P L D 1983 Karachi 130 (PLP)

This appeal has been filed against the order passed by Xth Senior Civil Judge/Controller, Karachi dated 8-8-1.981 in Rent Case No. 6039/80 holding that the case of the respondent was fully covered by provisions of section 14 of the Sind Rented -Premises Ordinance, 1979 (hereinafter referred to as the Ordinance), and directing the appellant to hand over vacant possession of the premises in. dispute to the respondent within two months of the date of the order.

2. The facts leading up to the filing of the appeal are as under: The respondent is owner and landlord of House No. 2/57-E, PECHS, Karachi. He rented out the aforesaid premises to the appellant under a written agreement of lease dated 1-10-1967. 1t was the case of the respondent that the demised premises were leased out to the appellant at a monthly rent of Rs. 275 exclusive of other charges, however, after making payment of the rent at that rate for about 4 months the appellant started paying Rs. 250 per month.

3. The respondent filed Application No. 227/70 for ejectment of the appellant on the ground of default which was allowed by Rent Controller vide his order dated 31-7-1977. The appellant filed Rent Appeal No. 357/76 which was allowed on 5-8-1978. The IInd Appeal No. 325/78 which was filed by the respondent also ended . in dismissal as the High Court held that the rent was reduced to Rs. 250 and there was no default,

4. The respondent who was a Government Servant retired from service w.e.f. 1-9-1980. He had served the appellant with notice dated 6-3-1980 informing him about his retirement and directing him to vacate the premises as the same were required for his own personal use. However, the appellant in his reply dated 6-3-1980 refused to do so and challenged the validity of notice by filing a Civil Suit No. 1859/80 the plaint of which however, was rejected by the XIV Civil Judge, Karachi vide his order dated 20-8-1980.

5. The respondent also attained the age of 60 years on 25-12-1980 and on that account also he served the appellant with notice dated 26-7-1980 calling upon him to vacate the premises as he required the same bona fide for his own personal use. The appellant, however, by letter of his Advocate dated 28-7-1980 refused to vacate the house.

6. As the respondent had no other house in Karachi or elsewhere and he had been directed to vacate the official residence he urgently needed the house for his own residence, and therefore, he filed application dated 12th October, 1980 under section 14(3) of the Ordinance, 1979.

7. The appellant filed written statement admitting that he was tenant of the respondent. With regard to the rate of rent the appellant in his written statement before the Controller stated that after termination of the period of tenancy under the agreement, the respondent had varied the terms and conditions of the tenancy .and had agreed to let out the premises to the appellant at the rate of Rs. 250 per month and thereafter the tenancy continued at the rate of Rs. 250 and not Rs. 275 per month.

8. In the written statement the appellant had taken the stand before the Controller that the respondent had not retired from service but he had been permitted to retire and, therefore, his retirement was premature. He had further contended that, therefore, the respondent was not entitled to eject him. With regard to the Civil suit filed by appellant in which the plaint had be.-n rejected the appellant had taken the stand that the matter was still sub judice as he had filed Civil Suit No. 490/80 which was pending in the Court of VIth Additional District Judge, Karachi. The appellant also denied that appellant had attained the age of 60 years. The learned Controller after hearing the parties and affording them an opportunity to present their case before him passed the impugned order and hence the appeal.

9. Mr. M. M. Pirzada, the learned counsel for the appellant while arguing the appeal contended that earlier litigation having gone against the respondent he had taken undue advantage of the new legislation namely the Sind Rented Premises Ordinance, 1979 and had manoeuvred to get early premature retirement from service and, therefore, he was not entitled to the benefit of section 14 of the Ordinance. He raised the further contention that Controller bad not framed any proper issues and had not properly appreciated the evidence given by the appellant. He has assailed the impugned order also on the ground that there was no proper notice given and, therefore, the entire proceedings were vitiated. The acceptance by the learned Controller of the version of the respondent that he had attained the age of 60 years has also been challenged.

10. For a proper, appraisal of the grounds raised the provisions of section 14 of the Ordinance have to be considered. The section reads as under: "

14. Delivery of vacant possession. -- (1) Notwithstanding anything contained in this Ordinance or any other law for the time being in force, the -landlord of a building who is a widow, or a minor whose two months had t expired from date of service of that notice and from the date of filing ejectment case." In the case in hand also the only technical objection to the notices given is that the same should have expressed that the tenant was to vacate after expiry of two months from the date of receipt of the notice and not within two months. The notice as already stated were given on 6th March, 1980 and 26th July, 1980, whereas the application for ejectment was filed on 12th October, 1980, and impugned order was passed on 8-8-1981.

16. Under the circumstances, I find no weight in the appeal which is accordingly dismissed with no order as to costs. The appellant is directed to hand over possession of the premises within 2 months of the date of this order. M. Y. M. Appeal dismissed.