1. ' This first rent appeal calls in question the order, passed by the Sixth Senior Civil Judge and Rent Controller, Karachi, dated 31-3-1985, directing the appellant to vacate the premises in question within two months from the date of the order and put the respondent in vacant possession of the same.
2. ' The brief facts giving rise to this appeal are that in October, 1983 the respondent filed an ejectment application against the appellant under section 14 of the Sind Rented Premises Ordinance, 1979 (hereinafter referred to as "the Ordinance") in respect of a shop situated in Commercial Area, Liaquatabad, Karachi, inter alia, averring that he had attained the age of sixty years and required the premises for his personal use.
3. ' The appellant filed written-statement wherein it was disputed that the respondent had actually attained the age of sixty years. It was also disputed that the premises in question were required by the respondent for his personal use as according to the appellant the respondent had been doing the business of bone setter with his son Sardar Hussain for several years prior to the filing of the ejectment application. The appellant also disputed the existence of the relationship of landlord and tenant between the parties as according to him the premises had been rented by the appellant from Sardar Hussain, the son of the respondent but not the respondent himself.
4. ' The learned Rent Controller after recording the evidence in the case decided the case in favour of the respondent by ordering ejectment of the appellant as aforesaid.
5. ' I have heard Mr. Shahanshah Hussain, learned counsel for the appellant and Mr. Muhammad Ikram Siddiqui, learned counsel for the respondent.
6. ' Mr. Shahanshah Hussain has raised the following contentions before this Court. Firstly, according to him, the respondent had failed to conclusively establish that he was 60 years of age and, therefore, he was not entitled to an order in his favour. The next argument of the learned counsel, which was in the alternative, was, that by use of the words "has attained the age of 60 years", the Legislature intended to give prospective operation to the provisions of section 14 of the Ordinance relating to ejectment of the tenant on the ground of age, and since the respondent, according to his own admission, had already attained the age of 60 years prior to the coming into force of section 14 of the Ordinance, his ejectment application before the learned Controller was not maintainable. Lastly it was argued that no relationship_ of landlord and tenant existed between the parties.
7. ' The contention of Mr. Muhammad Ikram Siddiqui, on the other hand, was that the plea in respect of the respondent's age was belatedly taken by the appellant at the time of his giving evidence. As regards the prospective nature of section 14, it was contended by Mr. Siddiqui, that not only the plea was raised for the first time before this Court, but it was never the case of the ,appellant that the respondent had attained the age of 60 years prior to the coming into force of section 14 of the said Ordinance.
8. ' As far as the first plea to Mr. Shahanshah Hussain is concerned, it cannot be denied that burden of proof to establish that thehad attained the age of 60 years was wholly on the landlord. The respondent had, therefore, to establish the factum of age by definite and reliable evidence and failure on his part to do so would not make the tenant liable for ejectment. Now, looking at the evidence adduced by there respondent in this behalf, although in para. 6 of his affidavit,the respondent has stated that he had attained the age of 60 years,but at the same time he has failed to produce any evidence in respect of his date of birth. The respondent has produced a photo copy of identity card, which appears to have been obtained by him in 1974 wherein his age was shown to be 55 years, but in the cross-examination the respondent admits that he did not remember the year of his birth. He has further stated that he might have been seventy-four years old. This evidence, in my opinion, by no means can be conclusive in respect of his age. No doubt, the respondent in his identity card has mentioned his age as 55 years in 1974, but one cannot be oblivious of the fact that the respondent according to his own admissions in the cross examination, was not definite about his date of birth or even about his approximate age. It is, therefore, far from safe to rely upon such evidence. The learned Rent Controller, it seems, has relied upon the evidence of identity card of the respondent for the purpose of proof in respect of his age, but in my view, even the identity card was not reliable as only such age could have been mentioned on the identity card as had been given by the respondent himself. I, therefore, do not agree with the finding of the learned Rent Controller on the point of age and the said finding is, therefore, reversed.
9. ' Turning to the next argument pressed by Mr. Shahanshah Hussain, it has been argued by Mr. Shahanshah Hussain that according to the respondent's own admission in his cross-examination, he was about 74 years of age in 1984 which clearly establishes that the respondent had become about 60 years of age in 1979 when section 14 of the Ordinance came into force. According to the learned counsel the use of the words "have attained the age of 60 years" in section 14 of the Ordinance means that no retrospective operation could be given to the said section. Reliance has been placed on Stroud's Judicial Dictionary, where in the second volume of fourth edition at page 1214, the words "have been obtained" have been construed as "shall have obtained". Reliance has also been placed on (1898) 2 Q B D 547 wherein the words "where a debt has been proved" were construed to mean as "where a debt shall have been proved". The next case referred to was Carson v. Carson and Stoyek (1964) 1 Weekly Law Reprots 511) wherein according to the view taken by Scarman, J, where the words "adultery which has been condoned" appearing in section 3 of the Matrimonial Causes Act, 1963 are capable of either retrospective or prospective interpretation, they ought to be construed as prospective only. However in the Income-tax Officer (Investigation) Circle I, Dacca and another v. Sulaiman Bhai Jiwa PLD 1970 SC 80, the words "has been" used in section 34 (2-D) of the Income-tax Act, 1922 were construed to denote retrospectivity.
10. ' The argument of Mr. Shahanshah Hussain although, on first impression appears to be attractive, but the same cannot be accepted for three reasons. Firstly, because the argument has been raised before this Court for the first time and secondly, because it was not the case of the appellant that the respondent had already attained the age of 6 years even prior to the filing of the ejectment application. On the contrary the case pleaded by the appellant was that the respondent had not attained the age of 60 years as claimed by him. Therefore, the learned counsel cannot be allowed to raise this new plea at this stage, which had not been taken by the appellant before the learned Controller. Apart from that, the words "has attained the age, of 60 years" appearing in section 14 of the Ordinance clearly denote retrospectively as ha been held by the Supreme Court in the Income- tax Officer (Investigation) Circle I, Dacca and another v. Sulleman Bhai jiwa case, to which I have just referred. The contention raised by I&1 Shahanshah Hussain has, therefore, no force.
11. ' Turning to the last contention of Mr. Shahanshah Hussain, the same also appears to carry very little force as I find no material evidence to support the plea that relationship of landlord and tenant did not exist between the parties. Reference in this respect can aptl be made to the tenancy agreement (Exh. 9) which established that such relationship did exist between the parties.
12. Although it was denied by the appellant in his affidavit that the respondent was the owner o the rented premises or that 'rent in respect of the premises was being realised by him, but no other substanial evidence seems to have been adduced by the appellant in this respect therefore, the learned Rent Controller has rightly discarded the plea taken by the appellant. In any case the definition of "landlord" in. The Ordinance clinches the issue in favour of the respondent.
13. ' However, since it has been already held that the respondent has failed to prove conclusively that his age was 60 years at the time of filing of the ejectment application, the case of the respondent cannot fall within the purview of section 14 of the Ordinance and since ejectment of the appellant was sought only on the ground of age, this appeal is allowed and the impugned order is set aside.
14. There will, however, be no order as to costs.