The appellant above-named being aggrieved by order dated 31st October, 1981 of the learned XVIth Senior Civil Judge and Rent Controller, Karachi, passed In Rent Case No. 642 of 1980, by which he has been ordered to be ejected, has preferred this appeal, on the following facts and grounds :-
2. Briefly stated the case of the respondent is, that she is owner and landlady of residential building situated on Plot No. 124-0, Block 2, P. E. C. H. S., Karachi, while the appellant is her tenant in respect of flat No. 2, which is on the ground-floor of the said building, at the monthly rent of Rs. 400 for the last ten years. It is alleged, that respondent is an old lady and suffers from high blood-pressure for the last five years and she needs the disputed premises for occupation of her daughter Mah Jabeen Sajid, as she is living with her in the house of Ziaul Haq, a relation of respondent on temporary basis and that relation is compelling the respondent and her daughter to vacate the same. It is alleged that the respondent with her daughter was living with her brother syed Asghar Ali for about six years in house No. 177-V, Block 2, P. E. C. H. S., Karachi. It is alleged, that on the death of Syed Asghar Ali in 1976 the relation between respondent and her Bhabi (wife of Syed Asghar Ali) became strained and the respondent was given one room to live and then she was compelled by her Bhabi to leave her house. Thereafter, respondent along with her daughter Mah Jabeen and her children has taken shelter temporarily in the house of Zisul Haq, bearing No. 143-P Block 2, PECHS, Karachi and this Ziaul Haq is now forcing her to leave his house. It is further alleged, that the respon--dent needs the disputed premises for her daughter Mah Jabeen Sajid, because Mah Jabeen needs the premises for the education of her children and the respondent need the services of Mah Jabeen in this old age, she being youngest daughter. It is alleged,. That prior to the filing of nis case, she had moved applications before the President of Pakistan, Governor of Sind and Martial Law Authorities, requesting them to help her in getting the vacant possession of the disputed premises from appellant, but all in vain. It is also alleged by the respondent, that she has given notice to the appellant under the law, but the appellant has refused to vacate the premises.
3. The appellant has filed his written statement in which he has admitted the tenancy, receipt of notice and the fact, that she is living with her relation Ziaul Haq. The appellant has denied the other allegation of the respondent. He has contended, that the respondent does not require the premises in good faith for her daughter. He has also contended, that the age of the respondent shown in para. 6 of the application is not correct and the proof of her age that she attained the age of 60 years on 30-9-1979, was concocted by her, for filing of this case, after the promulgation of the Sind Rented Premises. Ordinance, 1979. It is alleged, that the respondent has filed this case in order to compel the appellant and other tenants to enhance monthly rent. The appellant has also challenged the validity of the notice dated 27th November, 1979 and 4th December, 1979. The appellant has not specifically denied the fact, that prior to this case the respondent had moved the President of Pakistan, Governor of Sind and the Martial Law Authorities for getting the vacant possession from him of the disputed premises and she was not successful.
4. On the pleadings of the parties, the following issues had been framed : -
(1) Whether the ejectment application under section 14 of the Sind Rented Premises Ordinance, 1979 is maintainable in law?
(2) Whether the - respondent is entitled to avail the benefit under section 14 of the Sind Rented Premises Ordinance, 1979?
(3) What should the order be?
5. The parties have adduced oral as well as documentary evidence in support of their case. The respondent examined herself Exh. 2 and P. Ws. Dr. Gazanafar Ali Exh. 1, Mrs. Bilqis Haq, Exh. 3 and Mah Jabeen Exh. 4 or her side, while the appellant has examined himself as Exh. 5 and D. W. Akbtar Mahmood Exh. 6 on his side.
6. The learned Rent Controller having considered the evidence adduced before him and after bearing the learned counsel for the parties, allowed respondent's application, vide impugned order dated 31st October, 1981 and appellant being aggrieved by the said impugned order, has preferred this appeal on the grounds mentioned in the memo. Of appeal.
7. I have heard the learned counsel for the parties and have also gone through the impugned order as well as gone through various authorities cited by the learned counsel for the parties. I have also gone through the statements of all the witnesses produced by the parties as well as the documents on which the parties have relied and produced before the learned trial Court.
7. The first contention that has been raised by the learned counsel for the appellant before me was that at the relevant time the proviso to section 14 was as under :- "Provided that nothing in this subsection shall apply where more than six months have elapsed since the landlord has retired or attained the age of sixty years or, as the case may be, has become widow or orphan."
8. Learned counsel for the appellant in the light of the proviso sub--mitted, that the respondent could not have filed the application in question when more than six months had elapsed, since she attained the age of 60 years and as such the date of birth assumed great importance, for determining the maintainability of the application filed by the respondent. Learned counsel further submitted, that according to the original identity card pro--duced by the respondent, the date of her birth is not mentioned in the said card and as such the subsequent correction made at the request of the respondent, in the said identity card, which was done few weeks before the filing of the ejectment application in question, after the promulgation of the Sind Rented Premises Ordinance, 1979, unless the same is proved beyond reasonable doubt, the same ought to have been accepted as correct, by the learned lower Court. Learned counsel further submitted, that the learned lower Court has erred in accepting the date of birth of the appellant as 30th September, 1919 without any evidence on record to support such conclusion, on the contrary the respondent's application dated 25th April, 1979 at page 131 of the above appeal, addressed to the President of Pakistan shows, that on the said date she had already attained the age of 60 years an.. As such ejectment application filed by her on 5th February, 1980 was beyond six months, after her attaining the said age and as such was not legally maintain--able. In view of this, learned counsel submitted that the learned lower Court has failed to take into consideration this important piece of admitted documents, which was on record and as such come to wrong and erroneous conclusion, that the respondent's application was maintainable under the provisions of section 14 of the Sind Rented Premises Ordinance, 1979, a: it existed them. Learned counsel further pointed out, that the present proviso to section 14 was substituted in place of earlier proviso for the first time on 1st September, 1980 and as such was not applicable to the respondent's case as the respondent's application in question was filed on 5th February, 1980. Learned counsel further submitted, that medical certificate dated 9th January, 1980 of the Civil Surgeon, Karachi, on which reliance has been placed, that the respondent on the day of issuance of the said certificate was about 60 years, cannot be taken into consideration, as the said certificate was not proved in accordance with law, as the Civil Surgeon, who issued the said certificate was not examined by the respondent, to prove the said certificate. Learned counsel further submitted, that according to the state--ment of the respondent on oath her exact date of birth was communicated to her by her deceased brother in 1975, but still respondent made no efforts to get the same entered, till after promulgation of the Sind Rented Premises Ordinance, 1979 and as such in the face of her own application dated 25th April, 1979, respondent's own word in this connection cannot be relied upon in respect of her birth date, which is very material for the purpose of section 14 of the Sind Rented Premises Ordinance, 1979, as it existed at the time of filing of the respondent's application in question.
9. Learned counsel for the respondent on the other hand submitted that there was a bona fide mistake in the original identity card as well as in the Official records pertaining to identity card, which is evident from the copy of the said register, which is at page 263 of the above appeal and as such since the respondent, just before she applied for correction of her own identity card wanted to obtain the passport and came to know, that the year of birth was wrongly mentioned in the government records in connection with the identity card and as such she applied not only for issuance of the duplicate identity card but also for correction of her age and inclusion of her birth date, and as such no adverse inference can be drawn, simply because her said application happens to be few weeks before promulgation of Sind Rented Premises Ordinance, 1979. Learned counsel further submitted, that statement on oath of the respondent in which she has given the expla--nation and stated how she came to know the actual date of her birth in 1975 has rightly been accepted by the learned lower Court and since this is a finding of fact, based on evidence it should not be disturbed. In the alternative, learned counsel submitted, that amendment to the proviso to section 14 made on 1st September, 1980 would be applicable to the respon--dent's case and as such the question of exact date of birth is now immaterial. In support of this condition, learned counsel relied upon case reported in PLD 1978SC220.
10. 1 have carefully considered the above submission made by the learned counsel for the parties and have gone through the order of the learned Rent Controller in this connection and find that the learned Rent Controller has relied upon the fresh identity card as well as on respondent's passport Exh. J, which was issued on 16th January, 1980, and has accepted medical certificate Exh. 6/2 issued by the Civil Surgeon, Karachi, which was not proved in accordance with law, as the said Civil Surgeon was not examined before the learned Rent Controller, to prove the said certificate. I further find, that the learned Rent Controller has relied upon respondent's petition dated 25th April, 1979 addressed to the -President of Pakistan, marked G, in which she has stated that she was 60 years old, without considering the effect of the said petition as far as possible actual date of her birth, which was material for the purpose of proviso to section 14, as it then existed. If the statement of the respondent as mentioned in her petition dated 25th April, 1979 is accepted as correct, she had already attained the age of 60 years on/or before the said date and obviously her application, which was filed on 5th February, 1980 would be barred under the provision to the said section, as it then existed. This important question has been completely overlooked by the learned Rent Controller. I have no hesitation as far as the stand of the learned counsel for the respondent is concerned, that application for issuance of duplicate identity card and correction of age was made bona fidely, but the inclusion of the date of birth in the new identity card could have .Been in view of the promulgation of the Sind Rented Premises Ordinance, 1979. However, be as it may be, the date of birth of the respondent as given in the new identity card and passport Exh. Cannot be accepted as correct, in view of her petition dated 25th April, 1979 addressed to the President of Pakistan and as such the application in question ought to have been filed on or before 25th October, 1979, according to the proviso to section 14, as it then existed, but admittedly the ejectment application in question was filed on 5-2-1980 and as such, in my opinion, it was not maintainable under section 14 of the Sind Rented Premises Ordinance, 1979, as it then existed.
According to learned counsel for respon--dent, in view of the substitution of the previous proviso to section 14, by new proviso on 1st September, 1980, the question of the date of birth of the respondent became unimportant, as on the basis of the new proviso, which was introduced on 1-9- 1980, respondent's application, once she attained the age of 60 years would be maintainable, provided she has not rented out the premises after attaining the age of 60 years. In the present case, there are no allegations, that the respondent had rented out the premises in question, after attaining the age of 60 years and as such her application under section 14, under the proviso introduced on 1st September, 1980 would be maintainable. I have carefully considered this submission of the learned counsel. The only question which requires consideration is, that since the original application dated 5-2-1980 was not maintainable under the old proviso, whether it could be granted, as it became maintainable under the new proviso or the same should be dismissed. In this connection, the reliance placed by the learned counsel for respondent, on the case of Mst.
Amina Begum and other3 v. Ghulam Dastgir PLD1978SC220, is very important. In this case, the Hon'ble Supreme Court has laid down, that -the Appellate Authorities, in the exercise of discretion vested in them not precluded to allow any bona fide amendment and take note of subsequent event, in order to suitability mould relief on basis of altered circumstances, in order to avoid multiplicity of litigations and shorten proceedings. This was the case, where a cause of action which had matured during the pendency of the original ejectment application and further in the said case the cause of action, which was available to the applicant, on account of the protection of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 was postponed for the period mentioned in the said section, but the said cause of action on the day when the application in question was filed was available to the applicant. However, in the present case the position is quite different, as on the day when the ejectment application in question was filed, the cause of action and/or right to file the said application was not at all available to the respondent, in view of my above conclusion, on the basis of the proviso to section 14, as it then existed. 1t was only after replacement of the old proviso, a fresh cause of action may have accrued to the respondent, under the present proviso and as such in my humble opinion, the law laid down by the Hon'ble Supreme Court in this reported case is not applicable to the present case, specially as under section 14, as it then existed, the only question that was to be considered was whether the respondent was aged 60 years and whether her application was not barred, in view of the proviso to the said section, as it then existed. The question of bona fide and good faith or even inquiry in this connection was not at all contemplated in the present case unlike the case reported in PLD 1978 SC 229. In view of this, I am not inclined to exercise my discretion, in respect of special remedy under section 14 of the Sind Rented Premises Ordinance, 1979, in favour of the respondent, by giving the benefit of the substituted proviso to section 14, in respect of her application, which was filed prior to that substitution, as no cause of action or a right t file the said application was at all available to the respondent, on 5th February, 1980, in view of my finding that on her own admission, respondent had attained the age of 60 years on/or before 25th April, 1979 and a such her application under section 14, on 5th February, 1980 was complete barred under the provisions of the then proviso of the said section. This view of mine, in my opinion is fully supported by case reported in PLD 1971 SC 82, in which it is held :- "The ordinary rule is that the right of the party must be determined as on the date of the suit and not on the basis of right which accrued to them after the institution of the suit. It is open to the appellant to rely on this ground in separate proceedings for taking possession of the properties acquired under the above-mentioned general notification and it will be open to the respondents to challenge the validity of this notification in those proceedings. It will be noticed that the Courts below have only granted relief to the appellant on the basis of the notification alleged to have been issued and published under section 3(1) of the East Bengal Estate Acquisition and Tenancy Act, 1950. There is no restraint on the appellant to take action against the respondents on the basis of any other ground that might have arisen on account of certain actions taken by them under the provisions of the said enactment. In these circumstances, I am not inclined to allow the appellant to raise this point in the appeal before this Court."
As well as by case reported in PLD 1965 SC 698, in which it is held :- "It may also be pointed that a Court is not bound to take notice of events subsequent to the institution of the suit though it has discretion to do so. It can adjudicate upon rights of parties as they existed at the date of the institution of the suit leaving the questions arising out of subsequent events to be decided in fresh proceedings."
However, I would like to make clear, that respondent's right to file fresh application under section 14, as it now exists should not be affected by this finding.
11. The second contention that has been raised by the learned counsel for the appellant in the above appeal was, that the premises in occupation of the present appellant are required by the respondent for the use of her daughter Mah Jabeen and her children. Learned counsel submitted, that the wording of section 1,44s very clear, that application under this section can only be moved for the personal use of the said premises by the applicant and not for the use of applicant's children. In this connection, learned counsel pointed out to me the difference in wording of section 14(1) and the section 15(2)(viii) which shows, that in the later section the Legislature has specifically mentioned the need of the spouse or any of his children, but in section 14(1) these words have been deliberately omitted by the Legis--lature in its wisdom and, therefore, on this ground the respondent's application against the present appellant was not maintainable, under the provisions of section 14(1), but in spite of this the learned Rent Controller has granted the said application.
12. Learned counsel for the respondent on the other had submitted, that definition of "personal use" as given in section 2(g) of the Sind Rented Premises Ordinance, 1979 covers applicant's daughter and as such the respondent's application is maintainable. In this connection the learned counsel has relied upon my unreported judgment in the case of Mrs. Tengra v. Pak Fiek Corporation Ltd. (F.
R. A. No. 443 of 1981 dated 23-9-1981). Learned counsel further submitted, that this objection was neither taken in the written statement nor urged before the learned Rent Controller and it has been taken for the first time before this Court and as such it should not be taken consideration otherwise also.
13. I have carefully considered the above submissions made by the learned counsel for the parties in connection with the above contention and I am of the considered opinion, that it is obvious from the wordings of section 14(1) and section 15(2)(viii), that the need of the children is no ground for moving application under section 14(1) of the Sind Rented Premises Ordinance, 1979, otherwise the Legislature would have clearly mentioned is so, as it has been mentioned in section 15(2)(viii) of the said Ordinance. This omission in my opinion is deliberate, as the proceedings under section 1 of the Sind Rented Premises Ordinance, 1979 are meant for the benefit of the applicant alone, unlike the proceedings under section 15(2)(viii) of the said Ordinance, as in an application under section 14(1) the question of good faith and bona fides ordinarily are not to be considered and summary procedure for ejectment has been provided, specially for the personal benefit of the applicant alone. The contention of the learned counsel for the respondent that the definition of the word "personal use" as given in section 2(g) of the Ordinance in question, covers the need of the children and as such non-mention of the said words in section 14(1) is immaterial, has no force, as in my opinion, if the arguments of the learned counsel for the respondent is accepted, then there was no necessity for Legislature to mention the need of children in section 15(2)(viii) of the said Ordinance,' as the definition of "personal use" was already available in the said Ordinance.) The specific mention of the need of children in section 15(2)(viii) shows, that the Legislature consciously with purpose, has omitted the need of children from section 14(1) of the said ordinance, for the reasons already hereinabeve mentioned, by me and as such one cannot read any additional words into section 14(1), as suggested by the learned counsel for- respondent, as it is a settled law, that the wisdom of the Legislature cannot be questioned, while interpreting various provisions of an enactment and specially in punitive or special provisions like section 14(1) nothing could be added, which has not been specifically mentioned, as special privilege has been given to specified persons mentioned in section 14, for their personal benefit only, in my ; opinion, in cases where personal need is not involved; the applicant's remedy has been provided under section 15(2)(viii), which safeguards the interest of the tenants of the premises generally, in normal circumstances. In view of this, in my opinion, the respondent's application under section 14(1), on the ground of need of her daughter is not legally maintainable and since this is a legal issue, the appellant has every right to raise the same before this Court, irrespective of the fact, whether this plea was taken in his written' statement or before the learned Rent Controller or not. In my unreported judgment hereinabove mentioned; no doubt, T have stated, that need of children is covered under section 14(1); but in the said case, this question was not in issue nor it was argued before me, as F. R. A. No. 443 of 1981 was disposed of by me in l1mine, by making passing reference to this question and not after full-fledged arguments on this point, as it has been done in this case, on the basis of which I have given my above finding.
14. The third contention that has been raised by the learned counsel for the appellant was, that notice given under section 14 by the respondent was a invalid notice, as the period given in the said notice for vacation of the premises by the appellant, was not in accordance with the period men-- tioned in section 14. I see no force in this contention of the learned counsel. In my opinion, section 14 is a special section made for the benefit of widows and/or persons who have attained the age of 60 years and mere technicalities cannot be allowed to frustrate the object of section 14. In my opinion, if the provision of section 1.4 in respect of the notice are substantially complied with the technicalities on which the learned counsel fur the appellant has tried to rely cannot be permitted to frustrate the provisions of section 14. This view of mine is supported by the case of Wali Mohammad v. Mrs. Hamida PLD 1981 Kar. 794with which I am in full agreement, for the reasons given .By the learned Single Judge in the said judgment.
15. Therefore, in view of my above conclusions, that the respondent's ejectment application was filed after 25th October, 1979 more than 6 months, after she had attained the age of 60 years and as such it was barred under section 14 as it then existed and in view of my finding, that section 14(1) of the Sind Rented Premises Ordinance, 1979, does not apply to the cases, where the need of the children is involved, I allow the above appeal and set aside the impugned order dated 5th February, 1980, of the learned SIXth Senior Civil Judge and Rent Controller, Karachi, and dismiss the respondent's Ejectment Application No. 742 of 1980 on above grounds only. However, in view of the facts and circumstances of the case, as important law points were involved, I would pass no orders as to costs. s. A. H.Appeal allowed.