SHAMSUL ARFIN Versus ABIDA KHATOON

1. The respondent filed an application under section 14 of Sind Rented Premises Ordinance 1979 for ejectment of the appellant from premises bearing NoA‑602 Block J, North Nazimabad Karachi on the allegation that she is a widow and needs the premises for her own personal use and occupation. The appellant filed written statement denying that the respondent is a widow. However the learned Controller before deciding this issue passed an order under section 16(l) and directed the appellant to deposit rent in terms.of the said order. As default was committed in ‑complying with the said order the defence of the appellant was struck off under section 16(2) and order for his ejectment was passed.

2. Mr. Rashiduddin Ahmad, the learned counsel for the appellant has contended that as the maintainability of the application under section 14 was challenged the Controller should have first determined this preliminary issue before passing an order under section 16(1). On he other hand Mr. Manzar Ahmad the learned counsel for the respondents has contended that as the appellant has admitted the tenancy, the mere fact that the application was filed under section 14 which according to the appellant is not competent, does not debar the Controller from passing an order under section 16(1) nor the jurisdiction of the Controller could be challenged. A landlord is entitled to file ejectment application against the tenant either under section 14 or section 15 of the Sind Rented Premises Ordinance. Section 14 is a special provision for the benefit of specified persons namely widow, minor whose both parents are dead, a salaried employee who is to be retired within six months or has retired and a person who is due to attain age of sixty years within six months or has attained the age of sixty years. Therefore, section 14 can be invoked by a landlord who falls within the specified category. All the landlords cannot invoke section 14.

3. ..:: .. In a proceeding under section 14 good faith of the landlord cannot be enquired or challanged. Therefore, it is in the nature of a summary proceeding where after serving notice under section 14 if the case is filed and it is proved that the landlord is a specified person as provided by section 14, and is not hit by the proviso to section 14(l) and subsection (2) of section 14 ejectment is bound to be granted. On the other hand section 15 provides a full enquiry in personal requirement, bona fides and good faith of the landlord. When a landlord files an application under section 14, its maintainability depends upon the proof that l he/she is a person specified and qualified to invoke it. It is true that the Controller derives his jurisdiction from the fact that there exists relationship of landlord and tenant between the parties but maintainability of an application under section 14 is dependent on such relationship coupled with the fact that the landlord invoking section 14 has retired from service or is about to retire, has attained or about to attain within six months age of sixty years, is. an orphan whose both parents have died or is a widow: Unless the landlord falls within any one of the specified categories the Controller will have no jurisdiction to entertain and decide application under section 14 of the Ordinance. It is a well‑recognised principle of law that where preliminary objection to the jurisdiction of the Court or maintainability of the action is raised it should be decided first before passing any order touching upon the merits of the case or affecting the right of the party raising such objection. In ejectment cases if such preliminary objection is raised it is the duty of the Controller to first decide it before passing an order under section 16(1) of the Ordinance. If necessary, even evidence can be recorded for determining the jurisdictional facts. The wisdom of this principle is based on consideration that if at the final hearing the Controller comes to the conclusion that he has no jurisdiction or that the application is not maintainable then the entire proceeding in the case will be an exercise in futility. One can imagine injustice which can be caused if the preliminary objection is not decided and order under section 16(1) is passed which is not complied with, and the tenant is ejected without being heard on question of jurisdiction and maintainability of the case which may have turned out to be correct.

4. In this context I have considered whether in appeal against such an order stay can be granted. Section 21 prohibits grant of injunction against the execution of order passed under section 14. This provision takes in contemplation cases where order of ejectment has been passed in favour of a person who is or has been held to be a landlord specified under section 14. But in cases where on objection being raised that the landlord is not covered by section 14, if the Controller without giving any finding resorts to section 16(1) and (2) and grants ejectment, the case can hardly fall under section 14 as the very basis and precondition for invoking this provision has remained undecided. In such cases in my view the Court is competent to grant stay of execution and the bar provided under section 21 will not apply.

5. In the present case the parties have led their evidence and it was not much difficult for the learned Controller to have given a finding on the question whether the respondent is a widow? However without giving such a finding he has first passed an order under section 16(1) and then on default struck off the defence without deciding the preliminary objection. This completely shows that the very maintainability of the application has not at all been considered at any stage and the learned Controller has not applied his mind to this preliminary objection which goes to the root of the ejectment application.

6. I therefore allow the appeal, set aside the orders passed under section 16(1) and (2), remand the case to the learned Controller with direction to first decide the question whether the respondent is a widow and after deciding this issue proceed with the matter according to law. The parties are directed to appear before the Controller on 23‑5‑1989. Notice of this date shall not be issued to the parties.

7. S‑418/K Case remanded.