1994 PLP 913 (SCMR)

SAJJAD ALI SHAH, J.‑‑‑This appeal with leave of the Court is directed against judgment dated 3‑1‑1993 of the High Court of Sindh at Karachi, whereby RRA. No. 278/91 filed by the appellant herein is dismissed upholding order of ejectment.

2. Briefly stated the relevant facts giving rise to this appeal are that respondent herein being landlady filed application under section 14 of the Sindh Rented Premises Ordinance, 1979 (hereinafter to be referred as the said Ordinance) for summary eviction of tenant from tenement No.12 on the ground floor of New Yorkwala Building situated in Gidwani Street, Karachi which is on rent of Rs.125 per month. Use of the tenement is changed by tenant from residential into commercial.

3. Grounds for eviction mentioned in the application are that the landlady who is ailing has attained age of 61 years and is living with crippled son Rauf on the top floor of the same building. She is suffering from severe CA. of back and her spinal cord and knee are affected 'and in such circumstances she and her crippled son find it inconvenient to reside at the top floor.

4. Appellant before us, who is tenant, filed written statement and asserted that tenement was let out for commercial use and has been used as godown right from the inception of tenancy. Claim of the landlady of wanting the tenement for personal need is seriously challenged as not genuine and in support previous attempts of the landlady to evict the tenant have been quoted. In short stand taken by the tenant in the written statement is that need of the landlady is not bona fide but mala fide: In evidence landlady filed her affidavit and has been cross‑examined. She has examined Abdul Latif, who is son of her husband's brother and has supported her claim.' On the other hand tenant examined her attorney Shaikh Muhammad Islam, who has supported her. After evaluation of evidence learned Rent Controller came to the conclusion that for eviction under section 14 of the said Ordinance, it was not necessary to go into the question of bona fides of the requirement and consequently passed order of eviction. High Court has dismissed the appeal as mentioned above.

5. Leave is granted by this Court in this case to examine whether in, view of the fact that landlady is in possession of residential accommodation on the top floor of the same building, can she press into service section 14 of the said Ordinance to seek eviction of tenant from commercial premises. Mr. J.H. Rahomitoola learned A.S.C. for the appellant (tenant) contended before us that benefit of section 14 of the said Ordinance cannot be invoked in this case for four reasons. Firstly after attaining age of 60 years, landlady increased rent by consent which amounted to fresh letting out and not allowed under proviso to subsection (1) of section 14 of the said Ordinance. Secondly, being already in occupation of the tenement in the same building, landlady is debarred as envisaged by subsection (2) of section 14 of the said Ordinance. Thirdly, for reasons of age and infirmity as stated by landlady, eviction cannot be sought of commercial premises. Fourthly requirement as stated by the landlady is not bona fide but is mala fide.

6. In this case at the very outset of proceedings in the Court of the Rent Controller, controversy appeared from the pleadings whether requirement as expressed by the landlady was bona fide or not. In fact tenant asserted positively in paragraph 8 of the written statement that requirement of the landlady was not bona fide but mala fide. Landlady also in her application for ejectment after describing her age, illness and physical deformities of her son stated in paragraph No.8 that she needed tenement on the ground floor for her personal use and that of her son and both of them would do small business also. In such circumstances there was no legal impediment in the way of learned Rent Controller to frame an issue to the effect whether in this case section 14 or section 15 of the said Ordinance is attracted. In this context it is held by this Court that sections 14 and 15 of the said Ordinance contain two separate causes of action and filing of ejectment application under one would not debar the owner from seeking relief under the other. In support of the proposition reference can be made to the case of Salim Ahmad Khan v. Mst. Jamila Latif (1990 SCMR 1117).

7. In the instant case no issue has been framed whether relief can be invoked under section 15 of the said Ordinance or not although in the pleadings of the parties the controversy whether need is bona fide or mala fide is reflected prominently and some evidence is also produced on that aspect of the matter. On the issue of eviction under section 14, finding of two Courts below is concurrent and in favour of the landlady on the ground that for such relief it is not necessary to go into the question whether need is bona fide or mala fide. As stated above, leave is granted by this Court to examine whether landlady is entitled to relief under section 14 when she is in possession of residential accommodation on the top floor of the same building and whether she can seek possession of commercial premises for the need described by her. In that context against the proposition four grounds advanced by the counsel for the appellant as mentioned above, are pertinent and fall within the scope of leave granting order.

8. If landlady seeks eviction under section 14 of the said Ordinance, then only one ground is available to her which is that she has attained age of 61 years and on that ground she becomes eligible and fall in the category of special persons for whose benefit summary eviction is allowed. Other grounds mentioned by her in her application for ejectment such as her illness and crippleness of her son, show that she wants to seek eviction under section 15 in which question of bona fides or mala fides of the need can be gone into. In her evidence landlady has stated that she is living in the flat on the top floor alongwith Abdul Latif, who is son of brother of her husband but she has not clarified whether that flat is in her occupation as landlady or in the occupation of Abdul Latif as tenant. Even Abdul Latif is not categorical on this point to the effect whether he is tenant of that flat or is just living alongwith landlady. Evidence is not clear on the point that how eviction from commercial premises is being sought for residential or residential‑cum‑commercial use. In the circumstances evidence brought on the, record very clearly suggests that the intention of the parties was to contest eviction under sections 14 and 15 of the said Ordinance together and we do not feel satisfied that the two Courts below were right in holding that landlady is entitled to eviction under section 14 without assessing evidence on the question of bona fides or mala fides of the need.

9. Subsection (2) of section 14 envisages that the landlord or landlady shall not be entitled to avail benefit of summary eviction as contemplated in subsection (1) if he and she is in occupation of building owned by him in any locality. In the case of Bakhsh Elahi v. Qazi Wasif Ali (1985 SCMR 291), this Court has held that landlord in disqualified from invoking provisions of section 14 of the said Ordinance notwithstanding the fact that he is in occupation of building owned by him in any locality which is unsuitable for his needs.

10. For facts and reasons stated above, we are of the view that evidence brought on the record is not properly assessed and is not adequate to justify order of eviction under section 14 of the said Ordinance, hence was set aside the findings of the two Courts below in that respect and remand the case to the Court of learned Rent Controller for adding issue to the effect whether landlady is entitled to eviction under section 15 also and also for deciding the case afresh after giving opportunity to both parties to produce further evidence, if they desire to do so. It would be appreciated if this case is finalized within the shortest possible time. Mr. Rahimtoola counsel for the petitioner has informed us that after petition was filed for leave to appeal, stay was granted by this Court and in spite of that possession had been taken over after the passing of stay order and in that connection oral prayer was made for restitution of possession. We leave this question open to be taken up and dealt with as provided under the law before the learned Rent Controller. In the result appeal is allowed and case is remanded in the terms stated above. M.BA./N‑372/S Appeal allowed.