DAWOOD Versus QAZI MUHAMMAD FAHIM
This is an appeal under section 21 of the Sind Rented Premises Ordinance, 1979 (hereinafter called the Ordinance) against the order, dated 3rd February, 1987 passed in Rent Case No. 2133 of 1985 by the IInd Senior Civil Judge/Rent Controller (South), Karachi, allowing the application under section 14 on the ground that the respondent has complied with the condition mentioned in section 14 of the Ordinance.
2. The case has a chequered history. The premises consists of a shop situated at Tulsi Street, Ramswami Street, Karachi, which was transferred to the respondent by the Settlement Department in or about 1962. On 26‑5‑1964 a permanent transfer deed was also issued in favour of the respondent. A notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 was given by the respondent to the appellant who was then in occupation of the said premises. The appellant having failed to pay rent at the rate of t1s.25 per month as demanded by the respondent an ejectment case, bearing Rent Case No. 1684 of 1962 was filed, which was allowed by the learned Rent Controller. The appellant went in appeal before the District Judge. The said Appeal bearing No. 375 of 1964 was allowed. The respondent, then, filed another cent Case No. 1881 of 1968 again on the point of default of arrears from 5‑2‑1968 to 4‑7‑1968. The said ejectment case was allowed in his favour. The appellant then filed an appeal, bearing Appeal No. 184 of 1969 in the District Court, which was dismissed by the learned District Judge, Karachi by his order, dated 13‑8‑1969. Thereafter, the appellant filed IInd Appeal bearing No. 477 of 1969 in the High Court. This appeal was also dismissed by a learned Single Judge by his order, dated 31‑8‑1970. The appellant then filed a Letters Patent Appeal No. 179 of 1970, which was also dismissed by order, dated 18‑9‑1979. Thereafter, to the misfortune of the respondent the file of the Rent Case No. 1881 of 1968, as per affidavit, dated 13‑8‑1987 filed by the respondent in this Court in the above appeal, was untraceable and as such the execution proceedings could not be proceeded with and the respondent could not reap the fruits due to the misplacement or loss of the file of the original case.
3. However the respondent on 2‑7‑1985 retired from Government service as Superintendent, Estate Office, Karachi and served a notice, dated 13‑8‑1985 on the appellant as required under section 14 of the said Ordinance. Upon failure to vacate the premises, as required under the notice, the respondent instituted fresh Rent Case No. 2133 of 1985 on 3rd February, 1985. After recording evidence, learned Rent Controller allowed the said application, against which the above appeal has been filed.
4. Mr. Chaudhry Muhammad Sadiq, learned counsel for the appellant submits that in view of the earlier order of ejectment passed in the previous Rent Case No. 1881 of 1968 culminating in the final order passed in Letters Patent Appeal No. 179 of 1970 the appellant cannot be said to be a tenant and, therefore, a fresh case was not maintainable. Reliance is placed by the learned counsel on a case reported as Mst. Birjis Khatoon v. Jabbar Ahmed 1983 C L C 3066 but the facts of the said case are distinguishable inasmuch as a new agreement, of tenancy was executed after the ejectment order was passed in the earlier case. However, the above ground has not been taken in the memo. of appeal. Mr. Muhammad Sadiq conceded before me that he did not dispute the relationship of tenant and landlord between the parties before the learned Rent Controller. I will, therefore, not allow the plea to be raised in the appeal which goes against the pleadings of the parties. Furthermore, the same is unfounded and does not seem to be worth consideration. The appellant notwithstanding decision in the earlier case, continues to be tenant within the meaning of the Ordinance, as long as he continues to be in possession, and is liable to be proceeded with under the Ordinance.
5. Appellant's counsel next contended that the notice dated 13‑8‑1985 served on the appellant on 19‑8‑1985 was not in accordance with law, as it was required under that notice that the appellant should vacate the premises 'within two months', whereas the notice should be of 'clear two months'. Learned counsel agrees that no express objection as to the validity of the notice was raised before the learned Rent Controller. He, however, failed to support his plea by citing any case‑law. Mr. Dewan Bashir Ahmad, learned counsel for the respondent on the other hand, relies on the case of Wali Muhammad v. Mrs. Hameeda P L D 1981 Kar. 794. In the case cited by the counsel for the respondent, the appellants were called upon to vacate fort with instead of on expiry of two months. In the written statement filed in that case, as in the instant case, the appellants had not raised any specific plea to the effect that a valid notice under section 14 of the Ordinance was not served on them before filing of rent application. The underlying object of section 14 of the Ordinance seems to be an expeditious summary relief to a widow, B orphan and to a person who has retired from the service or who has attained the age of 60 years. If 'technicalities' are to be strictly enforced, the very object of the above provision will be frustrated.
6. It seems essential that the law contemplates that the period of notice must not be less than two months from its receipt. In the instant case the notice was admittedly served on 19‑8‑1985, whereas) the ejectment case was filed on 2nd November, 1985, much after the C expiry of period of two months. The Court is to see, whether there has been substantial compliance of section 14. The spirit of the said section seems to be that a tenant must have at least two months' period to ordering of ejectment summarily under the above provision of law. I may also refer to a Full Bench decision of this Court reported as Barkatullah Khan v. Mirza Muhammad Hasan P L D 1986 Kar. 309. One of the questions referred to the Full Bench was;
(1) Whether notice under section 14 of the Sind Rented Premises Ordinance calling upon the tenant to vacate the premises within 60 days of the receipt of the notice is valid and legal?" and the reply was given by the Full Bench in the affirmative. It was, however, held that the order of ejectment should not be passed before the expiry of 60 days from the date of the service of notice.
7. Lastly, it was submitted that the appellant is in occupation of the premises since 1949 and due to passage of time goodwill of the premises has increased tremendously. Moreover, the K . D . A . has given a notice for demolition of the building, as the building according to the K . D . A . has become ruinous and dangerous. These submissions are irrelevant and lend no support to the appellant.
8. No other plea was raised or ground urged by the learned counsel for the appellant.
9. For the reasons discussed above, the appeal is dismissed. The appellant will, however, hand over the vacant and peaceful possession of the premises to the respondent by 31st of this month,. failing which the appellant will be liable to be ejected without notice. The office is directed to send back the R&P to lower Court immediately.
H.B.T./D‑32/K Appeal dismissed.