1990 PLP 345 (CLC)

Hussain Adil Khatri for Appellant. Nemo for Respondent. Date of hearing: 10th September, 1989. Appellants M/s. Iqbal Goods Carrier have called in question an order dated 26‑4‑1989 passed by learned IVth Senior Civil Judge and Rent Controller, Karachi (South) in Rent Case No.1418 of 1987.

2. Admittedly the appellants are tenants of the respondent in the premises in litigation mentioned in para 1 of the Rent Application at the monthly rate of Rs.300 per month.

3. Said Rent Case was filed by the respondent under Section 14 of Sind Rented Premises Ordinance (hereinafter referred to as the Ordinance) for eviction of the appellant from the premises in litigation on the ground that he had retired from the Government Service as Head Constable on 1‑5‑1987 and had started the business of grinding in some premises which he had taken on rent at the rate of Rs.3000 per month. Respondent desires to shift his business to his own premises.

4. The Rent Case was opposed by the appellants who in their written statement denied if the respondent had retired from service or if the respondent had started his own grinding business in the premises taken on rent at rate of Rs.3tXl0 p.m. According to the appellants the respondent was doing business in name of United Mixture Industries in the premises belonging to him, since before letting out the premises in litigation. It was denied if the respondent required the premises in litigation for his own business or if he did not own any other premises in the locality. The appellants made reference to a previous Rent Case No. 3525 of 1978 filed for their eviction from the premises in litigation, on the grounds of default in payment of rent and subletting and personal requirement. In said case eviction of the appellants was ordered but in appeal the case was remanded to the lower Court, for further inquiry. After remand the rent case was dismissed on 9‑7‑1987. In view of this it was averred that since the respondent had failed in his attempt to evict the appellants on other grounds, hence he had fabricated and cooked up the ground of retirement. It was added that the respondent was permanent resident of Punjab where he and his family members had gone after his dismissal and from where they returned to Karachi after his reinstatement.

5. Learned Rent Controller after receiving evidence of the parties passed the impugned order by which he ordered eviction of the appellants from the premises in litigation within 60 days, after holding that the respondent had brought his application within the ambit of section 14 of the Ordinance. Hence this appeal.

6. I have heard at length Mr. Hussain Adil Khatri, learned counsel for the appellants. He argued that case of the respondent was not covered by section 14 of the Ordinance because after leaving service he had joined business and as such he had employed himself in business. The word "employed" is not defined by the Ordinance. Relying on meaning of the word "employed" as given in Black's Law Dictionary and in Oxford Dictionary learned counsel for the appellants argued that the said word included engagement of a person in one's business. It was further argued that the onus was on the respondent to establish that he was not in occupation of a building owned by him in any locality. Learned counsel relied on the case of Akhtiar Ahmed v. Qalandar Bux (1988 C L C 1720), where it was observed that the concept of retirement was that a person having completed his tenure of office or attaining the age of superannuation on having pensioned off is no longer is employment or service. It was also observed that the moment an employee who has retired joins any service, he ceases to be a retired person, for purposes of section 14 of the Ordinance. Learned counsel referrd to para. 3 of the affidavit of Mohammad Iqbal a partner of appellant firm who denied if the respondent had retired from service or if the respondent had started his business or if the respondent was paying Rs.3000 per month as rent for his business premises. Mohammad Iqbal said in same para that the respondent was owner of the premises where he was carrying on his business.

7. As per section 14 of the Ordinance, the landlord of a building who inter alia is a salaried employee due to retire within the next six months or has retired may by notice in writing inform the tenant that he needs the building for personal use and require him to deliver vacant possession of the same within such time as may be specified in the notice, not being earlier than two months from the receipt thereof. Such right is not available to a landlord who has rented out a building after his retirement or who is in occupation of a building owned by him in any locality. In this respect the initial onus is on the landlord to prove that he has retired or that he is about to retire within the next six months. Once a landlord discharges such onus, then it is for the tenant to prove that landlord had rented out any building after his retirement or that the landlord was in occupation of a building owned by him in any locality. In the case of Akhtar Ahmed v. Qalndar Bux (1980 C L C 1720) cited by learned counsel for the appellant, it was held that the object of section 14 is to provide speedy remedy to such specified persons who had been treated as handicapped person requiring special care and attention and that the section intends summary procedure inter alia for those who had retired or were about to retire within next six months. In the cited it was made clear that the concept of retirement is that a person having completed his tenure of office or attaining the age of superannuation on having pensioned off is no longer in employment or service and that the qualification of retirem- ent should remain attached to the landlord if he seeks remedy under section 1 on the ground that he has retired. It was not held in the cited case that onus was on the landlord to prove that his case was not covered by the proviso below sect on 14 (1) or, by sub‑section (2) of section 14 of the Ordinance.

8. It is difficult to agree with learned counsel for the appellants that person taking up a business can be termed as "employed". As per Black's Law Dictionary the word "employ" means to engage in one's service, to hire; use as an agent, to commission, to make use of, to keep at work, to entrust with some duty. As per the same dictionary the word "employee" means a person in t e service of another under any contract of hire. As per Oxford Universal Dictionary the word "employ" means the state or fact of being employed. As per same dictionary the word "employment" means action of employing, the state of being employed, service etc. It shows meaning of word "employee' as one employed for wages. In our local terminology the word "employed" is correlated with a job that is undertaken in consideration of money. However intention of the legislature in enacting section 14 of the Ordinance appears to be to provide summary procedure for eviction of tenants in favour of certain specified categories of landlords viz widows, parentless children, old persons with age 60 years or above and salaried persons about to retire in next six months or having retired. It does not appear to be intention of law to deprive a retired person of his right to ejectment under section 14 of the Ordinance if he has taken up a business. Hence it cannot be said that the respondent has lost his right to seek eviction under section 14 of the Ordinance due to his being involved in a business.

9. In his affidavit respondent Mohammad Ayub stated that he had retired from Sind Police on 1‑5‑1987. He placed on record photo copy of an order dated 30‑4‑1986 issued by; the S.P. District South Karachi showing that the respondent would retire on 1‑5‑1987. Respondent added that after his retirement he had started his business in a rented premises viz Plot No.250, 123/3 Niazy Chouk Baghdadi Karachi and that he was paying rent for the said premises at the rate of Rs.3000 per month. He filed in trial Court copy of such rent agreement dated 10‑5‑1987. Respondent added that he required the premises in litigation for his bona fide use for business purposes and that he wanted his two sons to join him in the business. In a case of this nature it is not necessary for the respondent to prove his personal bona fide need. Hence dismissal of his previous Rent Application where he sought eviction on the ground of personal bona fide use would not affect this case on merits. Respondent stated in cross‑examination that he had taken the rented premises from Raja Ali Akber who was father‑ in‑law of his nephew Javed Pervaiz, Even if it be assumed that the rent agreement dated 10‑5‑1987 is a collusive one, yet this would not lead one to accept the contention that the premises where the respondent runs his business belong to him. Respondent also examined Javed Pervaiz attorney and son‑in‑law of Raja Ali Akber in support of the fact that he had taken from Raja Ali Akber on rent one shop an/d a godown for his business. Javed Pervez is no doubt interested being nephew of the respondent and even if his evidence is excluded that does not better case of the appellant.

10. In his affidavit‑in‑evidence Mohammad Iqbal Khan partner of the appellants refuted the fact that the respondent had retired from service, on i‑5‑'1987 or any other date. He spoke about the previous rent case filed against the appellants by the respondent which was allowed by the Rent Controller but was remanded in appeal and was ultimately dismissed on 9‑7‑1987. In his cross -examination Mohammad Iqbal admitted that he knew the respondent to be serving in police department but never enquired if he continued to be in service. He admitted that the respondent had no other place of his own in Karachi except the case premises. In the circumstances, case of the respondent is not covered by sub‑section (2) of section 14 of the Ordinance.

11. Fact of the respondent having retired from government service is amply proved. Consequently no exception can be taken to the impugned order and this appeal stands dismissed in limine. Z.S./I‑94/K Appeal dismissed.