Rent Case No. 6541/80 was filed by the respondent/landlord, Ahmed Ibrahim Ameen against the appellant/tenant, A. Ghani Danawala. The Rent Application was filed under section 14 (1) of the 1979 Rent Ordinance. The premises in question is the house No. B-7, Dhoraji Colony, Karachi, which is in occupation of the appellant at a monthly rent of Rs. 250. It was mentioned in the Rent Application that earlier to the instant Rent Applica--tion, the respondent had filed a Rent Case No. 813/80 against the appellant on the ground of personal bona fide requirement and default and that the said Rent Case (admittedly filed under section 15 of the 1979 Ordinance) was pending before the Rent Controller. In the instant Rent Application filed before the Rent Controller on 13-11-1980, the respondent stated that during the pendency of the previous Rent Case, he realized that he was attaining the age of 60 years and was, therefore, entitled to the benefit under sec--tion 14 (1) of the 1979 Ordinance. In the circumstances, the respondent served a legal notice, dated 31-8-1980 upon the appellant under section 14. The appellant replied through his Advocate's letter dated 14-9-1980 denying the allegations made in the notice. It was further averred in the instant Rent Application that the respondent was going to attain the age of 60 years on 13-2-1981 and that the premises in ,question were required by the I respondent for his, use and for the use of his sons and that he did not own any other property in Karachi and that he was temporarily staying with his in-laws in a premises of two rooms accommodation which was not sufficient for his family. A. Written statement was filed by the appellant on 2-12-1980, in which certain preliminary objections were taken which were that the property in question belonged to the wife of the respondent (Mst. Amino.
Bai) who was the real owner and that there was no relationship of landlord and tenant between the parties as the property belonged to the wife of the respondent, and that as the property was situated in Dhoraji Colony, the same could not b6 transferred to or owned by persons not belonging to Dhoraji and the respondent did net bail from Dhoraji and as such the house in question could not be transferred to him. It was further pleaded that the respondent had purchased a bungalow for self occupation and as such the application was barred under section 14 (2) of the 1979 Ordinance. In the written statement the allegations on merits contained in the Rent Application were denied. On behalf of the respondents, he examined himself and his son Farooq Amin. Affidavit-in-evidence of one Muzhar Hussain was also filed on behalf of the respondent but as he was not tendered for cross-examination his evidence has not been taken into consideration by the Rent Controller. On behalf of the appellant, the appel--lant examined himself, Dr. A. Sattar and one Ali Muhammad, who was an ex-Secretary of Dhoraji Association, Karachi. The Rent Controller by his. impugned order dated 20-8-1981, holding that the Rent Application under section 14 (1) of the 1979 Ordinance filed by the respondent was maintainable and that the respondent was entitled to avail the benefit under section 14, allowed the Rent Application and directed the appellant to hand over vacant possession of the house in question within two months from the date of the order. It is against the said impugned order dated 20-8-1981 of the Rent Controller, that the present First Rent Appeal No. 491/81 has been filed by the appellant/tenant. This First Rent Appeal was admitted by my order dated 25-10-1981 and as it was a matter under section 14, I had fixed the regular hearing of the Appeal for 6-12-1981, on which date arguments were heard and judgment was reserved. I have heard Mr. Abdul Sattar G. Shaikh, learned counsel for the appellant, and Mr. Munawwar Malik, learned counsel for the respondent. Learned counsel for the appellant, bad raised the following contentions in support of the tenant's appeal;
(a) The respondent was dismissed from service and not retired and as such the Rent Application filed by him was not maintainable ;
(b) The Rent Application was not maintainable as it had not been proved that the respondent had attained the age of 60 years ;
(c) The respondent owned another house which he had purchased in Karachi and which was occupied by him and as such the Rent Applica--tion, was barred by section 14 (2) of the 1979 Ordinance ;
(d) The premises in question originally belonged to Mst. Amino. Bai wife of the respondent and the same were gifted to the respondent through an oral gift. According to learned counsel for the appellant, this gift was a fraudulent not being from Dhoraji, the transfer by gift could not take place and as such the respondent was not the owner of the house in question ;
(e) Other proceedings had been initiated by the respondent and in view of the same, the instant Rent Application was not' competent.
2. As regards the first contention, on behalf of the appellant an applica--tion was also filed in the present First Rent Appeal, being C.M.A. 2595/81 praying that additional evidence of an officer of the Pakistan Railways, Lahore be allowed to be recorded to establish that the respondent was dismissed from service on 13-4-1979 and that he had not retired from service. A perusal of the Rent Application shows that the ground on which the Rent Application under section 14 (1) was filed was that he was attaining the age of 60 years which is a separate ground available for filing such an application. It was not his case that he had retired or was retiring and, therefore, wanted the premises. In the circumstances this application C.M.A. 2595/81 is without any merit and the same is dismissed. It is not necessary to call for additional evidence relating to retirement or dismissal of the respondent from service of the Pakistan Railways as the application was filed not on the ground of retirement but on the ground of retirement but on the ground of attaining the age of 60 years.
3. The second contention of learned counsel for the appellant was that it had not been proved that the respondent had attained the age of 60 years. It may be mentioned here that along with the Rent Application the respondent had filed photostat copies of the extracts from his passport and also of his National Identity Card to show his date of birth as 13-2-1921. Learned counsel contended that these two documents were in the nature of private record and the extract from the Birth Register ought to have been produced toprove his age. I do not find any substance in this contention for the reason that in his affidavit-of- evidence, the respondent had stated that he was attaining the age of 60 years on 13-2-1981 and there was no cross-examination on behalf of the appellants of the respondent on this point. R & P of the Rent Controller had been requisitioned and from the affidavit-in-evidence of the appellant, I find that this assertion of the respondent that he was attaining the age of 60 years on 13-2-1981 has not been challenged by the appellant. In fact if para. 8 of the affidavit-in-evidence dated 14:1-1981 of the appellant is perused, the only conclusion that can be reached is that this fact was admitted by the appellant. Para. 8 of the affidavit-in-evidence of the appellant reads as follows:- "That in fact applicant's wife Mst. Amina Bai is owner of the house in question and as such the applicant attaining the age of 60 years does not entitle him to seek my ejectment from the house in question."
4. The third contention of learned counsel for the appellant was that the respondent had purchased a house in Gulshan-e-Iqbal, Karachi and that he had shifted from the premises of his in-laws. The fact that the respondent had shifted from his in-laws' premises to the house in Gulshan-e-1qbral has been admitted by the respondent but his deposition shows that there was a dispute between his wife and her brother, Dr. Abdul Sattar (witness of appellant) and that on account of the attitude of Dr. Abdul Sattar, respondent and his family had to shift temporarily to the house in Gulshan-e-Iqbal which belonged to his college friend Mazhar Hussain, and that Mazhar Hussain had allowed him to occupy his house temporarily till such time the house in question was vacated by the appellant. In this connection the respondent has given evidence who is supported by his son who has also given evidence to that effect. On the other hand, the appellant in his evidence stated that the house in Gulshan-e-Iqbal had been purchased by the respondent and then relied upon the evidence of Dr. Abdul Sattar, brother of Mst. Amina Bai. Both these witnesses Wed that they had not seen the sale-deed being executed or that the transaction of sale had taken place -in their presence. Further as far as Dr. Abdul Sattar is concerned, in his cross- examination it has become clear that be was on inimical terms with Mst. Amina Bai and that there were previous disputes between Dr. Abdul Sattar and his sister Mst. Amina Bai and a letter had also been produced in cross-examination which was written by Dr. Abdul Sattar to Farooq Amin, son of the respondent, in which he admitted that be was a drunkard and leading a miserable life in Englann. From the evidence on record, I am of the view that the Rent Controller came to the correct conclusion that it was not established or proved that the respondent dad purchased the house in Gulshan-e-lqbal. I see no reason to take a different view on the basis of the evidence on record.
5. The other contention raised by learned counsel for the appellant was that the house in question belongs to Mst. Amina Bai who is from Dhoraji, whereas the respondent is not from Dhoraji and as such the gift made in 1977 was invalid. It was also contended that it was a fraudulent gift. In my view, the Rent Controller has taken a correct view while rejecting this contention of the appellant.
The property had been gifted to the respondent through an oral gift and declaration evidencing the gift was made by the wife of the respondent on 28-5-1977. The said gift was accepted by the respondent. Mst. Amina Bai has not challenged this gift. Further in the .4 proceedings before the Rent Controller, on the basis of the evidence relating to this gift, the Rent Controller came to the right conclusion that the property had been transferred to the respondent and that the validity of such a gift could not be challenged in the facts and circumstances of the case. The other leg of argument relating to this contention raised by the learned counsel for the appellant was that the respondent did not belong to Dhoraji Community and, therefore, this transfer was an invalid transfer. In this connection it may be mentioned that the bye-laws of Dhoraji Society or Colony have not been produced. It has not been established before the Rent Controller that by some law the gift in question could not be made at all by Mst. Amina Bai in favour of her husband. Further, witness Ali Muhammad, who had appear--ed on behalf of the appellant had given a certificate, dated 4-12-1980 as ex-Secretary of Dhoraji Association in the following words; "To whom it may concerti.-I know Mr. Ahmed Ibrahim Ameen, son of Ibrahim for a long time. He belongs to Dhoraji and visited me in his student days while I was working as Secretary Muslim Yateem Khana situated in Bharpura Dhoraji and he was also residing in the same locality. He got married to Mst. Amina Bai, daughter of Seth Haji Abdullah Ahmed, who was well-known in Dhoraji for his services in the cause of education."
According to this certificate dated 4-12-1980, therefore, the respondent belongs to Dhoraji Community. In his affidavit-in-evidence dated 14-1-1981, Ali Muhammad, however, had stated that the respondent did not belong to Dhoraji Community. But the very same witness had issued that certificate dated 4-12-1980 showing himself as ex-Secretary of Dhoraji Association and in cross- examination this certificate was shown to him when he accepted that had issued the certificate and it was produced as Exh. 6-A. Learned counsel for the appellant relied upon another certificate dated 16-12-1980 issued by the same witness Ali Muhammad in which he stated that his earlier certificate dated 4.12-1980 had been issued on account of lack of information and that he was withdrawing the said certificate but he admitted that Mst. Amina Bai belonged to Dhoraji Community. Now this second certificate dated 16-12-1980 was filed along with an application for extension of time for filing further documents on 7-1-1981. The witness Ali Muhammad was cross- examined on 9-7-1981 and neither any. Question in re-examination was asked about the certificate dated 16-12-1980 nor the said Certificate was produced through Ali Muhammad in his evidence. In circumstances the said certificate dated 16-12-1981 cannot be taken into consideration. The position, therefore, that emerges is that even according to the witness of the appellant, as per his certificate dated 4-12-1980, the respondent belongs to Dhoraji Community. I may, however, observe that as neither the bye-laws of Dhoraji Community or Association or Colony were produced in evidence nor any law could be referred to by learned counsel for the appellant placing an embargo on the b transfer of the house in question by Mst. Amina Bai in favour of the respondent, the gift in question could not be challenged.
6. The last contention of learned counsel for the appellant related to other proceedings initiated by the respondent. Learned counsel referred to Rent Case No. 813 of 1980 which was filed prior to the instant Rent Case. This is an admitted position. However, the Rent case has been filed under the provisions of section 15 of the 1979 Rent Ordinance, and in my view, if C later on the respondent became entitled to file an application under section 14, the filing of the earlier application under section 15 or pendency of the same, did not debar the respondent from filing the instant Rent Application under section 14. Section 1.5 and section 14 give separate causes of action to the landlord and the filing of one application is no bar to the filing of the other application. Learned counsel then submitted that previously an application had been filed under M. L. O. 20 by the respondent against the appellant which was allowed by a Summary Military Court but then under the Military Courts Validation of Orders Ordinance, 1980, the said order of the Summary Military Court passed under M. L. O. 20 was deemed to have been passed under the 1979 Rent Ordinance. In the circumstances a First Rent Appeal was filed by the appellant against the said order of ejectment before this Court being First Rent Appeal No. 289/80 which was also ordered to be fixed on 6-12-1981 when the present Rent Appeal was fixed for hearing. On that date .Mr. Munawwar Malik, learned counsel for the respondent, conceded that the order of ejectment by the Summary Military Court had been passed without recording evidence and without giving an opportunity of hearing to the appellant and as such the order of ejectment passed by the Summary Military Court was liable to be set aside. In the circumstances, First Rent Appeal No. 289/80 was allowed by my order dated 6-12-1981 and the order of ejectment passed under M.L.O. 20 ordering ejectment of the appellant was set aside and the matter remanded to the Rent Controller for fresh decision according to law. The contention of learned counsel for the appellant, in the circumstances, that a stay had been granted in First Rent Appeal No. 289/80 in favour of the appellant against his ejectment, has no merit. Order of the ejectment passed under M.L.O. 20 has been set aside by the order passed by me on 6-12-1981 in First Rent Appeal No. 289/80 and in any case I am of the view that even the pendency of the First Rent Appeal No. 289/80 did not prevent the Rent Controller from passing an ejectment order in the instant Rent Case filled under section 14. As regards the Constitutional Petition No. 773 of 1977 filed in this Court by appellant against the aforesaid order of ejectment passed by the Summary Military Court, it may be mentioned that the said order has been set aside by my order dated 6-12-1981 passed in F.R.A. No. 289/80. In any case filing or pendency of Constitutional Petition No. 773/77 did not debar the respon--dent from taking recourse to section 14 of the 1979 Ordinance.
7. In the circumstances, I find no merit in this First Rent Appeal, which is dismissed, with no order as to costs. The appellant is, however, granted time till 31st January, 1982 to vacate the premises.