1992 PLP 1003 (MLD)

The respondent is the owner of the premises situated on Ram Bharti Street, Jodia Bazar, Karachi. She sought ejectment of the appellant therefrom under section 14 of the Sindh Rented Premises Ordinance on the ground that she had attained the age of 60 years and she required the premises for personal use. According to the respondent, there was no other house or building owned by her in Karachi and as such she was entitled to the benefit of section 14.

2. The application was resisted by the appellant according to whom, the respondent was only 45 years of age. It was further contended on behalf of the appellant that a case earlier filed by the respondent on the ground of personal bona fide need was decided against the respondent by this Court, therefore, according to the appellant, the application under section 14 was barred by the principle of res judicata. It was also alleged that the respondent had owned another house in North Nazimabad in which she was still residing and consequently, she could not claim the benefit under section 14 of the Sindh Rented Premises Ordinance.

3. On the basis of the aforesaid pleadings of the parties, the learned Controller framed the following issues:‑ (1) Whether the previous rent case under section 15 of the Sindh Rented Premises Ordinance acts as res judicata for the present proceeding? (2) Whether the applicant has attained the age of 60 years? (3) Whether the applicant was entitled to eviction of the opponent under section 14 of the Sindh Rented Premises Ordinance? (4) What should be the final order?

4. In regard to issue No.1, the learned Controller held that the case was not barred by the rule of res judicata as the issues in the precious proceedings and the subsequent proceedings were different. As regards the merits of the case, the learned Controller found that the respondent had attained the age of 60 years as shown by her National Identity Card and Passport which has been produced by the respondent in evidence. Consequently, the learned Controller arrived at the conclusion that respondent was entitled to an order of eviction under section 14 of the Sindh Rented Premises Ordinance and consequently, the appellant was ordered to be evicted from the demised premises as pointed out earlier.

5. I have heard Mr. Manzur‑ul‑Haq, learned counsel for the appellant and Mr. Rana Muhammad Ahmed Khan learned counsel for the respondent.

6. So far as the merits of the case of the respondent are concerned, it was clearly established by the respondent through her National Identity Card and the Passport that she had attained the age of 60 years. Both the National Identity Card as well as the Passport (Annexure "C" and Exh.P.2) show the respondent's date of birth as the 21st June, 1929 which shows that she had already attained the age of 60 years at the time of the filing of the eviction application. Although, the factual position was not admitted by the appellant in his written statement but no substantial evidence could be produced by him in rebuttal. Needless to say that the National Identity Card and the Passport could be validly relied upon by the learned Controller in support of the proof of the age of the respondent (See 1981 SCMR 840 and 1990 CLC 703). No doubt, it was contended by the appellant that the respondent was in occupation of another house owned by her and as per her own admission she was living in a house situated in North Nazimabad, Karachi but it was not admitted by the respondent's husband and attorney Adam Khan that the said house was owned by the respondent. According to him, the house was, in fact, owned by the said attorney. Various documents were produced in evidence such as possession order issued by the K.D.A. dated 12‑10‑1961, acknowledgment of possession dated 23‑10‑1961 and a registered lease deed between the K.DA. and Adam Khan which established beyond doubt that the property situated in North Nazimabad was not owned by the respondent. Mr. Manzur‑ul‑Haq, learned counsel for the appellant has, however, referred to the evidence earlier given by the respondent in Rent Case No.1430 of 1985 filed by her against the appellant wherein she had stated that the house in Nazimabad was owned by her. Although, this was denied by the respondent's attorney Adam Khan during his cross‑examination that any such admission had been made by the respondent in the earlier proceedings but it may ‑be pointed out that even if assuming that such admission had been made by the respondent in the earlier proceedings, the same could not be relied upon as a conclusive proof of the matter. At best it could operate as estoppel against the respondent (See section 45 of Qanun‑e‑Shahdat). On the other hand, there was documentary evidence to establish that the house situated in Nazimabad was not owned by the respondent. Needless to point out that subsection (2) of section 14 would have operated as a bar only in case it could be established by the appellant that the said house situated in Nazimabad besides being in occupation of the respondent was also owned by her. There being no such evidence before the learned Controller, the application before him was rightly granted in favour of the respondent.

7. It was contended by Mr. Manzur‑ul‑Haq that the reasons given by the respondent in regard to her need of the premises in question were far from satisfactory. According to the learned counsel, when the landlord states reasons for his requirements then he must also establish his bona fides. There appears to be no force in his argument because all that is needed by section 14 is a notice in writing by the landlord informing the tenant that he or she ads the building for personal use and requires 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. Consequently, it is not imperative for the landlord to establish his or her bona fides. Mr. Manzur‑ul‑Iiaq also led much stress on the point that the application was hit by the principle of res judicata. However, this contention of the learned counsel is also devoid of any force firstly because the issues in the previous case which was filed under section 15 of the Sindh Rented Premises Ordinance and the present case were not the same and secondly because the question whether the house situated in Nazimabad was owned by the landlady was not directly or substantially in issue in the previous proceedings. Consequently, the learned Controller has rightly rejected the appellant's objection in regard to res judicata.

8. In the result, I find no force in this appeal and the same is dismissed The parties are, however, left to bear their own costs. It was further ordered by consent that the appellant shall not be ejected from the demised premises for a period of two months. H.B.T./Z‑174/K Appeal dismissed.