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Civil Petition for Special Leave to Appeal No. K‑157 of 1981, decided on 22nd September, 1981:

(On appeal from the judgment and order of the High Court of Sind at Karachi, dated 18‑3‑19.81; passed in F. R. A. No. 266 of 1980).

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)

‑‑ S. 13‑Ejectment on ground of personal requirement of landlord Concurrent finding of Courts below on question of fact based on preponderance of evidence‑Held, unexceptionable‑Plea not taken before Courts below at any stage‑Cannot be examined by Supreme Court‑Rent Controller cannot direct landlord to surrender accommo dation in his possession to tenant and create a new tenancy.

M. M. Pirzada, Advocate Supreme Court and Faizan ul Haq, Advocate‑on -Record for Petitioner

S. Sami Ahmad and‑Ali Akbar, Advocate‑on‑Record for Respondent

Date of hearing 22nd September; 1982.

ZAFAR HUSSAIN MIRZA, J

.‑The petitioner is the tenant of the respondent in a room on the ground‑floor of a house bearing No. 3, Row No. 5. sub‑Block‑H, Block‑1, Nazamabad Karachi, at the agreed rent of Rs. 250 per month under an agreement of tenancy dated 27‑11‑1972. The respondent sought the ejectment of the petitioner on two grounds, namely, default in the payment of rent and personal requirement of the landlord. The learned Rent Controller rejected the ground of default but accepted the ground of personal requirement and ordered ejectment of the petitioner on 28‑2‑1981. On appeal the High Court of Sind, by its judgment dated 18‑5‑1981, has affirmed the order of ejectment and hence the petitioner, by the present petition, seeks leave to appeal from the said judgment.

The case of the landlord, which has been concurrently upheld by the two Courts below, is that he has been ailing since last 1 years prior to the making of the ejectment application, in which connection he had been hospitalized several times on account of a heart attack and has been advised by his doctor, to take residence on the ground floor, in order to avoid climbing of stairs. In support of plea, the petitioner relied upon documentary evidence, in the shape of medical certificate from Dr. Khurshid, Senior Registrar, Cardiology Unit, Civil Hospital, Karachi, discharge slip. All this evidence alongwith the oral evidence of the respondent has been believed and relied upon in arriving at the finding in favour of the respondent, by the Courts below. It has been further specifically found that evidence on record established the fact that respondent who is 65 years of age, has suffered heart attack. Ordinarily, therefore, the finding of the two Courts below is conclusive on questions of fact.

In supports of this petition, no question of law has been raised before us. We have perused the evidence of the petitioner, copy of which has been placed on record but no copy of the evidence of respondent ha been filed. From the evidence of the petitioner, it appears that h only showed ignorance about the respondent, having been admitted in the hospital as a heart patient. The finding of the Courts below, on the rule of preponderance of evidence, therefore, seems to be unassailable. The only contention of the learned counsel for the petitioner is that the respondent is already occupying a tenement on the first floor and if hi requirement was bona fide, he should have exchanged the accommodation in his occupation with that in the occupation of the petitioner. We are not impressed by this contention, which is devoid of force. Firstly no such plea was taken by the petitioner at any stage and with the material on record it is not possible to examine this contention at this stage; and secondly, there is no warrant in law for the Controller to direct the landlord to surrender, the accommodation in his possession to the tenant and create a new tenancy.

No other argument was advanced in support of this petition. There is, therefore, no merit in it and is accordingly dismissed: The petitioner is, however, allowed two month's time to vacate the premises subject to payment of rent.

Petition dismissed.

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