1983 PLP 349 (CLC)

(b) Sind Rented Premises Ordinance (XVII of 1979)‑

S. 14(1) & (3)‑Notice, object of‑Landlord failing to substantiate allegations that notice was served on tenant before filing application‑ Object of notice can be achieved only if order by Rent Controller for eviction is passed after expiry of period of two months from service of notice of application of landlord on tenant. (c) Sind Rented Premises Ordinance (XVII of 1979)‑

S. 14(1)‑Service of notice‑Non‑suiting a landlord‑Service of notice of application on tenant and expiry of two months period, held, a substantial compliance of provisions of S. 14(1)‑Landlord cannot be non‑suited on technical ground as he can bring another application after service of notice for which there can be no defence. A. Aziz Khan for Appellant. Hafiz A. Baqi for Respondent. Date of hearing 4th October, 1982. This appeal is directed against the order of eviction passed by VIth Rent Controller, Karachi, against the appellant on the application of respondent filed under section 14 of the Sind Rented Premises Ordinance, 1979. The respondent who is a widow applied to the Controller for an .order of eviction against the appellant alleging that the appellant was called upon to vacate the premises but in spite of service of notice he failed to vacate the premises. The appellant disputed service of notice upon him before institution of the application but the Controller after recording evidence of the parties held that such a notice was served on this appellant before filing of the applica tion by the respondent and accordingly passed order of eviction against the appellant as required by law. The learned counsel for the appellant contends that the findings of Rent Controller that the notice under section 14(1) of the Ordinance was duly served on the appellant before filing of the application by the respondent is erroneous as service was not at all proved and therefore the application filed by the respondent before the Controller was not maintainable in law. In the case before the Controller the respondent examined herself and tendered in evidence a postal envelope containing the notice addressed to the appellant. This envelope was returned by the postal authority to the respondent with the endorsement "refused". The rent controller held that the address given on the envelope was correct and the, endorsement made by the postal authorities was genuine and therefore under section 114(f ) of the Evidence Act, the service of the notice should be presumed to have been made on the appellant. The learned counsel for the appellant contends that in view of the statement of appellant on oath denying service of notice on him and the correctness of the endorsement of postal authorities on the envelope, the presumption of service of notice arising under section 114 of the Evidence Act was sufficiently rebutted. The contention of the learned counsel is not without force. The respondent was suggested in the cross‑examination that the endorsement of refusal on the postal envelope was obtained by her collusively and that the appellant never refused to accept the notice. The appellant in his own evidence on oath before the Controller stated that the evelope was never offered to him and he never refused to accept the same. In these circumstances, the learned counsel for the appellant rightly contended that the presumption of service of notice under section 114 of Evidence Act, was sufficiently rebutted and in order to prove the service of notice it was necessary to examine the postman who made the endorsement of "refusal" on the envelope. However, I am unable to accept the further contention of the appellant that as the notice under section 14(1) of the Ordinance was not proved to have been served on the appellant therefore the proceeding under section 14 of the Act were incompetent under the law. The learned counsel for the appellant relied on the case of Khwaja M. Rehman v. Umer Farooq (1982 C L C 318) in support of his contention. In the above cited case a learned Single Judge of this Court held that a notice calling upon the tenant to vacate the premises within 2 months of the service of notice did not meet the requirement of section 14(1) of the Ordinance and therefore the application of the landlord under section 14 of the Ordinance seeking ejectment of the tenant was incompetent for the aforesaid defect in the notice. The case do support the contention of the appellant's counsel but with utmost respect. I am unable to persuade myself to subscribe to the view expressed in the above case.‑ In my humble view the object of notice under section 14(1) of the Ordinance, is to allow the tenant a reasonable opportunity of vacating the premises where it is required for personal use of the person who is in the category of persons specified in this section. The scope of enquiry under section 14 of the Ordinance was examined by me in the case of Ulfat Hameed v. Birjis Khatoon (P L D 1982 Kar. 823) and I had held in that case that the enquiry before the Controller in a case under section 14 of the Ordinance must confine to the objections raised by a tenant to jurisdictional facts and not to the genuineness or otherwise of the needs of landlord. A plain reading of subsection (2) of section 14 of the Ordinance will show that a landlord is not entitled to avail of the remedy under subsection (1) of the Ordinance, if be is in occupation of a building owned by him in any locality and subsection (3) of that section provides that where the tenant' has failed to deliver the possession of the building under subsection (1), the Controller shall, on the application by the landlord in this behalf, order eviction of tenant from the. building in a summary manner by using such force as may be necessary. In my humble view where the landlord makes an application under subsection (3) of section 14 of the Ordinance, on the allegation that notice was served on the tenant before filing the application as required under subsection (1) of section 14 of the Ordinance and fails to substantiate his allegation regarding service of prior notice at the trial then the object) of notice under this section can be achieved if the order is made by the Controller for eviction of tenant after expiry of the period of two months from the service of notice of application of the landlord on the tenant. The service of notice of application of landlord on the tenant and expiry of period of two months in such circumstances, in my view, will amount to sub stantial compliance of provision of subsection (1) of section 14 of the Ordinance and it will not be proper to non‑suit a landlord on this technical ground as he C can again bring another application after service of notice to which there can be no defence if he otherwise fulfils other qualifications laid down in section 14 of the Ordinance. I am therefore of the view that the landlady/respondent though did not properly discharge the burden of proving service of notice under section 14(1) of the Ordinance on the appellant but for that reason her application could not be defeated as the order of ejectment in the present case was passed long after the expiry of period of two months from the date of service of notice of her application on the appellant. I therefore find no reason to interfere with the order of Controller and dismiss this appeal but there will be no order as to costs. However, as the question of law decided by me is of considerable importance and a contrary view has been expressed in a reported case, I allow four months' time to the appellant to vacate the premises so that he may avail of the remedy of filing a petition for leave to appeal before the Supreme Court if he so chooses. M. Y. M. Appeal dismissed.