1998 PLP 2114 (SCMR)

WAJIHUDDIN AHMED, J.

These petitions for leave to appeal pertain to Shops Nos. l and 2 (amalgamated) in the tenancy of M/s Khan Medical Store and Shops Nos.3 and 4 (amalgamated) in the tenancy of Allah Rakha, situated on Plot No.49-D/6, Nursery Commercial Area, PECHS, Karachi. Initially, the erstwhile landlord, Khawaja Ziauddin, who was a Government servant, upon his retirement, applied for eviction from each of the amalgamated premises but he expiring during the pendency of such proceedings, the same were withdrawn. Mst. Musarrat, his widow together with one son and two daughters, succeeded him. The widow,-in turn, submitted applications under Section 14 of the Sindh Rented Premises Ordinance and the same came to be registered as Rent Cases Nos. 746/1988 and 748/1988 respectively against tenants Khan Medical Store and Allah Rakha. The learned Controller, through a common order, directed ejectment on the grounds that the landlady was a widow, she did need the tenants-hold for her own use and, duly having satisfied the pre-requisites of Section 14, aforesaid, was entitled to relief. The Controller, however, because the tenements were amalgamated, on considerations of equity, sliced one shop each from the two premises to be made over to the landlady in satisfaction of her claim. The High Court of Sindh in FRAs Nos.206/1992 and 228/ 1992, taken to it by the tenants, upheld such findings, adding a rider that if the landlady did not require the second shop, out of the two allowed to her, such would be let out only to the tenant concerned and no outsider will be inducted. Petition for Leave to Appeal No.192/1998 has been preferred by M/s Khan Medical Store, whereas that bearing No.193/1998 is filed by tenant Allah Rakha. The points raised before us are the following:

1. The building comprises of five shops, two each (amalgamated) in the tenancy of the petitioners/tenants and the fifth in the use of the landlady. Thus, because the landlady is in occupation of a building, which per definition in Section 2(a) inciudes a part thereof, owned by her in the same locality, the landlady stands disentitled to seek eviction in terms of Section 14(2) of the Sindh Rented Premises Ordinance, 1979.

2. Because the landlady is in occupation of the first floor residential premises, that in itself is a disqualification in terms of Section 14(2) of the Sindh Rented Premises Ordinance.

3. The landlady, provided that she otherwise qualified, could apply for and claim only one shop, but since she simultaneously sought evictions from four shops in two separate rent cases, the rent proceedings were not maintainable and, in any case, she could not be allowed more than one shop, designated as such.

4. No case for eviction, at any event, was made out. We propose to dispose of these petitions through a common order in consonance with the course adopted by the learned Controller and the High Court. Reliance for the first of the above questions has been placed by the learned counsel for the petitioners on the under-noted observation made by one of us, Ajmal Mian, L, as he then was, in Abu Bakar v. Abdul Haleem, PLD 1991 SC 302:-- "In other words, ff he or she seeks the ejectment of a shop, he or she must have rented out a shop or must be in possession of a shop in any locality irrespective of the fact, whether it was suitable or not suitable j _ for his purpose. If the respondent would have let out the shop after he - had retired from service or would have been in occupation of a shop wned by him in any locality of Karachi, he would not have been entitled to invoke the aid of the above section 14". A similar view was expressed in Bakhsh Elahi v. Wasif Ali, 1985 SCMR 291, 4 where Zaffar Hussain Mirza, J., authoring the judgment of the Court, observed:-- "Unsuitability of another building in the occupation of the landlord would, therefore, be no ground for not applying the bar contained in subsection (2) in the context of the purpose for which the eviction is sought under section 14. " None of the foregoing observations can be construed to include occupation by the landlord of a portion of a building which does not qualify a an identifiable, functional and independent tenement because it is usually such part of the building which is in contemplation of section 2(a) of the Ordinance as reproduced hereunder:-- "

2. Definitions. In this Ordinance, unless there is anything repugnant i the subject or context, (a) "building" means any building or part thereof, together with all fitting and fixtures therein if any, and includes any garden, garage, out-hour and open space attached or appurtenant thereto.;" A difficulty of this kind would disappear where even such a part c portion of the building, as does not satisfy the foregoing requirement, is let out thereby assuming the status of the tenant-hold and getting covered b Section 2(a), above. Examining the evidence and the impugned orders, we fin that the alleged fifth shop, on account of possession of which the landlady claimed to be disentitled under section 14(2), is a small passage, admittedly, < the dimension of 3' x 7', which the landlady seems to have improvise( apparently, as a commercial outlet, where a board of Siddiqi Electric Store found to have been posted on the exterior. The Excise and Texation recor( summoned by the High Court, has confirmed that the building has only for shops in the occupancy of the two petitioners and accordingly, improvisation the passage cannot spell a reasonable disentitlement. This is all the more so; Section 14 of the Ordinance is an enabling provision designed to confer benefit on the specified category of landlord and has to be liberally construed. As to the question at Serial No.2, above, the short answer is provide by Abu Bakar v. Abdul Halim (supra), Where it was held that in order to pre into service the bar contained in the proviso to subsection (1) of section 14 of the Ordinance, the person specified should be in occupation of a building of the same nature or character of which he has sought eviction under the said provision. The same principle would be relatable to section 14(2) of the Ordinance because, by necessary implication and reference, the provisions I section 14(1) are to be extended to section 14(2) as well. Taking up the third limb of the argument, the learned counsel apparently and implicitly, has relied on the opinion of Saleem Akthar, J., then the High Court, in Muhammad Ali Ahmad Khan v. Taufiq Engineering Work 1991 CLC 105, where it was, inter alia, stated that the benefit of section 14, if be extended to more than one premises, such was likely to create complication and dishonest claims may come to be pressed for seeking the benefit of the summary procedure in that section. It would be advantageous here to recast section 14 ibid. in extenso:-- "

14. Delivery of vacant possession.

(I) 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 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 within the next six months or has attained 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.

2. The landlord shall not be entitled to avail the benefit of sub-section (1) if he is in occupation of a building owned by him in any locality.

3. Where the tenant has failed to deliver the possession of the building under subsection (1), the Controller shall, on application by the landlord in this behalf, order eviction of the tenant from the building in a summary manner, by using such force as may be necessary." As has been consistently held, the word "building" occurring in section 14 of the Ordinance, is used in the same sense reflected in section 2(a) above, and that, unless there be anything repugnant in the subject or context, means any building or part thereof. It is, therefore, logical to assume that such a provision, as is incorporated in section 14, above, was calculated to direct itself to independent premises, tenements or even an entire building as such because evictions have to be relatable to individual holdings alone. Thus, the benefit of the section may well, subject to context and exigencies of a particular case, be confined to a mere tenant-hold. Even on this plane of reasoning, the impugned orders do not appear to have been misdirected because each of the tenants was holding a composite tenant-hold, consisting of two shops and all that the learned Controller and the High Court did was to apportion the burden of the two tenants equitably allowing eviction of one shop each in the tenancy of the two tenants, thus, in effect, confining the order to an area approximately equivalent to an individual tenant-hold or premises. No exception, therefore, can be taken to the order on that basis as well. Regarding simultaneous Rent Cases, no exception, likewise, can be taken to such institution, as the disabilities under Section 14(1) and (2) have a reference, not merely to the disabilities prevalent at the time of filing a rent case, but also to the date when one or the other disability arises during the pendency of the proceedings See Bakhsh Elahi v. Wasif Ali (supra-) Relative to the residuary ground, no more need be stated than that the concurrent findings of the High Court are based on extensive examination of the evidence and tile conclusions are not only just and plausible but also lawful. No interference is called for and the petitions are dismissed, but a period of one year is allowed to the tenants to comply with the order provided always that they continue to pay the rents as hitherto before. Parties shall bear their own costs. A.A. /K-23/ Appeal dismissed