1. ' This appeal under section 21 of the Sind Rented Premises Ordinance, (XVII of 1979) has been filed by the appellant against the order of 4th Senior Civil Judge and Rent Controller, Karachi, passed in Rent Case No, 7303/80 rejecting the application of the appellant filed under section 14 of the Ordinance.
2. ' The appellant instituted the Rent case under section 14 of the Ordinance on the grounds that he had retired from the Government service in the year 1970 and that he is over 60 years of age. The application was contested by the respondent on the pleas that the appellant was not 60 years of age and that the application was not a bona fide one. The Rent Controller after recording evidence of the parties came to the conclusion that the appellant failed to prove by any documentary evidence that he was 681. Years of age. He also found that the appellant did not succeed in proving that he retired from the service. The appellant alongwith rent application had produced the original order of retirement from service as Annexure 'D' in support of his assertion that he retired from the service. He also produced a photostat copy of his national identity card as Annexure `E,' to show his date of birth. The Gazette Notification dated 1st August, 1969 in which the applicant was shown to have retired from Government service was attempted to be produced by the appellant in the cross-examination of respondent but is was disallowed by the Rent Controller. However, the plea of retirement taken by the appellant in his application loses its significance as after retirement from Government service the applicant is admittedly serving as Director, Finance with the Defence Housing Society, since March, 1979 and is still in the service. Therefore, in my humble view the applicant cannot avail of the benefit of section 14 of the Ordinance in these circumstances on the plea of retirement from service. However, on the ground that the applicant is over 60 years of age he is entitled to succeed. The Rent Controller rejected the application of appellant on this plea on the ground that be had failed to produce any documentary evidence to prove that he was more than 60 years of age. This conclusion of Rent Controller is not correct. I have gone through the evidence recorded in the case. The appellant/applicant in his statement on oath recorded before the Controller categorically stated that he retired from service in the year 1970 and that he is 68i years of age. This statement of the appellant was not at all challenged in the cross-examination.
3. The photostat copy of the national identity card and the passport issued to the appellant which were filed before the Rent Controller but were not allowed to be produced in evidence also show that he was born in the year 1912. The genuineness of these documents were neither challenged before the Rent Controller nor they are challenged before me. .Be that as it may, the fact he was 68 years of age was not at all challenged by the respondent and therefore in these circumstances the non-production of documentary evidence in support of the assertion of appellant that he was 68i years of age was of no significance at all. The statement on oath of appellant that he was 68i years of age, in the absence of cross-examination shall be deemed to have been admitted by the respondent and no further burden of proof in this regard lay on the appellant. 1 therefore hold that the appellant succeeded in proving his age as 68i years. Mr. Khuda Bux Omrani, the learned counsel for the respondent contended that in view of special nature of the proceedings contemplated under section 14 of the Ordinance it was necessary for the appellant to have produced some documentary evidence to establish his contention that he was over 60 years of age on that date when he filed the application. I am unable to accept this contention. In the first place I find that the Rent Controller acted improperly in exercise of his discretion in refusing to allow the appellant to produce the gazette notification, the identity card and the passport in evidence which were offered before the evidence in the case was finally closed. The genuineness of these documents was not disputed before the Controller and copies. Thereof were already filed alongwith the ejectment application and before the evidence in the case started. Secondly the nature of proceedings has no bearing on the mode of proof of a fact in the proceedings. Mr. Umrani the learned counsel for the respondent lastly contended that the application under section 14 of the Ordinance filed by B the appellant was not maintainable in law as this provision of law as it originally stood debarred a person who had attained the age of 60 years and a period of more than six months had passed since his attaining that age, from filing an application under. Section 14 of the Ordinance. The learned counsel for the appellant opposed consideration of this contention of respondent's counsel on the ground that it was not raised before the Court of first instance. Although from the order of Rent Controller it does not appear that this contention was raised by the respondent but since the respondent succeeded before that Court and the contention raised by the learned counsel for the respondent is a pure question of law, I allow it to be raised in this appeal. In order to appreciate the contention of Mr. Khuda Bux Umrani, it is necessary to examine here the original section 14 as it stood in Ordinance XVII of 1979 and the subsequent amendments made therein. The original section 14 of the Ordinance was 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 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 earlier than two months from the receipt thereof : ' 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.
(2) .
4. (3)
(4) . . ..
5. ' By amending Ordinance XII of 1980 the proviso to subsection (1) of section 14 of the Ordinance was omitted and in its place the following proviso was substituted :- "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, as the case may be, has become widow or orphan.
6. (2)
(3) Of ' Mr. Umrani contends that since the original section 14 of the Ordinance did not make it permissible for the appellant to apply under that section, the subsequent omission of the provision could not make that right available to him. According to learned counsel the amendment should be deemed to be prospective in operation and apply only to those cases which arise after the enforcement of the orignial Ordinance. I am unable to accept the contention of the learned counsel. A closer look on the provision of subsection (1) of section 14 of the Ordinance will show that a right was given to a landlord who is a widow, a minor orphan, a salaried employee due to retired within next six months or has retired or a person due to attain the age of 60 within next six months or has attained the age of sixty, to apply under section 14 of the Ordinance for eviction of his tenant ; but this right was curtailed by insertion of the proviso which provided that if the period of six months has passed since the landlord had become widow, orphan, or retired from service or attained the age of sixty ).Ears, then he could not avail of the provision of section 14 of the Act. The Legislature however subsequently omitted this proviso and in its place substituted the present proviso which provides that the landlord could not apply under section 14 of the Ordinance if after retirement from service or after attaining the age of sixty or after becoming the widow or an orphan as the case may be he has rented out the building. The clear effect of substitution of the new proviso to subsection (1) of section 14 of the Ordinance in place of the old proviso, in my opinion, is that the embargo put by the old proviso on the right of a landlord which was otherwise available to him under the main section was removed and he became entitled to exercise that right subject only to those conditions which are now laid down in the newly-added proviso. There is nothing either in the Amending Ordinance XII of 1980 or in the language of newly-added proviso to indicate that the limitation placed on the right of a landlord under the old proviso to section 14(1) of of the Ordinance, continued to remain operative in spite of its omission from' the statute and substitution by a new proviso in its place. 1 am clearly of the view that after omission of old proviso to section 14(l) of the E Ordinance, the landlord who otherwise fulfilled the conditions mentioned in the main section is entitled to have resort to the remedy provided therein subject of course only to such other limitation as are now imposed by the newly-added proviso to section 14(1) of the Ordinance. I therefore reject the contention of the learned counsel for the appellant that the application filed by the appellant under section 14 of the Ordinance was not maintainable. No other point is raised. The appeal is accordingly accepted partly on the ground that the appellant is over 60 years of age and is entitled to get possession of the house. However, in the circumstances of the case there will be no order as to costs. Mr. Umrani in the end submitted that his client would like to file an appeal before the Supreme Court against this order. I therefore order that the respondent will not be dispossessed from the premises for a period of four months.