SABIR ALI Versus ZAHOOR AHMAD KHAN

1. This Judgment will dispose of both these appeals. The respondent is landlord of two shops one bearing Shop No. 1 on Plot No. 1/94 Drigh Colony, Karachi, rented out to Sabir Ali appellant in F.RA. No. 1199/87 and the other shop bearing shop No. 2 on Plot No. 1/94 Drigh Colony rented out to Iqbal appellant in F.RA. No. 42/88. The respondent served two notices dated 28‑4 1986 and 31‑5‑1986 intimating the appellants that as he has retired from employment of K.T.O. and has attained the age of 60 years he requires these shops for his own personal use. As possession was not delivered by appellant he filed ejectment application bearing No. 628/86 on 20‑8‑1986 against Sabir Ali and ejectment case No. 629/86 against Iqbal Ali on the same date. The learned Controller by the impugned order granted ejectment application in both these cases. I have heard the learned counsel for the appellant and the respondent.

2. Mr. Hassan Jaffar the learned counsel for the appellant in F.R.A. No. 1199/87 has very fairly referred to a judgment of this Court where it has been held that if a landlord files ejectment applications under section 14 separately in respect of two premises and ejectment is granted then he is entitled to possession of only one of these premises. The choice is first left to the landlord. If he does not exercise his option then the tenant in respect of application of ejectment which was registered earlier in time was to be ejected. In the present case the same situation has arisen. The ejectment applications against both the appellants were filed on the same date and were registered as stated above. The respondent who is present in Court has exercised his option for Shop No. 1 which is in possession of Sabir Ali. I have gone through the judgment passed in Ali Akbar Shah V. KA. Farooqui First Rent Appeal No. 32 of 1984 in which my learned brother Ali Madad Shah, J. has laid down the principle for issuing ejectment order in such situation.

3. It is well‑settled that under section 14 a landlord is entitled to only one premises because under subsection (2) a landlord is not entitled to the benefit of section 14(1) if he is in occupation of any building owned by him in any locality. On this aspect of the case authoritative and instructive discussion can be found m Bakhsh Ali Elahi v. Qazi Wasif Ali 1985 SCMR 29 t. In the present case as the A respondent has exercised his option in respect of Shop No.1 which is in possession of Sabir Ali in view of the judgment referred above ejectment will be granted so far this appellant is concerned and further that ejectment in respect of Shop No. 2 occupied by Iqbal Ali shall not be granted.

4. Mr. Hassan Jaffar the learned counsel further contends that the notice under section 14 has been served on behalf of the children of the respondent and therefore it is not a valid notice. I have gone through the notice which is in Urdu. It has been addressed on behalf of the respondent and not his children. The learned counsel then contended that as in his cross‑examination the respondent has admitted that his two sons will carry on business in the shop the same is no required by the respondent for his personal use. In the ejectment application, notices and in the affidavit of evidence the respondent has maintained that he will carry on business. Although he has stated that his son will carry on business, in closing part of the cross‑examination he has stated that it is incorrect to suggest that he will not carry on business in the shop in dispute. From this statement and documents it is clear that the respondent requires the premises for his personal bona fides use. The learned counsel then contended that the application is mala fide but in a case under section 14 bona fide of the landlord cannot be B investigated. In the result Appeal F.R.A. 1199/87 is dismissed. Appellant should hand over vacant possession of Shop No. 1 within 6 months. In view of the option exercised by the respondent F.R.A. 42/88 is allowed and the ejectment order is set aside. Parties to bear their own costs.

5. S.Q./S‑218/K Order accordingly.