1998 PLP 1040 (CLC)

This appeal arises out of order of ejectment passed on respondent's application under section 14 of Sindh Rented Premises Ordinance XVII of 1979 (hereinafter referred to as the Ordinance XVII of 1979) by the learned VIIth, Rent Controller, Karachi South in Rent Case No. 1785 of 1994. Respondent Ashiqally Quettawala a co‑owner of the premises bearing Survey No.E‑11/p.5 (New Survey No.27/90) Sheet No.LRS situated at Nishter Road (Formerly Lawrence Road) Opposite Nadir Shah Eduljee Dinshaw, Charitable Dispensary, Karachi being in occupation of the appellant as a tenant, was employed with Pak Arab Refinery Ltd. wherefrom he retired on 6‑2‑1994 upon attaining the age of superannuation i.e., 60 years. He decided to set up his business of sale and purchase of cars, and therefore, felt need to acquire vacant possession of the demised premises which from his point of view suited to his future programme. This led to the filing of an application under section 14 of Ordinance XVII of 1979 to secure appellant's eviction. The appellant also contested the matter and in the written statement beside taking up preliminary objections regarding the maintainability of the application also denied the claim of the respondent. In the context of the pleadings of the parties following issues were framed:‑‑‑ "(1) Whether the rent case is not maintainable' (2) Whether the applicant is entitled for ejectment of case premises from the opponent under section 14 of Sindh Rented Premises Ordinance. 1979? (3) What should the order be?" The respondent examined himself and produced documents in proof of his age and retirement from service. The appellant filed affidavit in evidence of one Shaharyar Afzal, Retail Regional Manager. The learned Rent Controller decided all the issues in favour of the respondent and allowed the application vide order, dated 20‑8‑1997 which has been impugned in this appeal. Pre‑admission notice of this appeal was issued to the respondent. I heard the learned counsel for the parties and also perused the record as well as the relevant documents and the case law cited by the learned counsel. It was contended by the learned counsel for the appellant that the respondent admitted in his cross‑examination that he was a practising Advocate and was still enrolled as an Advocate, and therefore, he was not competent to undertake any other profession or business. He also referred in this connection to Rule 175 of the Pakistan Legal Practitioner's and Bar Council Rules 1976 and Ch. Fayaz Akbar v. Messrs Delite House Ltd. 1987 SCMR

104. In this order the Hon'ble Supreme Court granted leave to consider the question whether the disputed shop was required by the petitioner in good faith and whether he was ready to surrender his licence to practice as an Advocate and was rightly keen to start business in the shop in question. If so whether he was entitled to the relief prayed for in the light of section 23 of the Cantonment Rent Restriction Act, 1963. This leave granting order is not applicable to the facts of this case. I am also unable to agree with the above submission. In my humble view a person by getting enrolled as an Advocate does not become incapable of doing any other work for all the time to come. It is always open to him to intimate to the concerned Bar Council of his intention to renounce the profession of law and thereupon his enrolment may be cancelled or suspended. In the instant case the respondent was employed with a limited company from where he had already retired. He intends to commence a new business for which he wants a suitable place. His present enrolment as an Advocate cannot prevent hitn from embarking of his future course of action. It was next contended by the learned counsel for the appellant that the case of the respondent do not fall within four corners of section 14 of the Ordinance XVII of 1979. This submission is also devoid of any force. The respondent had attained the age of 60 years and he also served upon the appellant a notice under section 14 which was replied. An attempt was further made to deny the claim of the respondent by showing that he owned two buildings behind the building in question. However, it has come in the evidence that the flats and shops in those buildings were already let out to the tenants. The learned counsel for the appellant also referred to a compromise, dated 14‑6‑1989 between the parties in a previously instituted rent case and argued that pursuant to that compromise the respondent agreed to take only a portion of the said building for his need and to give the remaining to the appellant for a further period of 10 years i.e. up to 1999. This point was dealt with by the learned Rent Controller in the judgment and his finding as that this compromise was not acted upon by the appellant and I do not see any reason to differ from his conclusion. Relying on the judgment reported as Syed Askari Rizvi v. Muhammad Aziz PLD 1989 SC 1 the learned counsel for the appellant submitted that the provisions of section 14(1) of Act XVII of 1979 may be strictly interpreted particularly when the respondent rented out 80 shops in three years and his claim is for business and not for residential house. There is no force in this submission as the respondent has succeeded in proving his need after having retired from his service on attaining the age of superannuation. Even otherwise as was rightly submitted by the learned counsel for the respondent such pleas had not been taken in the written statement, and therefore, he cannot be allowed to take up such pleas at this stage. In support of his submission the learned counsel for the respondent relied upon Abdul Qayum v. Ltd. Col. (Retd.) Jamilur Rehman Qureshi 1995 SCMR

212. The up shot of the above discussion is that the appeal is without any substance. Accordingly it is dismissed in limine with no order as to costs. The appellant is directed to hand over vacant possession to the respondent within sixty days but that would be subject to payment of rent according to law. H.B.T./S‑123/K?????????????????????????????????????????????????????????????????????? ??????????? Appeal dismissed.