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Second Appeal No. 204 of 1980, decided on 6th February, 1984.

‑‑ S. 16‑Bona fide personal requirement‑Increase of rent from Rs. 200 to Rs. 400, in a space of seven years hardly be considered to be unreasonable ‑ Such increase of rent, held, does not militate against bona fide requirement.

‑----S. 16‑Bona fide, personal requirement‑No positive statement from either side forthcoming whether upper floor of disputed property was completed or not‑Such matter not probed into by Courts below -Case remanded for decision of matter, after giving opportunities to parties.

‑‑‑ Ss. 21 & 27‑‑‑Appeal‑‑Forum‑Case pending before Rent Controller for evidence when Sind Rented Premises Ordinance, 1979 promulgated--Held, case has to be decided under new Ordinance of 1979 and not under West Pakistan Urban Rent Restriction Ordinance, 1959‑Appeal was competent only before High Court under S. 21 of new Ordinance, 1979, and not before District Judge.

‑‑ Ss. 13 & 15‑Sind Rented Premises Ordinance (XVII of 1979), S. 21‑Limitation Act (IX of 1908), S. 14‑Persuing of remedy before wrong forum‑Appellant filing appeal before District Judge on wrong assumption that matter had been decided under S. 13 of Ordinance, 1959‑Provisions of Ordinance, 1979 being applicable to case, proper remedy was appeal before High Court‑‑‑Provisions of S. t4 of Limita tion Act, 1908, attracted and appellant has persued his remedy in between in wrong Court.

Rehanul Hassan Farooqui for Appellant.

Inamul Haque for Respondent.

Dates of hearing: 5th and 6th February, 1984.

I have heard Mr. Rehanul Hassan Farooqui at some length and also heard Mr. Inamul Haq in reply. To me it appears that the factum of the transfer of the appellant from Landhi to Pipri has been positively proved by him and it has not been seriously challenged by the respondent/tenant. The requirement of the landlord in that event for getting his own house in Federal "B" Area vacated by the respondent would have been reasonably bona fide but Mr. Inamul Haq wanted to suggest that the increase of rent from Rs. 200 to Rs. 300, in 1975 and then again Rs 300 to Rs. 400 in 1977 militated against the bona fide requirements. I do no not agree with this position inasmuch as increase of rent from Rs. 200 to Rs. 400 in a space of seven years would hardly be considered to be unreasonable particularly when the house in question is in a independent unit, constructed on 200 sq. yds. and the increase was by consent.

The important question however, is whether the building of the upper floor of the disputed house by the appellant would militate against his bona fide requirement of the ground ‑floor premises. There is evidence to the effect that in June, 1978, the appellant had started construction of the upper floor and in November, 1979, house was either half way through or near completion but a positive statement has not been made in that respect either by the appellant or by the respondent and the respondent merely went to the extent that it was near completion. To my mind this aspect of the case would have received most serious consideration from the parties as well as from the Court and since it has not been done I have, therefore, come to the conclusion that this matter requires to proved into and I, therefore, set aside the two orders in appeal and direct that the case alongwith R & P be sent back to the Rent Controller for deciding the above matter after notice to the parties and after giving them an opportunity to prove whether the first floor of the house has been completed or not and thereafter deciding the case of l ejectment of the respondent after taking into consideration that matter. The parties counsels are before me and they have been directed to require their parties to appear before the Rent Controller having jurisdiction in respect of Gulberg Police Station, Karachi on 3rd of March, 1984. The office is directed to send the R & P to the same Rent Controller having juris diction in respect of Gulberg Police Station area within ten days from this order.

I may also make it clear that this second appeal has been treated by me as the first appeal in view of the fact that the order of the Rent Controller was passed on 13‑2‑1980 and the appellant had wrongly filed first appeal before the District Judge on 13.3‑1980. In fact this case before the Rent Controller was pending for evidence on 11‑11‑1979 and it was posted for evidence again on 5‑12‑1979 and it was only 13‑12‑1979 that this case was put off for arguments. In these circumstances it is clear that the case was not fixed for arguments or Judgment on 21‑11‑179 when the Sind Rented Premises Ordinance, 1979, was enforced, therefore, in view of the provision of section 27 of the S. P. R. O, 1979 the case before the Rent Controller was to be decided under the provisions of this view new Ordnance of 1979, and not under the Provisions of West Pakistan Urban Rent Restriction Ordinance, 1959. The appeal was, therefore, competent only before the High Court under section 21 of the S.P.R Ordinance, 1979, and not before the Additional District Judge. But by mistake the appellant filed the appeal for the District Judge, Karachi. And even the District fudge did not controvert the factum of the matter being fixed for arguments and Judgment. However, he took the view that section 27 of the said Ordinance merely regulates the procedure and that the appeal was in fact available before the High Court only. The District Judge was right in the arguments that the appeal had to be filed before the High Court but his presumption that the matter was fixed for arguments and judgment was not correct. However, instead of giving back the appeal for proper presentation to the proper Court, he committed mistake in dismissing the same and, therefore, to that extent his order was not correct. There was of course, a question of delay in filing the appeal in the proper Court as this appeal was presented on 26‑4‑1980 while the order under appeal was passed on 13‑2‑1980 but considering that there was a mistake on the part of the appellant in assuming that the appeal could be filed before the District Judge, Karachi on account of wrong assumption that the matter had been decided under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1979, therefore, the procedure of Ordinance, 1959, would be applicable in this case. I consider that the provisions of section 14 of the Limitation Act were attracted in this case and that the appellant had pursued his remedy in between is the wrong Court. I must state that Mr. Inamul Haq was fair in his attitude in this aspect of the case and had contended that this appeal could be heard on merits. Consequently this second appeal is disposed of in the above terms and the case is remanded back to the Rent Controller having jurisdiction in respect of Gulberg Police Station, Karachi with a direction that he will dispose of the case within three months from the first date of hearing before him on 3‑3‑1984.

M. B. A. Case remanded.

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