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Civil Petition for Special Leave to Appeal No. K‑50 of 1983, decided on 8th March, 1983.

(On appeal from the judgment and order of the Sind High Court Karachi dated 21st December, 1982, passed in First Appeal No. 118 of 1982).

-‑‑ Art. 185(3)‑West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S. l3‑Ejectment sought on grounds of default in payment of rent ; subletting, raising un authorised construction and personal requirement ‑ Default of rent admitted by petitioner Petitioner failing to establish case even after remand and fresh enquiry and stood defeated on basis of evidence on record‑‑Findings of fact confirmed by High Court‑Issue of default and personal requirement of disputed premises by landlord conclusively decided on basis of evidence on record and no point of law raised by petitioner before Supreme Court‑‑Leave to appeal refused.

Abdul Hafeez Memon, Advocate Supreme Court and Rashid Akhtar Qureshi, Advocate‑on‑Record for Petitioners.

Zahiruddin, Advocate Supreme Court and Ahmadullah Farooqui, Advocate‑on‑Record for Respondent.

Date of hearing : 8th March, 1983.

Leave in this petition is sought from the judgment of the Sind High Court dated 21‑12‑1982 whereby the First Rent Appeal of the petitioners against the order of eviction passed by the Rent Controller was dismissed.

2. The dispute relates to premises bearing C. S. No. 927, Ward No. 5 situated at Jacobabad. The respondent/landlord made an application under section 13 of the Urban Rent Restriction Ordinance, 1959 on 4‑2‑1978 for ejectment of the petitioners in the Court of Senior Civil Judge/Rent Controller Jacobabad on the grounds of default in payment of rent for the months of July, 1977 to January, 1978, subletting, raising un authorised construction and personal requirement. The application was dismissed on 12‑11‑1980. On appeal filed by the respondent, the learned High Court by its judgment dated 27‑10‑1981 remanded the case to the Rent Controller for recording fresh evidence and giving decision on the following two points, namely: ‑

The existence of any practice between the parties for payment of accumulated rent. Whether the house in dispute was one unit or comprised of .six units as alleged by the petitioners (because decision on this point had bearing on the issue of personal requirement of the premises by the respondent).

The learned Rent Controller after receiving evidence decided both the questions against the petitioners and passed order of ejectment on 28‑6‑1982. The petitioners challenged this order before the Sind High Court which was dismissed.

3. The learned High Court in its remand order dated 27‑10‑1981 had considered the question of default in the light of the pleadings in the written statement of the petitioners wherein it was averred that the land lord had been collecting accumulated rent through his son‑in‑law, Wazir Muhammad, for six/eight months for which receipts were issued by him. Such allegation regarding existence of any practice was, therefore, examined by the Rent Controller who held that the petitioners had failed to produce any documentary evidence to show that the respondent's son‑in‑law had been accepting rent in lump sum in the past and the said plea was also contrary to the provision in the rent agreement Exh. 42.The second point whether the house consisted of six units, as alleged, was also decided against the petitioners after inspection of the disputed premises by the learned Rent Controller himself. These findings, which are of fact, were confirmed by the learned High Court as per impugned judgment.

4. The learned counsel for the petitioners attempted to argue that no default was specifically asserted by the respondent in his deposition and, therefore, the same was not proved. The question, however, is no longer open for consideration because no such question was raised before the learned High Court when the order of remand was passed specifically for the examination of the plea of existence of any practice regarding collection of rent in lump sum. In other words the default for the disputed and was admitted, as rightly observed by the learned Rent Controller his order dated 28‑6‑1982 which mentions that the petitioners in their reply hail admitted default since July, 1977 to January, 1978 but pleaded that the rent was collected by Wazir Muhammad, the son‑in‑law of the respondent after 4, 6 or 8 months and he never ‑used to collect rent monthly. The question of personal requirement had also been gone into earlier by the learned High Court when the case was remanded for the limited purpose of finding out the nature of accommodation available with the respondent. The petitioners thus having failed to establish their case even after the remand and fresh enquiry, stand defeated on the basis of evidence brought on the record.

5. For the reasons mentioned above, we find that the issue of default and personal requirement of the disputed premises stand conclusively decided on the basis of the evidence on the record and no point of law arises for consideration in this petition. The petition is accordingly dismissed.

M. Z. M. Petition dismissed.

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