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Civil Petition for Special Leave to Appeal No. K‑234 of 1974, decided on 14th March 1975.

(On appeal from the judgment and order of the High Court of Sind & Baluchistan at Karachi, dated 14‑10‑1974 in Second Appeal No. 5 of 1973).

‑‑ S. 11‑ Res judicata‑Respondent earlier suing petitioners for ejectment on ground of their being trespassers but later suing them for ejectment on Around of their being tenants and premises being required for her own personal use‑Later suit, held, not barred on principle of res judicata.

‑‑--S. 13(3) (ii)‑Ejectment‑High Court and two Courts below con currently finding petitioners to have converted premises originally allotted to them as residential premises into non‑residential premises --Matter, held, concluded by such concurrent findings‑Petitioners having converted nature of premises without petitioner landlady's permission, held, rightly ordered to be rejected.

A. M. I. Nomani, Advocate Supreme Court instructed by Ahmadullah Faruqi, Advocate‑on‑Record for Petitioners.

Nemo for Respondent.

Date of hearing a 14th March 1975.

The respondent herein is owner of what has been described as residential tenement on a plot bearing survey No. 64/8, Garden West, Karachi. In 1956, she sued Hafiz Abdul Ghaffar since deceased and predecessor‑in‑interest of the petitioners herein, for ejectment, on the ground that he was a trespasser. The suit was dismissed on the plea taken by Hafiz Abdul Ghaffar that he was a statutory tenant under the respondent, by virtue of the allotment of the tenement in his favour by the Controller under section 15 (1) of the Sind Rent Restriction Act, 1947 (since repealed). While dismissing the respondent's suit, the Court fixed the rent of the premises at Rs.150 p m.

About six years after the earlier litigation, the respondent applied to the Rent Controller under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 for the ejectment of the petitioners herein (Hafi7 Abdul Ghaffar having died in the meantime), on the twin ground that she required the premises for her bona fide personal use and secondly, that the petitioners had converted the premises for non‑residential purposes for setting up a factory therein and thereby had perverted its user. The petitioners denied that the premises were required by the respondent for her bona fide personal use or that they had perverted the user of the premises, which bad throughout been used for non‑residential purposes. It was further pleaded that the suit was barred on principles of res judicata by virtue of the dismissal of the earlier suit filed by the respondent against their predecessor‑in‑interest Hafiz Abdul Gbaffar. The petitioners also raised a plea of estoppel.

The learned Rent Controller ordered the ejectment of the petitioners, on the ground that the premises were initially allotted to Hafiz Abdul, Ghaffar for residential purposes and indeed the Rent Controller, under section 15 (1) of the Sind Act could allot premises only for residential purposes, but that since the petitioners are using the premises as factory, they were liable to ejectment. The learned Rent Controller further found that the respondent required the premises for bona fide personal use of her son. On the legal issues raised, the learned Rent Controller, held that the present petition was not barred on principles of res judicata because in the earlier litigation, the respondent sued Hafiz Abdul Ghaflar as tres passer and not as a tenant. The plea of estoppel was also found against the petitioners.

The above findings of the learned Rent Controller have been maintained on the petitioners' first and second appeals by the Appellate Authority and the High Court respectively. The petitioners now seek leave to appeal against the judgment of the High Court dated 14‑10‑1974, maintaining the concurrent findings of the two Courts below.

Learned counsel for the petitioners virtually repeated his arguments, which were repelled by the learned Single Judge of the High Court. Sec tion 13 (3) (it) of West Pakistan Ordinance VI of 1959 forbids the conversion or prevention of premises to a purpose other than that for which it was originally let on rent, without the prior permission in writing of the landlord. No such permission is alleged, muohless, is proved.

After bearing learned counsel at some length, in our opinion, the question whether the petitioners have converted, what was initially allotted to their predecessor as the residential premises into non‑residential premises and therefore, they perverted its user, stands concluded by the concurrent findings of the High Court and the two Courts below. So also the plea about the bona fide requirement of the premises by the respondent for her son. The legal pleas taken by the petitioners in their defence have been a rightly decided.

The petition is accordingly dismissed.

Petition dismissed.

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