ASHFAQ AHMAD QURESHI Versus A. A. KADWANI
1. This appeal is directed against the order of IXth Senior Civil Judge and Rent Controller. Karachi dated 8‑12‑1984 whereby he dismissed the ejectment application filed by the appellant, seeking ejectment of the respondent from the demised premises.
2. Briefly stated the facts of the case are that the appellant, Ashfaq Ahmed Qureshi is the owner/landlord of double storeyed house built on Plot No.III‑D‑24/9, Nazimabad, Karachi and the respondent A.A. Kadwani is occupying the ground floor of the said house as tenant. Having retired from Government service w.e.f. 27‑1‑1984, the appellant has sought ejectment of the respondent from the rented premises under section 14, Sind Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance). Prior to institution of ejectment proceedings, the appellant sent a requisite notice dated 20‑12‑1983 to the respondent. by registered post A.D. calling upon him to vacate the house in his possession, as he needs the same for his personal use. In spite of the service of notice on him, the respondent did not vacate the house and instead he contested the appellant's claim by filing written statement wherein he took the plea that the appellant is permanently settled at Islamabad where his wife is serving in Health Department and is, therefore, in possession of Government accommodation. He further stated that the appellant's only children, one son and one daughter, are also admitted in educational institutions in Punjab and getting education there.
3. The learned Rent Controller after considering the evidence adduced by both the parties, dismissed the ejectment application by his order dated 8‑12‑1984 and hence this appeal.
4. After hearing the arguments of the learned counsel for the parties, the appeal was allowed by short order dated 29‑1‑1986 for reasons to be recorded separately. Following are the reasons in support, of the short order.
5. The ejectment: application is admittedly filed under section 14 of the Ordinance which reads as under:‑
6. "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 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 subsection (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".
7. As required by the above section, the appellant has served the notice on the respondent who instead of vacating the disputed premise in compliance thereof chose to resist the appellant's demand for vacation of the house. However, it is not denied by the respondent that the appellant has retired from Government service. His averment is that the appellant owns plots and houses at Lahore as well as at Karachi, As is clear from the impugned order, he was not able to establish it except to the extent that he owns one plot each at Karachi and Lahore. As provided in section 14, the landlord will be denied the benefit o. this section if he owns a building in any locality. Thus, the owning o plot by the appellant would not have any adverse effect on his case.
8. In course of his arguments the learned counsel for the respondent invited my attention to the order of the Rent Controller in respect of the first floor of the disputed double storey‑building, which shows that on the appellant's motion, the Rent Controller has ordered eviction of his another tenant from that portion of the building. It was also admitted by the appellant's counsel that in pursuance of the Rent: Controller's said order the appellant has taken over the possession of the first floor of the building. In view of this development the learned counsel for the respondent raised an argument that since the appellant is in possession of the first floor of the building which is also owned by him, he cannot demand the eviction of the respondent from the ground floor of the said building. In reply to this argument the learned counsel for the appellant submitted that after his retirement the appellant wants both floors of his house for his personal use. In this connection he referred to para. 6 of the appellant's affidavit appearing at page 29 of the lower Court's record. Moreover, according to him, the order in respect of the first floor was passed on 12‑2‑1985, i.e. much after the institution of this case and as such it cannot be used by the respondent at this belated stage and without raising such plea in this regard, to pre‑empt the appellant's demand for his eviction. I am inclined to agree with this view and so also with the argument that on his retirement the appellant is within his right to demand the restoration of both the floors of the disputed building and use the same as one unit. Therefore, his taking over the possession of the first floor would not disentitle~ him to get back the ground floor.
9. It was urged on behalf of the appellant that all the conditions necessary for availing the benefit of section 14 of the Ordinance having been fulfilled, the appellant, was entitled to have the disputed portion of the building restored to him. However, the contention of the learned counsel for the respondent was that in view of the appellant's own admissions that he intends to live with his wife who is in Government service at Islamabad and that she has applied for the same accommodation which was in his possession during the period of Government service and that his daughter and son are getting education in Punjab, he does not at all require the disputed premises for his personal use. In other words the learned counsel meant to say that the appellant's need of the disputed house is not bona fide or is made in good faith and consequently according to him the learned Rent Controller has rightly rejected his ejectment application. In support of his arguments he relied upon the case reported as Syed Israr Alam v. S.M. Hussain 1983 CLC 468 wherein the former Chief Justice of this Court took the view which is expressed as under:
10. "I am not able to agree with that view, because the mere use of the word "need" would envelop the concept of bona fides. After all, it has to be established that a person needs the premises, and, in such enquiry, it can never be said that the word has to be interpreted as if it were divorced from the concept of bona fides, or, mala fides. Taking that view would mean that even unreasonable and fanciful need will have to be met only if the landlord were to come and say that he needs the premises. Such an intention could never be attributed to the Legislature, because the Sind Rented Premises Ordinance is enactment of a nature that is designed to protect the right of occupation of a tenant".
11. On the other hand the learned counsel for the appellant expressed the view that in the case under section 14 of the Ordinance the landlord is not under the obligation to prove that his need for the premises is bona fide or is made in good faith. He has derived support for this view from Supreme Court authority reported as Bakhsh Elahi v. Qazi Wasif Ali 1985 S C M R 291 wherein it was held:‑
12. "The object of section 14, therefore, seems to be to relieve this class of landlords from the rigours of an elaborate inquiry as to the good faith of their plea for requirement of the premises for personal use and to put them in possession thereof in shortest possible time."
13. On the same point the learned counsel also referred to the case of Azmat Hayat Khan v. Q. Mushir Azam 1984 C L C 2635 wherein it was held:‑
14. "The learned counsel for the respondent, on the other hand referred to the cases in Mumtazuddin Ahmed v. Sultan Jehan PLD 1981 Kar. 329, Wall Muhamamd v. Mst. Hameeda P L D 1981 Kar. 794, Ulfat Hameed v. Birjis Khatoon P L D 1982 Kar. 823 and Younus v. Mrs. Hameeda 1982 C L C 580 in support of his contention that in an application moved under section 14 of the Ordinance of 1979 in view of the difference in the language employed in sections 14 and 15 (2)(viii) no burden of proof to establish his bona fide is cast on a person applying for ejectment on the ground of personal requirement under section 14. Mr. H . A . Rehmani, the learned counsel for the appellant informed me that the opinion expressed by Mr. Justice Saeeduzzaman Siddiqui in the case of Mst. Ulfat Hameed v. Mst. Birjis Khatoon (ibid) to the effect that provisions of section 14 of the Ordinance do not contemplate an inquiry by the Rent Controller into the genuineness or otherwise of the needs expressed by a landlord, was challenged before the Honourable Supreme Court in C . P . S . L . A . No. K‑28 / 1982 but the said petition was dismissed summarily.
15. Mr. H.A. Rehmani, the learned counsel has further stated that the appellant has already been ejected from the premises in dispute and is now living in his own house situated in Karachi Administration Co‑operative Housing Society.
16. I am in respectful agreement with the principles as to the scope of inquiry in cases filed under section 14 laid down in the above cases referred by Mr. H.A. Rehmani, the learned counsel for the respondent."
17. Apart from above authorities reference may also be made to the recent Full Bench decision in the case of Barkatullah Khan v. Mirza Muhamamd Hassan F.R.A. No. 912 of 1982 decided on 12‑12‑1985 wherein it was held :
18. "Now under section 14 of the Ordinance, in order to get an order of eviction, a landlord, if he is qualified as mentioned in the section, is required to give notice in writing informing the tenant that he or she needs the building for his or her personal use and requiring him to deliver vacant possession of the building within such time as may be prescribed in the notice not being less than two months. It is, therefore, clear that in order to get an order of eviction, a landlord must fulfil this condition, otherwise under general provisions he has to prove good faith:"
19. Since the view taken by the learned former Chief Justice in the case of Syed Israr Alam hereinabove is contrary to the interpretation of section 14 made by the Supreme Court in the case of Bakhsh Elahi and by the Full Bench of this Court in the case of Barkatullah, the latter view will prevail and is binding on me. Accordingly I would like to reiterate that in the case filed under section 14 of the Ordinance, once the landlord has fulfilled the conditions specified in the section, he will be entitled to get back the disputed premises and the Court will not go into the question of his need for the premises being bona fide or not.
20. In the instant case the appellant fulfils all the requisite conditions inasmuch as that he has retired from service, that he has served notice on the respondent calling upon him to vacate the disputed premises and that he does not own any other building in any locality and, therefore, he is entitled to get back the said premises. Accordingly the impugned order of the learned Rent Controller cannot be maintained. As stated above the appeal was allowed and the respondent is directed to hand over vacant possession of the premises to the appellant within two months of this judgment.
21. A.A. Appeal allowed.