred to in subsection (2) of section 14 of the Rent Ordinance": The bar contained in subsection (2) of section 14 of Rent Ordinance would not be attracted in the G instant cases as the respondents could not be said to be in occupation of the commercial building for which eviction has been sought against the appellants considering also the fact that the room in occupation of the son of respondent was part of residential building while the respondent needed the building for commercial complex for his son Shahid. The testimony of respondent could not be shaken in the cross‑examination by the appellant and nb rebutting evidence is adduced to show that the respondents were in occupation of any, other non‑ I residential building of their own. The next contention of the learned counsel for appellant is that the respondent in the cross has admitted that he required the said plot for the use of his son Shahid but section 14 of Rent Ordinance stated that eviction could be sought against the tenant only by the landlord when the rented premises is required by the landlord personally and not for the use of his children. In fact, the expression "personal use" specified in section 14 of the Rent Ordinance would include the use of owner of spouse or son or daughter. Reference is made to Mst. Zubaida Ismail v. Mst. Zohra Sultana 1989 CLC 1121. In Muhammad v. Dilawar Khan Durrani 1987 MLD 2155 case learned Judge in Chamber observed at page 2159: "Section 14 of the Ordinance provides that the .class of landlords specified therein can seek eviction of tenant from the building for personal use. 'Personal use' is defined in clause (g) of section 2 of the 13 Ordinance as the 'use of the premises by the owner thereof or his wife (or husband) son or daughter.' Obviously the expression 'personal use' employed in section 14 of the Ordinance includes the need of the children of the owner/landlord. " In the circumstances, the contention of the learned counsel for appellants that the respondents would not be entitled to seek possession of the plot in question for the use of his son under section 14 of Rent Ordinance has no merit. The next contention of the learned counsel for appellants is that the respondents have waived their right to get possession of plot in question under section 14 as they moved the Rent Controller long after attaining the age of 60 years, therefore, they were not entitled to seek eviction of appellants. This contention of the appellants' counsel has also no merit and substance. Under section 14 of the Rent Ordinance the expression "a person who is due to attain the age of sixty years within the next six months or attained the age of sixty years" does not prescribe any time limitation after one has attained the age of sixty years for seeking eviction under the law. It is not the intention of above provisions of law that as soon as one attains the age of sixty years, he should immediately rush to the Rent Controller for eviction but law intended that within sufficient time after one has attained the sixty years should move the Rent Controller. In the instant case, it is admitted position that earlier Application No. 1048 of 1980 for ejectment was filed under section 15 in the year 1980 when respondent Khalid Ahmad was 61 years of age but that application could not succeed in F.R.A. No..804 of 1983 before this Court on the ground that lease period was subsisting. In fact the respondents were pursuing the remedy for seeking possession of the plot in question since 1983 but ultimately this Court in F.R.A. No.804 of 1983 disallowed the relief of possession to them and thereafter on 21‑5‑1989, ejectment application was filed when the period of lease expired on 9‑3‑1989, therefore, it could not be said that there has been inordinate delay in approaching the Rent Controller for the relief of possession of plot in question under the law by the respondents. Reference is made to Hafiz Abdul Malik v. Muhammad Ilyas PLD 1989 SC 356 where the Supreme Court of Pakistan allowed eviction application under section 14 of Rent Ordinance when the landlord had moved ejectment application for over. 15 years after attaining the age of sixty years because of past litigation. It will not be out of‑place to mention here that appellants in the written statement have taken up the plea that age recorded in the National Identity Card was not correct and it was not pleaded in the written statement that the respondents have approached the Court for the relief of possession long after attaining the age of 60 years by the respondents but at this appellate stage this new plea has been raised for which no specific issue was got settled before the Controller. The respondents/landlords could not come to the Controller for eviction against the appellants for the plot in question prior to the expiry of lease period and admittedly lease period expired on 9‑3‑1989 whereas the respondents/landlords filed eviction application on 21‑5:‑1989, therefore, there could not be said to be delay in filing the ejectment application. Reference is also made to Mst. Zubaida Ismail v. Mst. Zohra Sultana 1989 CLC 1121 wherein learned Judge in Chamber observed at page 1125:‑‑ "The delay in making application under section 14, by itself would not defeat the application of eviction, if the landlady fulfils all the requisite conditions, as the Sindh Rented Premises Ordinance, 1979, does not prescribe the period within which such application is to be filed. " In view of the above facts, evidence and the case‑law, the contention of the appellants' learned counsel that there has been inordinate delay in filing the eviction application under section 14 of Rent Ordinance, therefore, the respondents be deemed to have been waived their right of eviction, has no merits and substance. No other plea has been raised before me in appeal. The impugned judgment is legal and based on proper appreciation of evidence on record. Accordingly, appeal has no merits which is hereby dismissed with the direction to the appellants to hand over the vacant possession of the plot in question to the respondents within a period of ninety days subject to payment of rent. H.B.T./P‑336/K Appeal dismissed.