1. ' These two first rent Appeals Nos. 802 of 1983 and No, 805 of 1983 have been filed under section 21 of the Sind Rented Premises Ordinance, 1979, against the orders, dated 24th October, 1983 passed by the Hand Senior Civil Judge and Rent Controller, Karachi whereby he allowed the ejectment application of the respondent. He has ordered the appellants to hand over the vacant possession of the shops to respondent at once.
2. ' This common judgment will dispose of both the appeals as common questions of law and facts are involved.
3. ' The relevant facts of the case are that Mst. Razia Khatoon, widow (hereinafter referred as respondent) is the landlady of two shops bearing Nos. 1 and 2 on Plot No, 568-C, Central Commercial Area, Block-II P.E.C.H.S., Karachi. Appellant Roshan Nanji is her tenant of shop No, 2 at the monthly rent of Rs, 210 per month when appellant Abdul Razak is a tenant of shop No, 1 at the monthly rent of Rs, 250 per month. Respondent filed two Rent Cases bearing No, 5330/1981 and No, 5331/1981 on 5th December, 1981 against the appellants on the ground of personal bona fide requirement. The case of respondent is that she attained the age of 60 years and wants both the shops for her son Hilaluddin who will start business of medical-cum-general store. The written statements were filed by the appellants wherein they denied the allegations made by the respondent. They have stated in their written statements that she had rented these shops to them after attaining the age of 60 years, therefore, she cannot avail the benefits as provided under section 14 of Sind Rented Premises Ordinance (hereinafter referred as Ordinance). On the pleading of both the parties the learned Rent Controller framed the following issues :-
(1) Whether the applications are not maintainable under section 14 of Ordinance ?
(2) Whether the respondent requires the shops for use of her son ?
4. ' The findings of Rent Controller on both the issues are in favour of the respondent. Therefore, he ordered the appellant to vacate the shops in question at once. On behalf of the appellant Abdul Razak (in Appeal No, 805/1983) Muhammad Hayat Exh. 2 and Mst. Zeba Exh. 6 were examined. The appellant Roshan Nanji (in Appeal No, 802/1983) examined himself and one Muhammad Fahim. On the other hand from the respondent side her son Hilaluddin who is also attorney of the respondent, has been examined separately in both the appeals.
5. ' I have heard the learned counsel of the parties at length. Learned counsel for the appellants submitted that applications under section 14 of the Ordinance are not maintainable, on two grounds (i) that respondent had rented the premises after she attained the age of 60 years ; (ii) requirement of premises for her son do not fall under the provisions of section 14 of the Ordinance and also bona fide requirement on the basis of the evidence led on her behalf have not been proved. The respondent in a rent application filed on 5th December, 1981 mentioned that she had recently attained the age of 60 years and in support of her contention she relied upon her National Identity Card issued on 27th May, 1975. Her attorney Hilaluddin in his evidence stated, that she is about 61 years of age and he produced the photo copy of her National Identity Card which has been accepted in both the cases. The Rent Controller relying on the Identity Card decided this issue in favour of respondent and overruled the objection of the appellants about the genuineness of the Identity Card. On the other hand the appellants in their written statement have stated that Identity Card has been manoeuvred and challenged the date of birth of the respondent. They have also suggested in their cross-examination to Hilaluddin that age of her mother is more than 70 years.
6. The respondent was not examined before the Rent Controller. Her son Hilaluddin has stated before the Rent Controller that his mother cannot come in the Court as she is ill and Pardah nasheen lady of 61 years. On this point respondent has not produced any other documentary evidence in support of her age except National Identity Card. The learned Rent Controller on the basis of Identity Card has observed in his order as under : - "The appellant produced her Identity Card issued on 27th May, 1974 showing the year of her date of birth as 1921."
7. ' From the perusal of the card it appears that in the column of Identity Card at place date of birth only the words "53 years" are mentioned.
8. The Rent Controller has probably arithmetically calculated and shown the year of birth of the respondent in his order. In these circumstances where there are conflicting arguments it is incumbent upon the respondent to prove her age and produce satisfactory evidence then only she can avail A benefits of section 14 of the Ordinance. Under these circumstances she must have examined herself before the Rem Controller. The reasons for not examining her that she is an old sick and pardahnasheen lady, can easily be ignored on the ground that evidence of respondent could have been produced by filing an affidavit as contemplated under section 19(4) of the- Ordinance. Moreover, in the Ordinance though provisions of Civil Procedure Code are not applicable but specific provision has been made under section 20 of the Ordinance by which powers of a civil Court under the Code of Civil Procedure, 1908, in respect of the matters relating to issue commission for examination of witnesses, documents etc. Have been B made. Even then the respondent was not examined on commission, therefore, respondent has failed to prove this issue and she is not entitled to avail the benefits of this section 14 of the Ordinance without proving the necessary requirement of the section 14 of the Ordinance. However, Mr. Jamil learned counsel for respondent submitted that she may be examined in this Court and he wants to produce her but this verbal request was rejected as no such regular application was filed.
9. ' The second contention of the respondent is that she needs the premises fer her son. In this regard the respondent has stated in the rent application that she has several sons and daughters who are well-settled, except her son Hilaluddin, who is M. Sc. And wants to start business of medical-cum- general store in the premises occupied by both the appellants against whom she has filed rent applications. Her contention is that both the shops will be utilized by her son by converting into a single unit. Before the Rent Controller her son Hilaluddin who is also attorney of the respondent, has stated that he has three brothers who are well-settled, and her mother requires these two shops for her use. Changing from his original Rent case and other evidence. He further stated that my mother has property in Ranchore Lane also and a rent case also been filed under section 14 of the Ordinance against the tenants of the flats situated in Ranchore Lane. He has also deposed that they are living in Saddar Bazar in a single room flat as a tenant of custodian but has denied the suggestion that the same fiat has been transferred in his name. He has stated that he is living on the first floor of the same building in which the shops are situated. But he has denied the suggestion of running business in the same flat. On realizing the consequences of the admission to be filed an application under section 21(3) of the Ordinance, on 21st December, 1983 by which be wanted to file some more documents. This application is placed on record. In this application it is also stated that the First Floor of the building is not being used for commercial purposes, but being used by son of the respondent. The fact that respondent wants to eject two tenants at a time and plea that both the shops to be converted into a single unit creates doubt in my mind about personal bona fide use by the son of the respondent. It has rightly been argued that for converting or making additions and alterations. It is also necessary for the respondent to take permission from the concerned authorities like K.D.A. And K.M.C. The respondent has failed to produces. Any document in this regard. Before the Rent Controller the respondent's Attorney has stated in Rent Case No, 5331/81 that he is living with her mother in the Saddar Bazar and in the same statement he has stated that he is living in the flat which is above the shops in question. From the perusal of the entire evidence it is clear that the evidence of Hilaluddin is contradictory and untrustworthy.
10. ' I am of the view that on the issue of personal bona fide requirement, the respondent has failed to prove the case. The learned Rent Controller has not applied his mind properly and did not fully discuss the evidence of the parties in his order.
11. ' The third point is that whether respondent can seek ejectment under section 14 of the Ordinance on the ground that premises are required for her son, needs consideration. It is contended by the learned Advocate for the appellants that application under section 14 of the Ordinance can only be made for 'personal use' and not for 'children'. On the other hand the learned counsel for the respondent argued that definition of personal use is given in section 2 (g) of the Ordinance which covers the requirements of her son, therefore, the application is proper. The counsel for the appellant has relied upon a case of A.S. Mughal v. Mst. Khurshid Azmat Ali (1). The respondent's Advocate has produced a copy of the Judgment of Appeal No, K-9/1982 of Supreme Court and contended that the Supreme Court has set aside the above-quoted Judgment of the High Court.
12. ' I have gone through the above cases. The High Court in above-reported case has held that application under section 14(1) on account of her need of her daughter is not legally maintainable.
13. The Hon'ble Judges of the Supreme Court in their judgment have not considered it necessary to go in details of personal requirement the relevant portion of the Judgment of the Supreme Court is reproduced below : "Paragraph 11. -The learned Rent Controller in his order has found that the premises in dispute and the adjoining premises in possession of Ayub Sultan comprised of only three rooms each. No issue, as is now under discussion, was specifically framed by the Rent Controller which shows that the question of non-maintainability of the application on the ground of requirement of the appellant's daughter was either not pressed or was given up.
14. ' Paragraph 12.-On looking into the application and the affidavit of the appellant, we are satisfied that the appellant had claimed the possession of the disputed tenement for herself also. The appellant being an old lady cannot be expected to live alone, and therefore, we find much force in the contention of the learned counsel for the appellant that the requirement of the appellant for the disputed tenement was also covered on the basis of her pleadings as also the evidence brought on the record."
15. ' The point of personal need was also an issue in the above case, therefore, their Lordship have allowed the appeal on the ground of her personal use. I do not like to discuss this legal issue regarding personal requirement as contemplated in section 14 of the Ordinance because as I have already stated in the order that none examination of landlady and unreliable evidence of her son- Hilaluddin, the bona fide requirement has not been proved. However, legal point can be agitated by the parties at proper time.
(1) PLD 1982 Kar. 406 The objection of appellant in Rent Case No, 5331/1981 about the service of notice is also material. It is contended that service was not effected as bailiff or postman were not examined. I see no force because the provisions in respect of notice are substantially complied with. Technicalities C cannot be permitted to frustrate the provisions of the Ordinance. My view get support by a case of Vali Muhammad v. Mst. Hamida (1), where it is held that spirit of law is to provide tenant two months time prior the order of his ejectment.
16. ' My attention has been drawn to the record and proceedings of R. C. No, 5330/1981 wherein respondent has filed application under section 151, C.P.C. Which reads as under :- "It is submitted that the case is not covered by section 14 of the Ordinance, the same may be treated and disposed of as one under section 15 of the said Ordinance."
17. ' This application was rejected by the Rent Controller.
18. ' From the perusal of the above application it shows that respondent afterwards realising the situation that her application may not be maintainable under section 14 of the Ordinance had filed this application and prayed that the rent application filed by her be treated under section 15 of the Ordinance. This also shows that she had tried to deviate from original case filed under section 14 of the Ordinance.
19. ' In view of the circumstances of the case I allow both the appeals and set aside the impugned orders, dated 24th October, 1983 of IInd Senior Civil Judge/Rent Controller, Karachi. Accordingly the Rent Applications of the respondent are dismissed with no orders as to costs.