1988 PLP 2145 (CLC)

Azhar Ali Khan for Appellant. Sheikh Hamid Hussain for Respondent. This appeal under section 21 of the Sino Rented Premises ordinance, 1979 hereinafter referred to as the Ordinance is directed against the order dated 15‑10‑1986, passed by the IIIrd Senior Civil Judge/Rent Controller, Karachi whereby he dismissed the eviction application filed by the appellant.

2. The facts leading to the filing of the above appeal are that the appellant is the owner/landlord o: building constructed on plot No.468, Central Commercial Area, Block‑2 P.E.C.H.S., Karachi and the respondent is the tenant in respect of shop No.A(1) thereof at the monthly rent of Rs.180. The appellant filed eviction application No.955 of 1985 under section 14 of the Ordinance against the respondent. The appellant averred in the eviction application that he retired from Government service. The appellant further averred therein that after retirement he was employed with Cable and Wireless, Saudi Arabia for a period of two years. The appellant prior to filing of the eviction application served notice under the provisions of section 14 of the Ordinance. The tenant filed written statement and stated therein that the appellant joined the private service and is still in the private service in Saudi Arabia. The appellant filed his own affidavit‑in evidence in support of the eviction application. The respondent filed his own affidavit‑in‑evidence in rebuttal. They were cross‑examined by the learned counsel for the respective parties. The Controller on the basis of the evidence and the material placed before him decided point No.l in the negative and dismissed the eviction application as stated in the earlier part of this judgment. The appeal is against the dismissal order.

3. I have heard the learned counsel for the parties and have also perused the impugned order. The Controller found that no notice under section 14 was served upon the respondent as required by the provisions of section 14 of the Ordinance. This finding is contrary to law. In the case of Barkatullah Khan v. Muhammad Hasan PLD 1986 Kar. 309 the following two questions of the law were referred to a Full Bench comprising of my learned brother Naimuddin, J. (now Chief Justice), Abdul t4adeer Chaudhry and Sateem Akhtar, JJ. (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?"

4. My learned brother Naimuddin, J. (now Chief Justice) answered both questions in the negative while my brethren Abdul Qadeer Chaudhry and Saleem Akhtar, JJ. answered both the questions in the affirmative. The majority view is that the order of eviction should not be passed before the expiry of sixty days from the date of service of notice. In the instant case, it is an admitted position that the appellant served notice upon the brother of the respondent. The eviction application was presented on 1‑9‑1985. The written statement was filed on 4‑3‑1986. The appellant filed his affidavit on 4‑3‑1986. The respondent filed his affidavit on 6‑8‑1986. The eviction application was dismissed on 15‑10‑1986. The order of dismissal was passed after lapse of more than two months. The object of serving notice under section 14 is to inform the tenant that the landlord having qualified, intends to invoke this provision and the premises is required for his personal use. This has been done in this case. In view of the majority view, I hold that the eviction application was maintainable in law.

5. The Controller found that the appellant was not retired from the service. This reasoning is devoid of force. It is an admitted position that the services of the appellant were already at the disposal of Cable and Wireless, Saudi Arabia, for a period of two years with effect from 20‑3‑1983 and completed two years' period on 18‑2‑1985. This was a contractual service. The appellant also retired from Government service. It is an admitted position that he returned to Pakistan on 15‑3‑1985 after completing his service at Saudi Arabia. Shaikh Hamid Hussain submits that the appellant is still in service and he has not yet retired from service. This submission is devoid of force. There is no cogent evidence on record from which it can be inferred that the appellant has not yet retired from the service of Cable and Wireless, Saudi Arabia.

6. The assertion of the appellant that he retired from service and he required the shop in dispute for personal use and occupation should be accepted by the Controller as sufficient. His personal use should be determined in the context of the provision contained in section 15‑A of the Ordinance, which enables a tenant to regain possession from his landlord who had obtained it on a false plea of personal use, but he had failed to occupy the premises within one year of the date of the obtaining of the possession or who relets it to any other person other than the tenant. This is a safeguard for the tenant against being evicted on a false plea of personal requirement of the landlord.

7. For the aforesaid reasons the appeal is allowed and the order of the Controller is set aside. The eviction application of the appellant is granted. I accordingly grant one year from 5‑5‑1987 to respondent to vacate the shop in dispute subject to condition that he will continue to deposit rent in Court during the period. The appeal was disposed of by a short order dated 5‑5‑1987 and the above are the detailed reasons for the short order. H.B.T./A‑364/K Appeal allowed.