SHAFIUR RAHMAN, J: -- These two appeals of a landlady by leave of the Court have come up to examine the following questions of law arising out of the petitions for leave to appeal and during the course of the hearing of the appeals:---
(1) Whether the High Court had correctly held that the predecessor-in-interest of the appellants failed to prove that having attained the age of sixty years, she was entitled to invoke section 14 of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance)?
(2) Whether an application under section 14 of the Ordinance by a widow for use of the demised premises for her children is maintainable?
(3) Whether right to sue survives after her death during the proceedings?
2. On 5-12-1981, the appellants' predecessor filed two separate applications for eviction of the tenants in both invoking section 14 of the Ordinance. In Rent Application/Rent Case No.5330 of 1981 leading to the present Appeal No.64-K of 1986, Shop No.2 in the building standing on Plot No.568-C, Central Commercial Area, Block-II, P.E.C.H. Society, Karachi was the subject-matter in the tenancy of Dr. Roshan Nanji. In the other Rent Case (No.5331 of 1981), Shop No.1 in the same building in the tenancy of Mr. Abdul Razzak was the subject-matter of eviction. In both the applications in para.2, she took up the ground as hereunder:-- "That the applicant has recently attained the age of 60 years. Photostat copy of the applicant's National Identity Card. Issued on 27-5-1974 is attached herewith."
The National Identity Card that was filed showed her age as 53 years, the date of application for the issuance of card as 19-1-1974 and the date of its issuance as 27-5-1974.
3. In reply to this claim the contents of paragraph 2 of- the application for ejectment were denied by both the tenants. Dr. Roshan H. Nanji (respondent in Civil Appeal No.64-K of 1986) did not in the reply say anything more but Abdul Razzak (respondent in Civil Appeal G5-K of 1986) stated that `the identity card has been maneuvered by the applicant and it does not give correct date of birth of the applicant'. The son and attorney of the applicant/landlady appeared and stated that she (his mother) was 61 years on 10-3-1982. In reply, in his affidavit, Dr. Roshan Nanji stated `that the applicant has already attained the age of 61 years'. Again in para. 11 of his affidavit he stated as hereunder:-- "That Mr. Hilaluddin the son of the applicant is of the age of 36 years and M.Sc. It is strange to know that he is still unsettled in his life and the applicant, now after attaining the age of 61 has the intention to settle him adequately in life."
He also admitted in cross-examination as hereunder:-- "I see Exh. III and say that I reply the Exh.O./1 by this letter of mine. It is correct to suggest that I have not denied and disputed the plea of attaining 60 years of age by the applicant in my Exh.III and written statement."
4. In the other application for eviction of respondent in Civil Appeal No.65-K of 1986, the attorney of Abdul Razzak/Respondent/opponent in his affidavit stated as hereunder:-- "That the age of the applicant at present is not less than 75 years. The age mentioned in the National Identity Card is fictitious and incorrect. It is denied that the applicant is aged 61 years as alleged."
In cross-examination, he-admitted as hereunder:-- "I do not possess any documentary proof in support of my statement that the applicant is of 75 years and more than that and not of 60 years. I cannot say if the National Identity Card' of the applicant has not been cancelled till today."
5. The Rent Controller framed the following issues in the cases:-- "(1) Whether the .Application is not maintainable under section 14 of the Sindh Rented Premises Ordinance, 1979?
(2) Whether the applicant requires the shop for the use of her son Hilaluddin?
(3) What should be the orders?"
The Rent Controller decided both the issues in favour of the landlady and directed the ejectment of the tenants. '
6. The High Court first of all held that the appellants' predecessor-in-interest had failed to establish from the material on record that she had attained the age of sixty years and she was entitled to invoke section 14 of the Ordinance, by observing as hereunder:-- "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."
The learned Judge in the High Court also went on to examine the bona rides of the requirement of the son of landlady for the two shops and found it not established. Hence, the relief was denied to her and both the Rent Appeals were allowed.
7. Mr. Mansoorul Arfin, Advocate, the learned counsel for the appellants contended that the probative value of the National Identity Card has been recognised in Syed Akhtar Hussain Zaidi v.
Muhammad Yaqinuddin 1988 SCMR 753 in the rent control matters for purposes of section 14 of the Ordinance. The law laid down therein should have been followed. It has further been urged by him that in an application under section 14 of the Ordinance, the element of good faith should not have been examined and made the criteria and for this reliance was placed on the decision of this Court in Bakhsh Elahi v. Qazi Wasif Ali 1985 SCMR 291. Besides, according to him, `personal use' as defined in section 2(g) of the Ordinance fully covered the cases of the appellants. It was also contended that the death of the landlady, after an eviction order had been passed by the Rent Controller, could not frustrate the order of eviction and this principle found recognition by this Court in Haji Ibrahim v. S. Rehmatullah (represented by Legal Heirs) 1985 SCMR 241.
8. The learned counsel for the respondents/tenants, contended that the expression `personal use' as mentioned in section 14 of the Ordinance had to be given meaning different from the definition contained in section 2(g) of the Ordinance, because otherwise the Scheme of section 14 itself gets disturbed and incongruity results in applying it. The learned Counsel has relied on decisions of this Court in It.-Col. Nawabzada Muhammad Amir Khan v. The Controller of Estate Duty and others PLD 1961 SC 119, Pakistan Tobacco Company Ltd. v. Pakistan Tobacco Company Employees' Union, Dacca and others PLD 1961 SC 403 and Iftikhar Ahmad and others v. President, National Bank of Pakistan and others PLD 1988 SC 53 in support of the proposition that a departure from the definition is permissible where the context so requires. He also contended that at no stage had the predecessor-in-interest of the appellants declared that she was not possessed of the property or was not in occupation of the property other than the one she was seeking eviction from. Without a declaration to that effect, the foundational requirement for seeking eviction of the tenants remained unsatisfied. Further, it was contended that two different shops, subject-matter of different tenancies, could not be got vacated by recourse to section 14 and the choice at this stage cannot be left to the landlady/her successors, to the detriment of the tenants. Finally it was contended that the proviso introduced by Sindh Rented Premises IInd Amendment) Ordinance, 1980 dated 1-9-1930 will also apply because it was after becoming a widow that she had let out this property. In other words, the contention is that the act of letting out of the property after becoming a widow prevents her from availing of the right on attaining the age of sixty years as well because the proviso applies not to any particular category but to all the different types of right-holders taken as one category.
9. So far as the question of the landlady's attaining the age of sixty years and to be entitled on that account to avail of the remedy under section 14 of the Ordinance is concerned we find that the finding of the Rent Controller is positive and in the affirmative. It is based on the-entries in the National Identity Card and the other material brought on record. The probative value of the National Identity Card has been recognised by this Court. The entries therein were made, no doubt, at the instance of the landlady herself but at a time when the law granting any such benefits was not in existence, was not in anticipation either, and when there was no such controversy which could have prompted her to give an incorrect age. Besides, she was under a statutory duty under the National Registration Act, 1173 (Act LVI of 1973) to declare on affidavits her date of birth or age and the Registrar-General was empowered to satisfy himself about the truth of the information, under section 9 of the Act. The Act also makes penal by clause (b) of section 11 making of any statement or furnishing of any information which is known as is reasonably believed to be false in material particulars. In such background, the entries of the National Identity Card shall hold the field unless they are rebutted by an equally good or better evidence. In this case such evidence was altogether lacking.
10. As regards the contention of the learned counsel for the respondents that under the proviso to section 14 all the persons entitled under section 14 should be treated as one category and disqualification under one should entail the disentitlement under another, is in violation of the language of the proviso where the expression `as the case may be' has been used making the categories distributive and not combined into one. Disqualification in one capacity will not entail disqualification for all time and for availing of the right becoming available under a different category.
11. As regards the bona fides of the use of the son, in view of our decision in the case of Bakhsh Elahi 1985 SCMR 291 that could not have been made the basis for a decision against the landlady, if otherwise the requirements of section 14 of the Ordinance were found satisfied.
12. The contention of the learned counsel for the respondents that the definition of `personal use' should be given a meaning different from the defined meaning, cannot prevail because the anamolies pointed out by him are of inter category and not intra category as described in section 14 of the Ordinance and we have already held that each category is to be taken as independent and not thrown or matched against the other. If we treat the enumerated category as distributive and independent, then such comparison for showing anamolies would I be impermissible, and no such anamolies are found within the category.
13. As regards the relief, we find that where two separate tenancies are involved, both of the same character i.e., residential or commercial, they cannot be got vacated by course to section 14 because a restricted right has been made available to a special category for a purpose. We find that in no other case referred to us, a right to get two such premises forming different tenancies, was ever recognised in proceedings under section 14 of the Ordinance. The case to which we are referred namely, Muhammad v. Dilawar Khan Durrani and Dilawar Khan Durrani v. Muhammad Civil Appeals Nos. 112-K and 113-K of 1987, three shops were got vacated but they formed the subject- matter of one tenancy and not separate. Similarly, in Bakar- v. Mst. Khatoon Hajin Kala alias Kala Begum C.P.LA. No.266-K of 1987 the tenancy was one and the shop had an internal partition so as to utilise it as two. In Mst. Khurshid Azmat Ali v. A.S. Mughal and Ayub Sultan, respectively/Civil Appeals Nos.9-K and 10-K of 1982 two flats had been got vacated by recourse to section 14 but an objection on this ground was not taken nor decided.
14. Finding that the appellants were entitled to get only one shop vacated, we would allow the appeal relatable to Rent Control Petition No.5330 of 1981 in possession of Dr. Roshan H. Nanji i.e. Civil Appeal No.64-K of 1986, which happens to be in point of time according to serial number, an earlier instituted petition, thereby exhausting the right claimable under section 14 of the Ordinance, making it in exercisable in respect- of the other shop. In the circumstances, Civil Appeal No.64-K of 1986 is allowed. The judgment of the High Court is set aside and that of the Rent Controller restored.
The other appeal (Civil Appeal No. 65-K of 1986) in the circumstances of the case, stands dismissed. This judgment is without prejudice to the other proceedings that have been taking place between the parties.
15. No order is made as to costs.