1989 PLP 612 (MLD)

(1) That he required the premises for personal use as he was retired from Government service after reaching the age of superannuation. (2) That he required the premises for the use of his two sons namely Feroz and Naim who are also Doctors. (3) For reconstruction of building for opening medical complex for which he had obtained necessary sanction from the competent authority. The rent case was resisted by both the tenants but the learned Rent Controller accepted all the three grounds of the respondent/landlord and ordered eviction of both the tenants. Bot the tenants have filed appeals in this Court which bear FRA Nos.14 of 1988 and 22 of 1988. In both the appeals appellants/tenants have moved application under section 21(2) of the Ordinance. I have heard Mr. Abdul Sattar Shaikh for the appellant in F.RA No.14 of 1988, Mr. Anwar lamali learned counsel for the appellant in FRA. No.22 of 1988 and M/s. Noor Nabi Memon and Haji Muhammad Ismail Memon for the respondents in the two appeals. This order will dispose of the applications in both appeals. The main contention of the learned counsel for the appellants was, that the learned Rent Controller had ordered eviction of the appellants under section 15 of the Ordinance and not under section 14 of the Ordinance and as the appeals have been admitted the injunction should be granted as is ordinarily done in cases failing under section 15 of the Ordinance The contention of the learned counsel for the respondents was that first ground of eviction falls within the remedy provided under Section 14 of the Ordinance and therefore the order of eviction of the learned Rent Controller on that ground would be deemed to be order under section 14 and as such no in, unction could be issued by this Court as provided in proviso to subsection (2) of section 21 of the Ordinance. Therefore the main question to be considered is whether the order of eviction of the appellants on the ground of personal requirement of the respondent was passed under section 15 or 14 of the Ordinance. The contention of the learned counsel for the appellant is that the heading on rent application shows that it was filed under section 15 of the Ordinance and furthermore besides the ground of personal use the respondent has also taken ground of personal use of his sons and of reconstruction which reliefs he could not seek under section 14 of the Ordinance and therefore application would be deemed to have been filed under section 15 of the Ordinance and order of learned Rent Controller would also be deemed to be under section 15 of the Ordinance. It is further submitted that even the learned Rent Controller has not specifically mentioned that he is passing the order of eviction under section 14 of the Ordinance. Admittedly section 14 is not specifically mentioned either in the rent application or in the impugned order of learned Rent Controller. It is submitted by the learned counsel for the respondents that for the purpose of determining the section under which relief was claimed or granted this Court has to see the substance of the pleadings and order and not the number of section. Reliance is placed on PLD 1966 (W.P.) Peshawar 113 wherein it has been held as under:‑‑ "Where a plaintiff wanted to produce a certain document at argument stage and for that purpose sought the permission of the Court by making an application under section, 151 instead of under Order VII, rule 18 of the Civil Procedure Code, 1908, it was held, that merely because the counsel had by mistake mentioned section 151 of the Code in the heading of the application that fact alone did not render the application incompetent." Reliance is also placed on 1985 MLD 1624 wherein it is held "that provisions of law mentioned in heading of application were not to control scope of application, powers to be exercised by Court and relief to be granted. Pleadings were to be read as a whole and relief was to be granted in context of pleas made applying relevant law." In the instant case learned Controller has not specifically held as to whether he is passing order under section 15 or 14 of the Ordinance. However, the heading of the application clearly shows that that has been moved under section 15 of the Ordinance, which is also mentioned by the learned Rent Controller in the opening sentence of his impugned judgment. However admitted fact is, that in the pleadings the respondent had pleaded that he is a physician who has retired from Government service after attaining the age of superannuation and that he wanted the premises for his own personal use. Admittedly he had served such notice upon the appellants /tenants also. The learned Rent Controller has also given finding that the respondent is admittedly retired from Government service and that he does require the premises in question for his personal use. In this context it may be helpful to refer subsection (1) of section 14 of the Ordinance which reads as under:‑‑ "Notwithstanding anything contained in this Ordinance or any other law for the time being in force, the landlord of a building who is widow, or a minor whose both parents are dead or a salaried employee due to retire within the next six months or has retired or a person who is due to attain the age of sixty years, may, by notice in writing inform the tenant 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: Provided that nothing in this subsection shall apply where the landlord has rented out the building after he has retired or attained the age of sixty years or, as the case may be, has become widow or orphan." The bare reading of the aforesaid pleas of the respondent in his rent case and aforesaid findings of the learned Rent Controller leave no room for doubt that the relief was sought and granted under subsection (1) of section 14 of the Ordinance. Admittedly apart from the said ground, the respondent also sought eviction on the grounds, that he required the premises in question for the use of his two sons and for reconstruction. Admittedly such relief could not be granted to the respondent under section 14 of the Ordinance. It is submitted by the learned counsel for the respondents, that other grounds of eviction taken alongwith the ground of personal use were not available to the landlord under:-- section 14 of the Ordinance, therefore, the application and order would be deemed to be under section 15 and not under S. 14 of the Ordinance. There is no prohibition in law, under which a landlord cannot seek eviction in one application on the grounds available to him both under section 14 and under section 15 of the Ordinance. This cannot be considered as misjoinder of causes of action. Rather B accepted principle of law is that when a party approaches a Court for any relief he should seek all the reliefs available to him in the same proceedings so as to avoid multiplicity of the proceedings. The mere fact that the respondent has taken more than one relief would not deprive him of the relief available to him under I section 14 of the Ordinance. Section 21(2) of the Ordinance empowers the appellate Court to grant injunction staying further proceedings or action on the order of the Controller. However, embargo is placed under proviso to this subsection on grant of injunction in appeal from order under section 14 of the Ordinance. No doubt there is no such embargo on the grant of injunction against C order under section 15 and the relief granted in the instant case falls under section 14 as well as 15 of the Ordinance. However, this will not take the case out of the embargo placed on the grant of injunction under section 14 because, the respondent can, at any stage give up his two other reliefs and seek relief on the ground of his retirement. The learned counsel for the appellants argued that even on merits the respondent‑was not entitled‑to grant of relief under section 14 or 15 of the Ordinance. I need not go into the merits of the case at thus stage as it will be pre judging the facts of the appeal but the fact remains that the relief on ground No.1 has been granted to the respondent by the learned Rent Controller under section D 14 of the Ordinance and as such no injunction can be issued in view of the proviso to subsection (2) of the section 21 of the Ordinance. For the aforesaid reasons I dismiss the applications in both the rent appeals. Interim injunction already granted is hereby recalled. H.B.T./P‑92/K Stay application dismissed.