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Petitioner: BARKATULLAH KHAN VS Respondent: Mirza MUHAMMAD HASAN
Court Name: Sindh High Court Judge(s): Saleem Akhter, Naimuddin Ahmed, Abdul Qadeer Chaudhry Title: BARKATULLAH KHAN vs Mirza MUHAMMAD HASAN Case No.: First Rent Civil Appeal No, 57-D of 1963 Appeal No, 912 of 1982 Date of Judgment:1985-09-28 Reported As: PLD 1986 Karachi 309 Result: Order accordingly
JUDGMENT
JUDGMENT ' NAIMUDDIN, J.-The following questions have been referred to this Full Bench for answer. "(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 ?" (2) Whether ejectment application under section 14, Sind Rented Premises Ordinance filed after service of such notice is maintainable ? " 2. The reference has been necessitated due to divergence of opinion on the interpretation of the provisions of section 14 of the Sind Rented Premises Ordinance, 1979 (hereinafter called the Ordinance) which reads as follows :- "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 60 (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.
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(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." 3, In the instant case the appellant/landlord served a notice dated 21.11-1981, wherein he gave to the respondent time to vacaXXXV1IIte the premises within two months. The notice reads as follows :- Karachi : Dated 21-11-1981. "To Mirza Muhammad Hassan, R/at Quarter No, 55/1, Muslim League Quarters, Nazimabad, Karachi. Sir, ' This is to inform you that you are my tenant in respect of Quarter bearing No, 55/1, Muslim League Quarters, Nazimabad, Karachi, at the rate of Rs, 140 per month. You are further informed that I am a Government employee and presently I am on Leave Preparatory to Retirement of 304 days and I shall be retired from my services from 1st June, 1982 and after my retirement I shall settle myself with my family at Karachi. ' Therefore, you are requested to hand over the vacant and peaceful possession of m quarter bearing No, 55/1, Muslim League Quarters, Nazimabad, Karachi, within two months from the receipt of this notice, as the same is required for myself and my family members, failing 'hick I shall be compelled myself to file an ejectment case against you in the competent Court of law." 4. By another notice dated 9-12-1981, he again gave time to the respondent to vacate the premises within two months of the receipt of the notice. The notice reads as follows :- "To Karachi, dated 9th December, 1981. Mr. Mirza Muhammad Hassan, House No, 55/1, Muslim League Quarters, Nazimabad, Karachi-18. ' Notice.-Under section 14 of the Sind Rented Premises Ordinance, 1979. ' Dear Sir, ' Under instructions and on behalf of my client, Mr. Barkatullah Khan, son of Mr. Muhammad Sayeed Khan, Muslim, adult, resident of 53/4, Muslim League Quarters, Karachi, I write to you as follows :- (1) That my clien, is the owner and landlord of House No, 55/1, Muslim League Nazimabad, Karachi, and you are tenant of the said premises the last 15 years, at an agreed monthly rent of Rs, 140. (2) That my client is a salaries Government employee and he is going to be retired from his services within the next six months i,e, from 1st June, 1982. (3) That my client is going to attain the age of sixty years within the next six months. His date of birth is 1st June, 1922. ' That my client requires the premises for his personal use and occupation. He does not own any ether house except the one which is in your occupation. ' I therefore, call upon you to vacate the House No, 55/1, Muslim League Quarters, Nazimabad, Karachi, and hand over its vacant possession to my client within two months from the date of the receipt of this Notice failing which my client shall take legal action in proper Court of Law against you for your ejectment from the premises in question entirely at your risk as to costs and consequences." 5. In the written statement filed, a plea was taken that such a notice was not according to law and void. This plea did not find favour with the Controller and he held that the notice was valid. He however, rejected the application on the ground that the appellant was occupying another premises owned by him in the same locality. The order has therefore, given rise to the appeal, wherein the above-stated questions have been referred. 6. While arguing the appeal the learned counsel for the respondent assailed the finding of the Controller that the notice was valid. Both the counsel relied on a number of decisions of this Court which were in favour of their respective clients and expressed contrary views on the interpretation of the provisions of section 14 of the Ordinance, resulting as already stated, in the reference.
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7. We have heard Mr. Allauddin Ansari learned counsel for the appellant and Mr. Zafar Hadi Shah learned counsel for the respondent. The decisions cited by the learned counsel for the parties or noticed by us having relevancy to the validity of notice are as follows :- " Wali Muhammad v. Mrs. Hameeda PLD 1981 Kar. 794 ; A. S. Mughal v. Mst. Khurshid Azmat Ali PLD 1982 Kar, 406 ; Wahid Shah v. Haider Mirza PLD 1983 Kar. 628 ; Younus v. Mrs. Hameeda 1982 CLC 580 ; Mir Mustafa Ali Khan v. Mst. Safia Maqsood 1983 CLC 349 ; Syed Riazu! Hassan Shah v. Zamirul Haq 1983 CLC 2274 ; Aurangzeb Dar v. S. M. Alam 1983 CLC 3220 ; Abdul Razzak and 6 others v. Mst. Yasmeen Khanum and 4 others 1985 CLC 1048 ; Khawaja Muhammad Razzaque v. Omar Farouk 1982 CLC 318 ; Muhammad Iqbal v. Shaikh Ayaz 1984 CLC 1913 ; Muhammad Ashfaq v. Sideman 1985 CLC 2374," 8. In the first 8 cases the provisions of section 14 of the Ordinance have been liberally construed or applied while in the last three cases it was in effect held that the landlord to have the benefit of the provisions of section 14 of the Ordinance should strictly comply with the conditions mentioned therein and a notice which is not in accordance therewith is invalid. 9. In the first case of Wall Muhammad and another v. Mst. Hamida Bai (1), which has been followed by Z. C. Valiant, J., in A. S. Mughal v. Mst. Khurshid Azmat Ali (2) and by Ali Nawaz Budhani,J. In Wahid Shah v. Haider Mirza (3), the facts were that the landlord had not served notice of two months as required under section 14 of the Ordinance and had filed application for eviction even before the expiry of two months from the date of service of notice. He had however, served a notice (1) P L 1) 1981 Kar. 794 (2) PLD 1982 Kar. 406 (3) PLD 1983 Kar, 678 dated 30-1-1980, and another notice requiring the tenant to hand over peaceful possession of the premises forthwith. 10.' Dealing with the provisions of section 14 of the Ordinance the learned Judge observed that it was clear that section 14 of the Ordinance seems to provide expeditious summary remedy to a widow, orphan, a person who has retired from service or has attained the age of 60 years and that if technicalities are to be strictly observed and enforced then the very object of the said provisions would be frustrated. The learned Judge further observed that he was inclined to hold that the Court is to see whether there has been substantial compliance of the provisions and that the spirit of section 14 of the Ordinance seems to be that a tenant is to be provided two months period before an order of ejectment is passed under the said provisions.. I may here quote the relevant observations which appear at page 797 of the report :- "It is also clear that section 14 of the Ordinance seems to provide an expeditious summary remedy to a widow/orphan, 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. I am inclined to hold that the Court is to see, whether there has been substantial compliance of the above section. The spirit of section 14, seems to be that a tenant is to be provided 2 months' period prior to order of ejectment summarily under the above provisions. In the instant case the notice dated 30-1-1980 under section 14 was served in or about first week of February, 1980 whereas the ejectment order was passed on 19-4-1981, i,e, after the expiry of more than one year. Since the rent case was filed on 2-3-1980, the Rent Controller could not have passed an ejectment order immediately on receipt of the application for ejectment, as the two months' period had not expired by then. However, during the pendency of the rent application the cause of action matured as admittedly on the date of the passing of the ejectment order, more than one year had expired from the date of service of the notice and from the date of filing of the ejectment case." ' It was further observed that technical objection like validity of a statutory notice are to be raised at the earliest. So that defect if any, may be rectified, and a party cannot be permitted to raise
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such a plea at the appellate stage particularly, when no material prejudice has been caused to him. 11. This case was taken to the Supreme Court (reported as Wali Muhammad and another v. Mst. Hami Ia Bai (I) and the judgment of the High Court was upheld but on the ground of failure to raise the objection at proper time and I quote from the judgment :- "It is true that the period prescribed is two months and the notices suffered from this infirmity, but if this objection had been taken before the Rent Controller, the defect would have been rectified by the respondent and the delay of an order would not have ensued. The prescribed period is for the benefit of the tenant and is intended to allow him sufficient time to vacate the premises and further he cannot be objected summarily under section 14 of the said Ordinance without the efflux of time. It is the statutory requirement, U) 1983 SCMR 191 but in the circumstances of the case as the appellants has failed to raise this objection at the earlier stage and allowed a year to pass, the High Court was correct in holding that there was no substance in this legal objection which was imminently against the spirit of the provision which allowed summary relief to the widow." 12. It is clear from the observation made in the above case that the Supreme Court ruled that a notice which was not for a minimum period A of two months as required by the provisions of section 14 suffered from! Infirmity. 13. In the case of A. S. Mughal it was observed by Z. C. Valiani, J., that if the provisions of section 14 of the Ordinance as to notice were sufficiently complied with then technicalities on which the counsel for the appellant had tried to rely could not be permitted to frustrate the provisions of section 14 of the Ordinance and in this regard he relied on the aforesaid judgment in Wali Muhammad's case. 14. In the case of Muhammad Younus v. Mst. Hameeda (1), Ajmal Mian, J., overruled the objection to such a notice for the reasons :- "If technical lities are to be strictly enforced, the very object of the above provision will be frustrated. I am inclined to hold that the Court is to see, whether there has been substantial compliance of the above section.. The spirit of section 14, seems to be that a tenant is to be provided 2 months' period prior to ordering of ejectment summarily under the above provision." 15. In Wahid Shah v. Haider Mirza (2), Ali Nawaz Budhani, J., has simply relied on the case of Wali Muhammad (supra) and referred to the observation made therein. 16. In Mir Mustafa All Khan v. Mst. Safia Maqsood (3). Saeeduzzaman Siddiqui, J. Held that where a landlord makes an application under subsection (3) of section 14 of the Ordinance, on the allegation that notice was served on the tenant before filing the application as required under subsection (3) of section 14 of the Ordinance and fails to substantiate his allegation regarding service of prior notice at the trial then the object of notice under this section can be achieved if the order is made by the Controller for eviction of tenant after expiry of the period of two months from the date of service of notice of application of the landlord on the tenant. He further observed that service of no:ice of application of landlord on the tenant and expiry of period of two months in such circumstances,' would amount to substantial compliance of provision of subsection (1) of section 14 of the Ordinance and that it would not be proper to non-suit a landlord on this technical ground as he could again bring another application after service of fresh notice to which there could be no defence if he otherwise fulfilled other qualifications laid down in section 14 of the Ordinance. 17. In the case of Sved Riazul Hassan Shah v. Zamirul Haq (4), Fakhruddin H. Shaikh. J., has simply agreed with the decision of Ajmal Mian, J., in Wali Muhammad v. Mst. Hameeda Bai (supra). 18. In the case of Aurangzeb Dar v. S. M. Alam (5), B. 0. N. Kazi, J.. (1) 1982 CLC 580 (2) PLD 1983 Kar. 628 (3) 1983 CLC 349 (4) 1983 CLC 2274
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(5) 1983 CLC 3220 observed that the mere fact that in the notice it was stated that the tenant should vacate the premises within two months instead of on expiry of two months was if at all, a matter of technical defect and the learned Judge too relied on Wall Muhammad v. Mrs. Hameed (supra), and he observed as follows : "that if technicalities are to be strictly enforced, the very object of the provision of section 14 will be frustrated and that the spirit of section 14, seemed to be that a tenant is to be provided two months' period prior to ordering of ejectment summarily." 19. Taking up the last cited case namely, Abdul Razzak and 5 others v. Mst. Yasmeen Khanum and 4 others (I), which is in line with the above-mentioned cases it may be stated that the learned Judge expressed the view that the period of two months is co-related to the order of eviction that would be passed by the Controller under section 15(3) of the Ordinance and not with the launching of the ejectment proceedings that may have to be filed if the tenant refuse to comply with the request contained in the notice. The learned Judge in this case further observed "that the notice is intended to "inform the tenant that he or she needs the building for personal use and require him to deliver vacant possession of the building........"But for such vacation the tenant must be given at least two months time. The learned Judge was of the view that the object of the notice in this section is not intended to be a condition precedent to the launching of the action for ejectment as happens to be the case in some statutes. The learned Judge proceeded to give an example and I quote :- "Under old section 80, C. P. C., there was a bar to filing any suit against the Government unless a notice was not served on the Government concerned. I am prepared to go to the extent that in certain cases the filing of the ejectment application may itself be treated to be a notice of desirability of the landlord to occupy the premises. In such cases the ejectment application must be entertained for adjudication but no order for eviction would be passed against the tenant before the expiry of at least two months from the date of service of the filing of the proceedings on the tenant and the writ of ejectment. This may appear to be an extreme view but I see no difficulty in interpreting the section in the above terms for the object .Of serving a notice is to buy time for the convenience of the tenant and not to bless the ejectment proceedings with a rebuttal in the shape of a notice which I may again repeat is not a condition precedent for filing an action but merely as "information" to the tenant." 20. Having mentioned all the cases in which the provision of serving the notice of section the Ordinance have been liberally construed, I now, proceed to examine the provisions of sections 14 and 15 of the Ordinance in the light of the well-settled principles of interpretation of the statutes. 21. First, I shall examine the provisions of section 15 of the Ordinance which are general provisions. According to these provisions where a landlord seeks eviction of the tenant otherwise than is accordance with the provisions of section 14 of the Ordinance, he has to prove that he (1) 1985 CLC 1048 requires the premises in good faith for his own occupation or use or for he occupation or use of his spouse or any of his children. The only condition imposed under these provisions is that he should require the premises in good faith. Now, the provisions of section 14 of the Ordinance are special provisions and it is settled rule of interpretation that in an enactment contains general provisions and special provisions in respectof the same subject then such special provisions are considered to b exception, and, if a person wishes to take advantage of special provisions, and, if any condition is imposed by the special provisions he must strictly comply with the same. ' If any authority is needed reference may be had to Birendra Mohan Das v. Aminuddin Malik Represented by 3 others (1), wherein it was, held that where action is taken under a special statute it must fulfil the condition of that statute to gain validity. I may state that the principle is equally applicable where a statute contains general as well as special provisions.
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22. I may also refer to a passage from "Craies on Statute Law", pages 266, 1971 Edn., which would also be applicable to this case :- "As a general rule, statutes which enable persons to take legal proceedings under certain specified circumstances must be accurately obeyed notwithstanding the fact their provisions may be expressed in merely affirmative language." 23. Another principle of interpretation of statute which is well settled and which is attracted in this case is that when a statute creates new rights and obligations and prescribes the mode of their enjoyment or enforcement, such provisions are construed mandatory and that the Legislature intends compliance of such provisions to be essential to the validity of facts or proceedings. Reliance is placed on "Maxwell on Interpretation of Statute", page 364, 11th Edn,, and I quote therefrom:--##TE# "Where powers, rights or immunities are granted with a direction that certain regulations, formalities or conditions shall be complied with, it seems neither unjust nor inconvenient to exact a rigorous observance of them as essential to the acquisition of the right or authority conferred, and it is therefore probable that such was the intention of the Legislature." 24. The American view on the aforesaid, rules as expressed by Crawford in his well-known book "Crawford on Statutory Construction" at page 526, is same and it would be of advantage, if I quote the same here :"A statute which creates a new right, privileges or immunity and regulates the manner of its exercise, will be construed mandatory. In other worth, the right can be exercised only in the manner and within the time prescribed. Similarly, when a statute gives a new right and prescribes a particular remedy for its recovery, such remedy must be strictly pursued ; though it is otherwise where a statute gives a right without prescribing a remedy." 25. The above-stated rule has been followed by Fakhruddin G. Ebrahim, J., in the case of Messrs Slem Sons Limited v. Sind Labour Appellate Court, Karachi (2), wherein while examining the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, (1) 1970 SCMR 304 (2) PLD 1973 Kar. 1968, he observes that it is special statute dealing with the special subject namely, relationship between master and servant; it provides that the condition of the employment of workmen in the specified industrial and commercial establishments shall be regulated in accordance with the Standing Orders. The Standing Orders, among other things, create new rights and obligations between master and servant and prescribe mode of its enforcement and enjoyment. ' Accordingly, he held that the provisions in paras. (a) and (b) of the Standing Order No, 18 are mandatory and since respondent 2 in that case had not strictly complied with the same. Respondent 1, had no jurisdiction to entertain the complaint made by respondent 2 in respect of either of two grievances mentioned in the order. This case though relates to a different provision, but by parity of reasoning it would apply with full force to the present case and the question can be answered in the light of the same. 26. 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 specified 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 the general provisions he has to prove good faith. The right of a landlord to apply for eviction of the tenant under section 14(3) of the Ordinance accrues to him, keeping in view the provisions of the proviso and subsection (2) only when tenant fails to deliver possession of the building in his possession on service of notice as required under subsection (1), thus his cause of action matures only when the period of notice expires. It therefore, follows that unless notice in accordance with the provisions of section 14 of the Ordinance is served and the period mentioned
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there in expires he cannot apply to the Controller for eviction of the tenant. This is the condition precedent and without service of notice under section 14(1) of the Ordinance he cannot apply to the Controller. 27. If a landlord files an application in complete disregard of the provisions of section 14 of the Ordinance it cannot be said that he had merely failed to observe a mere technicality. In such a case, in my opinion, he does not acquire any right whatsoever to file such an application. The Sind Rented Premises Ordinance, 1979, which is a special law and section 14 which is a special provision gives him a special right to apply for eviction of the tenant. In order to enforce such a right the landlord is required to fulfil the condition of serving the notice in writing which should not be of less than two months, for, the right is not absolute. It is circumscribe the condition of serving notice. When the notice is to be served it must be served in accordance with the provision of section 14 of the Ordinance otherwise it will be any but a notice under section 14 of the Ordinance. In the case of Khawaja Muhammad Razzak v. Omar Farouk (supra) I had an occasion to deal with a similar question and quote therefrom:- "Now, I take up the second ground. In relation to this ground it.Is urged that under section 14 of the Ordinance a landlord having the qualification prescribed by section 14 of the Ordinance is required to give to his tenant a notice of minimum two months to vacate the premises In this case, it is submitted, that notice served by the respondent on each of the appellants was that he should vacate the premises within two months which notice it is contended, is therefore, not according to law, and consequently invalid. The contention has substance for under section 14 of the Ordinance a right has been conferred on certain classes of landlords to apply for summary eviction of tenants on fulfilment of certain conditions. It is, therefore, necessary that those conditions must be strictly complied with, for under this provision, the necessity of proving requirement of the premises in good faith which is the necessary condition…
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