' This an appeal filed against the order' of the learned Rent Controller, Karachi dated 13-9-1983 whereby he ordered eviction of the appellant and had given him 119 days time to hand over the vacant possession of the premises to the landlord/Respondent.
2. The brief facts are that the respondent is the landlord and owner of Bungalow No,167/B, Block 3, Khalid Bin Wand Road, P.E.C.H.S. Karachi-29 and the same was given on monthly rent on 1-7-1973 to the appellant. The respondent was employed as Collector of Customs and Central Excise and attained the age of superannuation of 58 years and subsequently retired from Government service as Collector of Customs with effect from 5-6-1974. He got enrolled as an Advocate of the High Court on 12-12-1975. Thereafter the respondent attained the age of 60 years on 5-6-1976 as he was born on 5-6-1916 (Matriculation Certificate's copy attached). The respondent requested the appellant to vacate the premises in question but he did not do so. Then there was litigation between the parties and an ejectment application was filed but subsequently withdrawn in order to avail of the expeditious remedy provided under Martial Law Order No,20 but as the Martial Law Authorities gave an undertaking to the High Court not to proceed with the pending cases, the application became infructuous. Thereafter second Rent Application was filed being R.A.
No,2869/79 under section 13 of the Sind Urban Rent Restriction Ordinance,, 1959. Then on 8-10-1981 a statutory notice under section 14(1) of the Sind Rented Premises Ordinance, 1979 was served as Registered A.D. and the same notice was replied on 16-11-1981 by the appellant who threatened the respondent with legal action. Then again on 15-3-1982 in order to dispel the misconception and false allegation of the appellant, the respondent sent another letter by Registered A.D. to the appellant. Thereafter consequently the rent application under section 14(3) was made to the Rent Controller for summary ordeRs,
3. The written statement was filed by the appellant on 8-2-1983. The appellant's case in the written statement was that the respondent was in occupation and owner of first floor of J.M.872, S.M. Saeed Road, Karachi and hence he cannot move an application under section 14 of the Sind Rented Premises Ordinance, 1979. He has pleaded that this is not a case in which he could be evicted summarily.
4. The Rent Controller on the basis of the pleadings of the parties framed following five issues:-
(1) Whether the applicant has been retired from Government service as he attained the age of sixty years ?
(2) Whether the opponent was served with' statutory notice of two months?
(3) Whether the applicant has rented out the bungalow after he has been retired on attaining the age of sixty years?
(4) Whether the applicant is in occupation of the building owned by him in the locality?
(5) What should the order be? Issue No,1: ' The age of retirement from Government service is 58 years and by notification dated 3rd June, 1974 the respondent stands retired on 5-6-1974 as his date of birth is 5 6 1916 lib per Matriculation Certificate produced by him. He attained the age of 60 years on 5-6-1976. At any rate in the year 1975 he was 60 years of age and he retired from the service in the month of June, 1974. This issue is not contested. Issue No,2: ' On 8-10-1981 he sent a statutory notice as required under section 14 of the Sind Rented Premises Ordinance, 1979 which is replied by the appellant on 16-11-1981. The text of reply of the notice is threatening in the sense that the notice given to the appellant by the respondent was frivolous and for that he is liable to damages. Section 14(1) of the Sind Rented Premises Ordinance, 1979 has been complied with by the respondent. The notice dated 8-10-1981 is a statutory notice. By the time he issued the notice the landlord had not only attained the age of 60 years but he had also retired from the service. In other words by that time he was a retired person as well as had attained the age of 60 _yeaRs, Issue No,3: ' The disputed premises was obviously and admittedly rented out in 1973 and the respondent/landlord attained the age of 60 years in 1976 and had retired from the service earlier in the month of June, 1974. It is, therefore, proved that the premises in question was not rented out after the retirement or attaining the age of 60 years by the respondent. Issue No,4: ' This issue is the most important and it requires thorough examina tion. The Respondent Ch. Abdul Aziz in his affidavit-in-evidence has stated that he is residing as a lodger with his relative in Bungalow No,165-B, Block 3, Off Sir Syed Road, P.E.C.H.S. Karachi-29 for a couple of yeaRs, That it is not a fact that he owned or occupied the premises No,J.M, 872, S.M.Sayeed, Road, Karachi-5. That the premises No,J.M, 872 were sub juice with the Supreme Court of Pakistan in a Civil Appeal bearing No, K-59/1979 and the Supreme Court has reserved the orders and judgment in the said appeal on 27-5-1981. It appears that the respondent is not residing in the premises which are under dispute and under litigation and in which the judgment is reserved by the Supreme Court. The respondent is 'copiously and thoroughly cross-examined. What is proved by the respondent/landlord is that he was not residing in the house owned by him but he was residing in the house of one of his relatives as a lodger. The question of ownership is pending before the Supreme Court. He is supported by his witnesses namely Lt.-Col. (Retd.). Said Ahmed, Syed Rashid Ahmed, Muhammad Hanif Abbasi, Inamul Haq, J.M. Hayat Qureshi and Pirzada Muhammad Abbasi in their respective affidavits and in their cross-examination. All the witnesses have supported the respondent in respect of his residing in the house of his relative as a lodger and in respect of the house which is under dispute and pending before the Supreme Court. The appellant in his evidence has her the same that he was residing in House No,J.M, 872, S.M. Saeed Road, Karachi. This is the evidence so far brought by the parties and there is no doubt in my mind that the respondent has amply proved his case. It is said to note that the appellant has on one ground or the other resisted the rent application of the respondent. Already one rent application under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 is before a Rent Controller. The cause of action did accrue to the respondent after the promulgation of the Sind Rented Premises Ordinance, 1979 and there was no harm that he invoked for his relief under that Ordinance.
' In the result I find no merits in the appeal and accordingly dismiss the same. However two months' time is given to the appellant for the vacant and peaceful delivery of the possession of the disputed premises to the respondent/landlord.