P L D 1988 Karachi 619 (PLP)

SAJJAD ALI SHAH, J.‑‑Impugned in this appeal is order of eviction passed under section 14 of Sind Rented Premises Ordinance, 1979 (hereinafter to be referred as said Ordinance) by learned Vth Senior Civil Judge and Rent Controller, Karachi East on 27th January, 1988. Briefly stated relevant facts are that appellant and respondent are tenant and landlord respectively (hereinafter to be referred as such) of the tenement in question which is residential accommodation situate on the ground floor of plot No.13‑H/6, P.E.C.H.S., Karachi at monthly rental of Rs.2,

750. Landlord applied for eviction on the ground that on 3‑12‑1986 he would attain age of 60 years and would retire from his service in United Nations Food and Agriculture Organisation with headquarter at Rome in Italy and return to Karachi for permanent settlement. In the written statement relationship was denied on the ground that owner of the tenement in question is Mst. Fahmida and not the present landlord and further that there was sufficient accommodation available with landlord on the iii‑st floor of ‑the same plot. In evidence landlord Rifatullah filed his affidavit and he was cross‑examined. He also produced some documents in support of his claim. Likewise tenant examined his attorney Muhammad Jamil, who was cross‑examined. Two issues were framed one with regard to relationship and the other with regard to attainment of age of 60 by landlord and his requirement of premises in dispute for his personal use and both issues were found in favour of landlord, hence order of eviction. During the hearing of appeal before me learned counsel for tenant aid not press issue of relationship but assailed finding in the impugned order on the ground that landlord had failed to produce sufficient and satisfactory evidence in support of his claim as such eviction on that ground was not justifiable. It appears from the record that according to landlord accommodation on the first floor of the same plot is in occupation of his two sisters out of whom, one is married and brother, who' is handicapped. Landlord has also stated in his application for eviction, that he is posted in Rome, where he is staying wits, his family. In other words it can be said that accommodation on the first floor on the same plot is in occupation of landlord temporarily looked after by his sisters and brother as stated by him. Landlord has not said that his sisters and brother are his tenants as such that accommodation is not available to him. In this context landlord stated in his affidavit of evidence that he proposed to settle down permanently in Karachi with his wife and two daughters of marriageable age. About the accommodation on the first floor of the same plot, he stated that accommodation on the first floor of the bungalow always remained it, occupation of the family of his married sister Nlst. Hameeda Abdullah as well as by his brother Shoukat Alvi, who is physically disabled and handicapped and one other unmarried sister Fahmida Alvi. Landlord further stated in the affidavit that in view of occupation by family members, little space was left for him and his family, whenever they came for temporary visits to Karachi. He reiterated the fact that his‑sisters and brother were in occupation of first floor and relied upon joint affidavit filed by them and two others namely Rizwan Abdullah and Haroon Abdullah, who are sons of Hamida Abdullah. This affidavit marked A‑7/1 is very short and is to the effect that deponents live on the first floor of the bungalow 13‑H /6 P. E. C . H . S. Karachi. This affidavit is filed for the reason that tenant has taken the stand that first floor is in occupation of landlord and is tying vacant. In this context landlord in his cross‑examination has stated that it is correct that one of sons of Mst Hamida Abdullah is posted in Rawalpindi and husband of Mst. Hamida is living in England since 1957. Attorney of tenant stated in his affidavit before the Court of first instance that on the first floor only Shoukal brother of landlord resided and landlord also stayed there whenever he came to Karachi on short visits. He further stated that Mst. Fahmida did not reside on the first floor but resided with her niece. He further categorically stated that neither Mst. Hamida nor any of her sons resided on the first floor. In such circumstances particularly in view of this positive assertion by attorney of tenant that none lived on the first floor except Shoukat, landlord should have examined his sisters and other inmates, about whom he claims that they live on the first floor. Mere production of affidavit on this point is not helpful for the reason that deponents were not made available for the purpose of cross-examination In any case even if word of landlord on this point is believed, it can be said that they are holding over occupation of the first floor for landlord till he returns. It is for landlord to accommodate his sister and brother and other relatives or not to addition to his own family of wife and daughters. Landlord has admitted in his cross- examination that house in question is built on 1000 Square yard and there are four bed rooms on the first floor. This accommodation appears to be sufficient for a small family of four members Legally speaking as contemplated under section 14 of the said Ordinance, premises can be required for "personal use" of landlord and "personal use" is defined in section 2(g) to mean the use of premises by the owner thereof or his wife (or husband), son or daughter. It is very clear that brothers and sisters and their children are not included in the definition of "personal use" as such premises cannot be acquired for their benefit. Likewise if such relatives not included in the definition of "personal use" as stated above are in occupation of premises of landlord gratis without payment of rent due to his courtesy, then they would be treated as holding over occupation on behalf of landlord, and it would not be open to landlord A to say that such premises are not in his occupation but in occupation of others. Intention of law is very clear that even in section 15(2).(vii) of the said Ordinance under which premises can be acquired in goon faith for personal use, the same is narrowed down for the benefit of landlord, his wife or any of his children providing further therein no room for any other relatives. Now since relief under section 14 of the said Ordinance is special relief for the benefit of landlord and the procedure is also shortened with the intention of providing this relief to the landlord as promptly and expeditiously as possible, hence it is incumbent upon the landlord to provide satisfactory evidence in support of his claim of special relief so that the Court feels convinced to grant the same as soon as possible: It is indisputable that evidence to be produced by landlord in this context is subject to judicial scrutiny to find out whether need is genuine. Reference can be made to the case of Syed Israr Alam v. S.M..Hussain (1983 C L C 468) Landlord has to satisfy the Court that he really needs the premises and that need is not just a mere wish or desire but a practical necessity. No doubt burden on landlord is not as great as to prove bona fide requirement but even then he has to produce sufficient evidence of satisfactory nature to prove need as different from desire In support of this reliance can be placed on the case of Ghulam Muhammad v. Zahir Ahmad Khan (1986 C L C 681). It is held by the Supreme Court of Pakistan in the case of Bakhsh Elahi v. Qazi Wasif Ali (1985 S C M R 291) that intention of legislature was to grant the privilege to such a landlord to get possession of one of his buildings by the summary procedure, which privilege would lapse if he already has in occupation any other building either before or after the time of accrual of the privilege in terms of section 14(1) or if he lets out anyone of his building after the .relevant time specified in the provision in question. In view of the legal position stated above, contention of Mr. Farooq Naik, Advocate for tenant that section 14 of the said Ordinance would not apply in this case for the reason that landlord is already in occupation of equal part of the same building, which is sufficient for his need, has sufficient force and substance. On this point Mr. Akhtar Mahmood, Advocate for landlord argued that occupation of first floor by sisters and other relatives of landlord is temporary in nature and not permanent for the reason that landlord stays abroad and comes to Karachi during holidays for short stays. I, therefore, hold that landlord has in his occupation first floor which is sufficient accommodation for his need. Next point urged before me is whether service of notice under section 14 of the said Ordinance on tenant by landlord was valid or not. According to the counsel of tenant, it was not valid for the reason that notice was not accepted by the tenant himself but by his wife. On this point that if there is defect in the service of notice under section 14, what would happen, reference for guidelines can be made to the case of Barkatullah Khan v. Mirza Muhammad Hasan (P L D 1986 Kar. 309) which is decision of Full Bench of our High Court consisting of three Judges. In this case majority view of two Judges is that section 14(1) of Sind Rented Premises Ordinance, 1979 is divided into two parts. One relating to the jurisdiction and qualification for invoking this provision is mandatory and the other with regard to the service of notice is directory. It is further held that this provision with regard to the service of notice is to be interpreted liberally and if there is any infirmity, the same is curable and does not amount to illegality vitiating entire proceedings. I may as well point out here that Sind Rented Premises Ordinance, 1979 is special law under which Rent Controller decides rent cases, purpose of which is expeditious disposal of such cases without any delay. Under the said Ordinance remedy under section 14 is extra special remedy where eviction is to be granted by following summary procedure. For relief under this provision no particular procedure is prescribed for the reason that intention of the law‑maker is to empower the Rent Controller to evolve his own procedure. In the instant case defect alleged is that notice under section 14 ‑of the said Ordinance was not served upon tenant directly but was served upon wife of the tenant as is evident from acknowledgement receipt produced by the landlord alongwith his application for eviction This defect will not come in the way of the proceedings for the reason that it is curable and stands cured in the light of the face that it is not disputed that. notice was not received by the wife of tenant. Secondly when ejectment application was filed, notice of that application was served directly .on the tenant himself who had put his signature on the copy of the notice on which there is also report of bailiff that he had served the tenant directly. After that tenant engaged Advocate Mr. Khawaja Naveed Ahmed who filed his Vakalatnama in the Court and requested for time to file written statement which was subsequently filed and the case was contested. As held in the case of Barkatullah Khan v. Mirza Muhammad Hasan mentioned above part of section 14 of the said Ordinance relating to the service of the notice is directory in nature hence the defect alleged in the service of notice is cured because even if .it was not served directly on the tenant no prejudice was caused because subsequently tenant gained knowledge and participated in the proceedings in respect of eviction sought under section 14 of the said Ordinance. It was argued before me on behalf of landlord by Mr. Akhtar tdahmud, Advocate that eviction was sought under section 14 of the said Ordinance on the grounds that landlord was to attain age of 60 on 3‑12‑1986 and was to retire from service and in respect of such claims. sufficient evidence has been produced by the landlord before the Rent Controller. Perusal of the record in the Court of Rent Controller shows that in support of claim of age photostat copy of passport has been produced which shows that landlord was born on 3‑12‑1926. Production of photo copy of passport is assailed on the ground that it is not conclusive evidence of age and in order to G prove age birth certificate or School leaving certificate or such other documents connected with record of service should have been produced. It is further submitted on behalf of the tenant that in the passport any age can be given by the person in whose favour the passport is~ issued and that age would be entered without further verification. Of course, it is for the Rent Controller to be satisfied with regard to the evidence produced before him for determination of age. Landlord l could have produced some other documents as mentioned above of conclusive nature to prove his age. So far the question of retirement from service is concerned plea taken by the landlord has remained ambiguous right from the beginning. In the application for eviction in paragraph 4 landlord has stated that after attaining age of 60 years, applicant is "eligible" to retire from the abovesaid job and plans to return home at Karachi for permanent residence. In affidavit of evidence the landlord stated in paragraph V that after attaining age of 60 years he is "eligible" to retire under F.A.0, Rules Manual, section 301.095. He has also produced certificate issued by Dr. Raymond E. Fort, F. A.O. Representative Food and Agriculture Organization of the United Nations. This certificate available on the record marked A‑6 at page 77 reads as under:‑ "TO WHOM IT MAY CONCERN F.A.O. RULES MANUAL SECTION 301.095 This is to certify that Mr. M.R. Alway is an F.A.O. staff member stationed in Rome and, like all other F. A .O. staff members is 'eligible' to retire at the age of 60 years under above F.A.0. Rules." It appears that actual rule is not produced and in this certificate again word used Is "engible". In the Concise Oxford Dictionary "eligible" is defined as fit or entitled to be chosen for office etc, desirable, suitable. Word eligible shows that the person is entitled and can be chosen for that purpose. There is no dispute about the fact that the person Who is eligible may or may not attain the goal. The person who is eligible for retirement cats also be allowed to continue in service after the due date. In any case according to the application for eviction, landlord had to retire on 3‑12‑1986 but when he was cross‑examined in the Court of Rent Controller on 5‑2‑1987, he admitted that he was still in the service and had not taken his retirement. Be that as it may, in the instant case whatever evidence is produced by the landlord on the points of age and retirement is not helpful to him to advance his case for the reason that at the time of filing of ejectment application and after that, he was and continued to be in occupation of equal residential accommodation on the first floor of the same plot on which on the ground floor residential accommodation in dispute is situate. For that reason application of landlord for eviction under section 14 of the said Ordinance by way of summary procedure was not competent. For the facts and reasons mentioned above I set aside the impugned order .of eviction and allow the appeal. H.B.T./I‑57/K Appeal allowed.