1993 PLP 1652 (SCMR)

AJMAL MIAN, J.‑‑‑This is an appeal with the leave of this Court against the order of the learned Rent Controller dated 31‑8‑1991 and the judgment of the learned Judge in Chambers dated 9‑8‑1992 dismissing appellant's application filed under section 14 of the Sindh Rented Premises Ordinance, 1979;hereinafter referred as the Ordinance, on the ground that the petitioner, instead of serving notice under the above provision of the Ordinance on or after 13‑5‑1986 i.e. six months prior to his due date of retirement on 13‑11‑1986, served notice by one month earlier i.e. on 14‑4‑1986. Reliance was placed on the judgment of this Court in the case of Syed Hasan Askari Rizvi v. Muhammad Aziz (PLD 1989 SC 1).

2. Leave to appeal was granted to consider the questions, whether the ratio of the case of Syed Hasan Askari Rizvi (supra) was applicable to the present case or of the case of Wali Muhammad and another, and whether the two Courts below were justified in non‑suiting the petitioner on the above ground, though admittedly the Rent Controller decided the rent case on 31‑8‑1991.

3. In support of this appeal Syed Ali Ahmed, learned ASC, for the appellant has vehemently urged that no objection was raised by the respondent as to the defect of notice under section 14 of the Ordinance and that the learned Courts below have wrongly relied upon the cases of Syed Hasan Askari Rizvi v. Muhammad Aziz (supra) instead of relying upon the cases of Wali Muhammad and another v. Mst. Hameeda Bai and Iqbal Yousuf v. Keshwar Jehan 1983 SCMR 191.

4. The above contention seems to be devoid of any force as the judgment in the case of Syed Hasan Askari Rizvi v. Muhammad Aziz (supra) on all fours is applicable to the facts of the present case, in the above report the notice was served by the landlord who was due to retire 4 days prior to the date when it should have been served whereas in the present case admittedly the notice was sent by the appellant on 14‑4‑1986 though he was due to retire on 13‑11‑1986 i.e. about a month prior to the due date. In other words, on the date when the above notice was sent by the appellant to the respondent the appellant did not fall within the categories of specified landlords given in section 14 (1) of the Ordinance namely, a widow or a minor whose both parents were dead or the salaried employee who was due to retire within the next six months or had retired or a person who was due to attain the age of sixty years within the next six months or had attained the age of sixty years and, therefore, the appellant had no cause of action to send the above notice on the above date. The judgments in the cases of Wali Muhammad and another v. Mst. Hameeda Bai, Iqbal Yousuf v. Keshwar Jehan (supra) are distinguishable as in both the above cases the landlord fell within the above categories of the landlords referred to in subsection (1) of section 14 of the Ordinance, and there was no defect in their capacities as such. There was technical defect as to the required period in terms of section 14 (1) of the Ordinance. It may be observed that as a matter of fact the case of Syed Hasan Askari Rizvi (supra) was considered in the above case of Iqbal Yousuf v. Kishwar Jahan at page 876 of the report, and was not dissented from but was distinguished for the above reason.

5. In this view of the matter, the judgments of the two Courts below seem to be in consonance with the law and, therefore, no exception to the same can be taken. Hence appeal is dismissed. However, there will be no order as to costs.

6. We may observe that it will be open to appellant to serve a fresh notice under section 14 (1) of the Ordinance and to file fresh proceedings in accordance with law. A.A./A‑1016/S??????????????????????????????????????????????????????????? ?????????? Appeal dismissed.