1990CLC703 (PLP)

Syed lzhar Haider Rizvi for Appellant. A.F.M. Mokarim for Respondent. Date of hearing: 6th August, 1989. Appellant Mohammad Bashir has called in question dismissal of his Rent Case No.980/86 on 22‑1‑1987 by the Vlth Senior Civil Judge and Rent Controller Karachi West.

2. Admittedly, respondent Moinduddin is tenant of the appellant in premises No.3/195, Commercial Area, Liaquatabad, Karachi at the monthly rent of Rs. 325 excluding other charges.

3. Appellant moved said rent case under Section 14 of the Sind Rented Premises Ordinance (hereinafter referred to as the Ordinance) for eviction of the respondent from the said premises on the main ground that the appellant had crossed the age of 60 years and he needed the premises for personal use as he wanted to start his own business in the said premises. Such notice was said to have been given to the respondent.

4. The rent case was contested by the respondent who took plea that the appellant was doing his own business in his own premises and he did not require the premises in litigation. He denied if the appellant was jobless or if the appellant had crossed the age of 60 years. Respondent denied if he had occupied adjacent premises No.3/194 and that he no more required the premises in litigation.

5. Learned Rent Controller after giving chance to the parties to adduce evidence by way of affidavits, passed the impugned order under which the rent case was dismissed. Under the impugned order the trial Court held that the appellant was not entitled to seek ejectment because he miserably failed to prove his age of 60 years and he had failed to prove that in the same building on first floor he was living with his family and that there was evidence that the appellant had owned premises on second floor of the same building, which were lying vacant.

6. Mr. Izhar Haider Rizvi, learned Counsel for the appellant argued that the National Identity Card produced in the case with affidavit of the appellant showed that the appellant was 50 years of age on date of its issue viz. 10‑1‑1974 and consequently finding about age should have gone in favour of the appellant. It was next argued that during cross‑examination of the appellant no suggestion was put to him if he was less than 60 years of age. Reliance was also placed on the passport and the Voters' Lists for 1986‑87, which were allowed to be admitted in evidence during pendency of this appeal, under an order dated 29‑1‑1989 passed by my learned brother Abdur Rahim Kazi, J. Learned Counsel for the appellant relied on statement made by respondent's witness Safdar during cross examination to the effect that the appellant was 70 years old. It was added that there was no proof if the appellant owned three other shops, and mere assertion of the respondent on this point was not enough. Learned Counsel for the appellant cited the case of Muzaffar Ali v. Tauqeer Alam and others (P L D 1983 Karachi 445) where statement of the landlord that he retired in 1970 and was 68‑1 /2 years of age was not challenged in cross‑examination and it was supported by his National Identity Card and his Passport (the genuineness of which was not challenged although the same were not allowed to be produced in evidence) and on that basis age of the landlord was accepted to be 68‑1/2 years.

7. On the other side, learned Counsel for the respondent claimed to have challenged assertion of the appellant about his age during his cross‑examination, where the appellant said that he had no proof about his age except his Identity Card, the form for which was filed by a person of concerned department. Learned Counsel for the respondent did not want admission of his witness Safdar Khan about age of the appellant to be accepted and went on to argue that the date of birth was not given in the Identity Card, which was based on a form filled not by the appellant. In respect of the passport, it was argued that the same was prepared on the basis of the Identity Card. Entry in respect of the appellant in the electoral roll, was said to have been inserted on the basis of the information supplied by the appellant himself, and no authenticity attached to such entry, as further argued. Learned Counsel for the respondent cited the cases of Mst. Shamsa Khatoon v. Anwar Ali (1984 C L C 2291) and Dr. Rosban v. Mst. Razia Khatoon 1984 C L C 2343. In former case, the view taken was that a landlady in occupation of ground floor of her building, was not entitled to seek ejectment of her tenant on the ground of her personal requirement. In latter case, the evidence in support of plea of requirement for personal bona fide use was contradictory and untrustworthy and such plea was not accepted.

8. The appellant in his affidavit had stated that he had attained the age of 60 years but had no place for his business and that he was jobless for preceding 2 years and had no ‑source of livelihood or income. It was not suggested to the appellant in cross‑examination if he was below 60 years. Although the Identity Card does not give birth date of the appellant, but it clearly mention his age of 50 years in 1974. Hence as per the Identity Card, the appellant is over 60 years. A There is no reason to ignore admission of respondent's witness Safdar Khan in cross‑examination to the effect that the appellant was of 70 years and so also the respondent. In electoral lists the appellant is shown to be 65 years old. This evidence was sufficient to establish age of the appellant to be over 60 years in view of the observations made in the case of Muzaffar Ali reported in P L D 1983 Karachi 445.

9. Next point arises, if present case is covered by subsection (2) of section 14 of the Ordinance. Although the appellant is residing in first floor of his building but there is nothing on record to show if he owns any shop like the shop in litigation, which is situated on the ground floor. The appellant in his cross examination denied if he was running the business of ready‑made garments at first floor of his house. He denied if he was having a shop at Qasimabad or Liaquatabad. On this point Respondent filed his own affidavit as well as affidavits of his witnesses Ghulam Farid, Mohammad Safdar, Aftab Ali and Abdul Karim. Respondent did not state in his written statement if the appellant was running his business at Liaquatabad or at Qasimabad. Said witnesses of the respondent said in their affidavits that the appellant was doing business in a shop. They admitted in cross that they never appeared before the Oath Commissioner, or before anybody for statement on oath. This shows that their affidavits were not attested in a proper way and the same cannot be relied upon as evidence. Respondent's C witness Mohammad Safdar admitted in cross that he had no knowledge about personal affairs of the appellant and about his source of livelihood. That he was giving evidence at request of the respondent. Respondent's witness Aftab Ali did not give whereabouts of the shop where he had seen the appellant doing business. Aftab Ali admitted in his cross that he was giving evidence at request of the Respondent. In this way the Respondent has not been able to prove that case of the appellant was covered by subsection (2) of section 14 of the Ordinance.

10. As a result of the above discussion, I hold that case of the appellant was covered by section 14 (1) of the Ordinance and he was entitled to be given possession of the premises in litigation by way of ejectment of the Respondent from the same. Consequently, I accept this appeal and reverse the impugned order and order ejectment of the Respondent from the premises in litigation after two months from the date of this order. Z.S./M‑920/K Appeal accepted.