P L D 1997 Karachi 198 (PLP)

This appeal has been filed by the appellant challenging the judgment dated 5-7-1994 passed by the learned Vth Senior Civil Judge and Rent Controller, Karachi East in Rent Case No.591 of 1993 whereby he allowed the respondent`s application for ejectment of the appellant from the premises in question and directed the appellant to vacate the same within sixty days. Brief facts of the case are that otter Haji Muhammad Usman, the husband of the respondent, was the owner of the building known as ascxam Building situated in Soldier Bazar Area of Karachi and the appellant is a tenant in respect of the flat on the second floor of the said building since quite some time. The said 1xaji Muhammad Usman expired on 22-3-1993 leaving behind the respondent and his 12 children as heirs. Respondent Mst. Zubaida also died during the pendency of this appeal and her legal representatives were brought on record. After the death of Haji Muhammad Usman, Mst. Zubaida, as his widow, served on the appellant a notice dated 16-9-1993 under section 14 of the Sindh Rented Premises Ordinance, calling upon the appellant to vacate the flat in his possession within two months and on appellant's failure to do so filed the above rent case under section 14 of the Ordinance for the eviction of the appellant which was granted by the learned Rent Controller by the impugned judgement. The impugned judgment is attacked by Mr. Ghulam Muhammad Ebrahim the learned counsel for the appellant on several grounds. His first contention is that the notice purportedly issued under section 14 of the Ordinance was invalid as it was obvious from it that the flat in question was required for the use and occupation of respondent's son. The second objection is that in the eviction application too the flat was shown to be required for the respondent's son and not for the respondent himself. Lastly it is submitted that admittedly another flat situated on the first floor of the same building was lying vacant for quite some time and, therefore, the respondent could have occupied the same and as such was not entitled to the benefit of section 14 of the Ordinance. Section 14 of the Ordinance provides for summary procedure for the eviction of a tenant but this can be taken advantage of only by the landlord/landlady falling in the special category specified in subsection (1) thereof and on the sole ground that he/she needs the premises for personal use. As against this, under section 15(2)(vii) the landlord/landlady can get the tenant evicted on the ground that "the landlord required the premises in good faith for his own occupation or use or for the occupation or use of his spouse or any of his children". In section 14(1) the omission to mention the need of the spouse and children as a ground for eviction of the tenant is intentional, obviously with a view to extend the benefit of summary procedure only when the special category of landlord/landlady require the premises for their personal use. * In cases where the landlord/landlady are not covered by section 14(1) or where the premises is required for the use of his/her spouse or children resort will have to be made to the provisions of section

15. In this regard reference may be made to the case of A.S. Mughal v. Mst. Khurshid Azmat Ali PLD 1982 Karachi 406 where it has been observed that:-- "I am of the considered opinion, that it is obvious from the wordings of section 14(1) and section 15(2) (viii), that the need of the children is no ground for moving application under section 14(1) of the Sindh Rented Premises Ordinance, 1979, otherwise the Legislature would have clearly mentioned so, as it has been mentioned in section 15(2)(viii) of the said Ordinance. This omission in my opinion is deliberate, as the proceedings under section 14 of the Sindh Rented Premises Ordinance, 1979, are meant for the benefit of the applicant alone, unlike the proceedings under section 15(2)(viii) of the said Ordinance, as in an application under section 14(1) the question of good faith and bona fides ordinarily are not to be considered any summary procedure for ejectment has been provided, specially for the personal benefit of the applicant alone." The procedure provided under section 14(1) requires the concerned landlord/landlady to inform the tenant by notice of writing 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". Here, in the notice, dated 16-9-1993 sent by the deceased respondent to the appellant purportedly under section 14 of the Ordinance she did not claim that she needed the premises for personal use, instead she stated that, her son Maqsood Ahmad would live in the premises after his marriage. This notice accordingly was not in accordance with section 14 (1) aforesaid and cannot be considered a proper and valid notice under that section. B Not only that the notice showed that the premises was required for the use of the deceased respondent's son, even in the eviction application the same ground was taken. In para. 5 it was stated: "That the marriage of Maqsood Ahmed has been arranged by the applicant and the flat in possession of opponent is required by the applicant for the use of his son Maqsood Ahmed where he will live with his wife." Again in para. 9 of the application it is stated that: "That the tenanted flat is in good faith and bona fidely required by the applicant for the use of her son, hence this application." Mr. Ehsan Illahi Shaikh, the learned counsel, for the respondent argued that mentioning in the notice and the eviction application that the premises was required for the occupation of respondent's son was merely a technical defect and would not affect the maintainability of the application and that ,this defect was cured when the deceased respondent in her affidavit-in-evidence stated that she too intended to live in the flat with her son. No doubt in her affidavit-in?evidence the deceased respondent did attempt to improve her case by saying that, "I say that the marriage ceremony of Maqsood Ahmed has been arranged and I want to keep him in the flat in question with his wife and I also want to live with them". but having regard to the language of the notice and the averments in the eviction application, the statement in the affidavit-in-evidence was not in accord with respondent's case as set up originally and being an afterthought cannot be given much weight. As discussed above the benefit under section 14(1) of the Ordinance would be available to the special category of landlord/landlady only when the premises is required for his/her own personal use and not where the premises is primarily, required for the use of landlady's son and her use thereof is only incidental or secondary in nature, as in the present case. Even otherwise, deceased respondent's notice to the appellant not being a valid notice under section 14(1) of the Ordinance the eviction application based on that notice too was not maintainable. As such the impugned order is liable to be set aside -on these grounds. The last ground urged by appellant's counsel is also not without force It appears from the cross-examination of the respondent that another flat situated on the first floor of the same building was got vacated by the husband of the C respondent and was lying vacant. This fact was not disclosed in the application. and it was also not explained as to why that flat was not sufficient for the needs of the deceased respondent. Under subsection (2) of section 14 of the Ordinance a landlord/landlady is disentitled from availing the benefit of subsection (1) if he/she is in occupation of a premises owned by him/her in any locality. Here, admittedly, a flat owned by the deceased respondent and her children was lying vacant in the same building and could have been occupied by her. It would, therefore, appear that the case would also be hit by subsection (2) of section 14 aforesaid. It was lastly contended by the respondent's counsel that the respondent widow having already expired the benefit of the impugned order has devolved on her legal heirs one of which is the son for whose benefit the flat was required and as such the said son in any case has now become entitled to the said flat. Aid I D for the proposition was sought from the case of Muhammad Aslam through his L.R. v. Wazir Muhammad PLD 1985 Supreme Court

46. That was a case where ejectment had been ordered by the Rent Controller on the ground of personal need of the landlord and while the appeal was pending from that order the landlord expired whereupon an objection was taken that since the ejectment had been granted for the personal benefit of the deceased landlord his legal heirs were not entitled to avail the same. The Supreme Court held that

(i)????? the need of the landlord under section 13(3)(a)(ii) of a non-residential premises is personal to himself or his male child; or to both, as the case may be;. It implies, therefore, that if the death of the relevant person takes place during the pendency of the proceedings before an order of eviction is made, the proceedings abate and do not survive his death; (ii)??? once an order of eviction of the tenant is made under section 13(3)(a)(ii) of the Ordinance, it becomes, on the death of the landlord beneficiary of the order, a part of his heritable estate and the legal representatives can defend the order and claim the benefits arising thereunder subject to all the limitations and exceptions attaching to such an order; . (iii)?? the ordinary powers of a Court of Appeal is to scrutinise the judgment or order under appeal by reference to facts, circumstances, and record as before the Authority or Court passing the impugned order supplemented by such further inquiry as may have been undertaken under section 15(6) of the West Pakistan Urban Rent Restriction Ordinance and administer the law of the land at the date when the Appellate Court is administering it; (iv)?? exceptionally in its discretion, the Appellate Court, may take notice of and give effect to admitted or proved subsequent events ' in order to avoid multiplicity of proceedings, to shorten litigation and to do complete justice between the parties and mould the relief according to the altered circumstances in the larger interest of justice?" ???????????????????? The contention is misconceived that judgment would have no application to a case where the ejectment order is not sustainable on merits. It is obvious from the portion of the Supreme Court judgment reproduced above that the legal representatives are entitled to the benefits under the ejectment order "subject to limitation and exception attaching to such an order". As such if the ejectment order is found erroneous on merits it can always be set aside. The legal representatives of a deceased landlord cannot claim more benefit or better right under the ejectment order than available to the deceased landlord/landlady. For the reasons discussed above this rent appeal is allowed, the impugned judgment dated 5-7-1994 passed by the Vth Senior Civil Judge and Rent Controller, Karachi-East, in Rent Case No.591 of 1993 is set aside and that Rent Case is dismissed. A.A./K-5/K????????????????????????????????????????????????????????????????????????????????????????????????????????? Appeal allowed