' This appeal under section 21 of the Sindh Rented Premises Ordinance, 1979, is filed against the order dated 29-10-1990 passed by Ist Senior Civil Judge and Rent Controller (Central), Karachi, by which he directed the ejectment of the appellant from the disputed premises within a period of 60 days.
2. The respondent is the owner/landlady of the commercial premises bearing Nos.7 and 8 situated on the ground floor of a building standing on Plot No,5-A-4/43, Nazimabad, Karachi, which is in occupation of the appellant as tenant at a monthly rent of Rs,260. The tenancy is regulated by an agreement dated 1-2-1978. The respondent through a legal notice dated 2-8-1988 issued under section 14 of the Sindh Rented Premises Ordinance, 1979, demanded the vacant possession of disputed premises from the appellant on the ground that she has attained the age of 60 years and needed the aforesaid premises for her personal bona fide use. The appellant in reply to the aforesaid notice refuted the need of the respondent for her personal bona fide use, indicating the details of the properties and the business already owned by her. On 9-10-1988 the respondent filed an application under section 14 of the Sindh Rented Premises Ordinance, 1979, in the- Court of I- Senior Civil Judge and Rent Controller (Central) Karachi, seeking ejectment of the appellant on the aforesaid ground.
3. The appellant resisted his eviction on various grounds. He raised preliminary legal objections including the question of maintainability of the application under section 14 of the Sindh Rented Premises Ordinance, 1979. The appellant also particularly identified the other properties, both commercial as well as residential, in possession of the respondent. It was also pleaded by him that the possession of the disputed premises was obtained by him on payment of Pugree to the previous tenant with the tacit approval and undertaking of the respondent that she would not seek ejectment in consideration thereof. The age of the respondent was also questioned and it was stated that she was 58 years old at the time of filing of application for eviction.
4. The parties went to trial on the following issues:-
(1) Whether the application is not maintainable in law?
(2) Whether the applicant has crossed the age of 60 years and requires the demised shops for her personal use?
(3) Whether the applicant is in occupation of commercial premises owned by her in any locality?
(4) Whether the applicant has served the opponent with the notice under section 14 of the Sindh Rented Premises Ordinance, 1979?
(5) What should the order be?
5. The respondent did not appear herself to prosecute her eviction application and she appointed her son Muhammad Izhar Khan as her attorney, who filed his affidavit-in-evidence (P.W.1). In rebuttal the appellant filed his own affidavit-in-evidence (D.W.1) and also filed affidavits-in- evidence of Pervaiz Usmani (D.W.2), Shamshad Usmani (D.W.3), and Muhammad Jamil Shaikh (D.W.4).
6. On the assessm ent of evidence, both oral as well as documentary, the learned Rent controller decided all the issues against the appellant and consequently directed his eviction from the disputed premises within a period of 60 days. It is in these circumstances that the present appeal has been filed.
7. I have heard Mr. Ghulam Hussain Abbasi, learned counsel for the appellant and Mr. Muhammad Zubair Quraishy, learned counsel for the respondent. I have also gone through the record of this case carefully.
8. Section 14 of the Sindh Rented Premises Ordinance, 1979, where under the eviction of the appellant is sought, provides as follows:- "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 being earlier than two months from the receipt thereof: ' 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 or, as the case may be, has become widow or orphan.
(2) The landlord shall not be entitled to avail the benefit of subsection (1) if he is in occupation of a building owned by him in any locality.
(3) Where the tenant has failed to deliver the possession of the building under subsection (1), the Controller shall, on application by the landlord in this behalf, order eviction of the tenant from the building in a summary manner, by using such force as may be necessary."
9. Muhammad Izhar Khan, (P.W.1), who is son and attorney of respondent has testified that the respondent has attained/crossed the age 60 years and she needs the disputed premises for her personal bona fide use. He has produced the photocopy of the National Identity Card (ExA/3) to prove the date of birth of her mother as 20-9-1923, meaning thereby that she has crossed the age of 60 years at the time when the application for eviction was filed. The evidence of Muhammad Izhar Khan (P.W.1) further shows that he was looking after the affairs of her mother in respect of the disputed premises and was well conversant with the facts leading to this litigation. He has also produced the copy of notice dated 2-8-1988 (ExA/4), issued under section 14 of the Sindh Rented Premises Ordinance, 1979, by which the appellant was called upon to vacate the disputed premises within a period of two months. The evidence of Muhammad Izhar Khan (P.W-1) has been assailed by the learned counsel for the appellant, mainly on the ground that the respondent did not appear in witness-box and submit herself to the cross-examination for the reason that she wanted to avoid being confronted with the fact of owning, possessing and managing the property and business etc. It may be noted that women-folk of our country normally entrust the job of managing their properties to their husbands or other male members of the family and they do not appear in Court because of custom and orthodox thinking. Muhammad Izhar Khan (P.W.1) has stated on oath that he was managing the affairs of the property owned by her mother and was in a position to testify on her behalf. There was, therefore, nothing unusual when Muhammad Izhar Khan (P.W.1) appeared on behalf of his mother and testified that she has crossed the age of 60 years and she requires the premises for her personal bona fide use. I am fortified in my view by the case of Muhammad All v. Mst. Hameeda Begum, reported in 1983 CLC. 3237, wherein it was observed that no prejudice was caused to tenant by non-appearance of the landlady in Court.
10. It is also contended on behalf of appellant that the respondent was not 60 years old when she had filed the application under section 14 of the Sindh Rented Premises Ordinance, 1979, for the eviction of the appellant, as she was born in October, 1930, whereas the application was filed on 9- 10-1988, and the application was thus premature. The National Identity Card (ExA/3) shows her date of birth in Urdu as 20-9-1923 and not 20-9-1930. She has, therefore, crossed the age of 60 years when the application for ejectment was filed. Mr. Ghulam Hussain Abbasi, learned counsel for the appellant, who has presented his case with forensic ability has objected to the production of photo-copy of the National Identity Card and in support thereof he has placed reliance upon the case of Khawaja Muhammad Razzaque v. Umar Farook, reported in 1982 CLC 318, wherein photocopy of birth certificate purportedly issued by a Municipality in India not containing certificate of Notary Public or Pakistan Council or Diplomatic Agent as being duly certified by an officer having legal custody of original certificate, was not admitted to be a valid proof of age. The photocopy of the birth certificate referred to in the above citation was in fact a foreign document and it was to be produced in accordance with the provision of section 78 of the Evidence Act, 1872 (since repealed). The presumption of truth is attached to the National Identity Card (ExA/3) and its photo-copy was brought on record without any objection taken from the side of the appellant. Mr. Muhammad Zubair Quraishy, learned counsel for the respondent has also made a statement at the Bar that the original documents were shown to the Presiding Officer of the Court and after verification the photo-copies were placed on record. This statement is borne out from the record and the photo-copies of the documents from both the sides are available on the file. The entry in National Identity Card was considered to be a valid proof of age in the case of Master Muhammad Bashir v. Moinuddin, reported in 1990 CLC 703. This aspect of the case was also examined by the Supreme Court in the case of Syed Akhtar Hussain Zaidi v. Muhammad Yaqinuddin, reported in 1988 SCMR 753, and it was observed:-- "We have heard the appellant who is present in person and the learned counsel for the respondent.
The appellant has contended that the learned Judge of the High Court has erred in law by failing to ascertain the age of the appellant from the National Identity Card. The National Identity Card is issued under section 5 of the National Registration Act of 1973. It is issued after full inquiry is made. It is a public document and has got probative value. Presumption of truth is attached to it and can be considered as an evidence. The assertion of the appellant herein is supported by the identity card as a corroborative evidence. On the other side, the respondent did not produce any evidence that the appellant is below 60 years of age."
11. It was also contended on behalf of the appellant that the respondent owns number of business concerns and residential premises and, therefore, she is not entitled to avail the benefit of subsection (1) in view of the provision contained in subsection (2) of section 14 of the Sindh Rented Premises Ordinance, 1979. There is however, nothing on record to substantiate this assertion.
Muhammad Izhar Khan (P.W.1) has testified that the respondent does not own any other property except the building in which the disputed premises is situated. An attempt has been made to place reliance on a copy of Form P.T-I, a photo-copy of an application sent by the respondent to Excise and Taxation Officer and a photo-copy of a notice issued about the property tax, produced alongwith an application under section 21(3) of the Sindh Rented Premises Ordinance, 1979. The object of the provision contained in subsection (3) of section 21 of the Sindh Rented Premises Ordinance, 1979, is not to allow the parties to fill the gaps at the appellate stage. It is not meant to allow an unsuccessful litigant who had failed to prove his cause to have another attempt to cover up the weak points of his case. Even otherwise, these documents lead us nowhere and they require to be proved in the manner as provided by law. No doubt the appellant has catalogued a number of business concerns and residential premises, which are allegedly owned, occupied and managed by respondent but he has failed to prove about her possession of any such property in the evidence produced by him. This question was examined by the learned Rent Controller while dealing issue No,3, who answered the same in the following words.:-- "The burden of proof in respect of this issue is on the opponent that applicant is in possession of other commercial premises in any locality. The case of opponent at para. 11 of affidavit-in- evidence is that the applicant is already in occupation of entire ground floor portion near staircase leading to Ist Floor comprising one hall spreading over the area nearly 3 shops and 10 shops on Plot No, 5-A-4/43, Nazimabad, Karachi, one shop in Iqbal Market, 8 shops in Shoe Market, where she is running shoe business. On the other hand, the attorney of the applicant has denied the suggestion to this effect in his cross, moreover the learned counsel for the applicant has also put a question to the opponent in his cross- that he has not produced any proof of the properties mentioned by him which was also replied by opponent in affirmative, therefore, it was incumbent upon the opponent to have produced such material on record such as certified true copy of the extract from the property register to substantiate his plea so also it has come in the evidence that said portion is used for parking of motor-cycles etc. Of the sons of applicant as such the mere words are not sufficient to draw presumption regarding the occupation of applicant of any commercial premises in any locality owned by her, hence the issue is answered in negative."
12. There is no reason for me to take a different view from the one taken by the learned Rent Controller in his well-considered order.
13. Lastly an attempt was made to question the bona fides of the respondent and it was contended that there is nothing on record to show as to how the respondent would use the premises after getting the same vacated. In other words it was submitted that the need of the respondent is mala fide as she, her husband and her sons are already earning handsomely and therefore, getting commercial premises vacated for personal need and use was a false excuse. The question of bona fides was examined in the cases of Mst. Zubaida Ismail v. Mst. Zohra Sultana, reported in 1989 CLC 1121, Muhmmad Saleem Khan v. Mst. Amtul Laiq, reported in 1989 CLC 513, Mst. Mahmooda Begum v.
Muhammad A. Rauf, reported in 1986 CLC 1714, M.S. Baroba v. Manzoor Ahmed, reported in PLD 1986 Karachi 407, Muhammad Ali v. Mst. Hameeda Begum, reported in 1983 CLC 3237 and Wali Muhammad v. Mrs. Hameeda, reported in PLD 1981 Karachi 794, wherein it was held that plea of want of bona fides is irrelevant in a proceedings under section 14 of the Sindh Rented Premises Ordinance, 1979. In M.S. Baroba v. Manzoor Ahmad (PLD 1986 Kar. 407), a Division Bench of this Court examined this question in detail and observed that the Rent- Controller while deciding ejectment application under section 14 of the Sindh Rented Premises Ordinance, 1979, could not inquire into bona fides of landlord's need. This controversy has been set at rest by the Supreme Court in the case of Abu Bakar v. Abdul Haleem, reported in PLD 1991 SC 302, wherein it was held:-- "It may be pertinent to observe that the above-quoted section 14 in contradistinction to clause (vii) of subsection (2) of section 15 of the Ordinance (which entitles the landlord to apply for eviction of his tenant from the premises let out by him in case he requires the same in good faith for his own occupation or use or for the occupation or use of his spouse or any of this children) omits the use of the words "in good faith" which are employed in the above clause (vii) of subsection (2) of section 15. From the above deliberate omission, it is evident that the intention of the law-makers was that the persons specified in subsection (1) of section 14 should also be able to get the possession of the building owned by them without entering into controversial issue like the question of good faith or the regular trial of an ejectment case. To put it differently, it is a beneficial provision for the aforesaid specified persons. It is, therefore, to be construed in a manner which would advance the above objective instead of frustrating the same."
14. The evidence, which is available on record shows:--
(a) That the respondent has crossed the age of 60 years at the time of filing of ejectment application;
(b) That the requisite notice under section 14 of the Sindh Rented Premises Ordinance, 1979, was served upon the appellant;
(c) That the respondent has not rented out any commercial premises after she has attained the age of 60 years; and
(d) That the respondent is not in occupation of a commercial premises owned by her in any locality.
15. No case for interference is made out and the appeal is accordingly dismissed with no costs. The appellant is however, allowed two months' time to vacate the demised premises.
16. For the reasons recorded above, C.MA. Nos. 204/91 and 1337/90 are also dismissed.