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Civil Petition for Special Leave to Appeal No. K‑238 of 1983, decided on 2nd October, 1983.
(On appeal from the judgment and order of the Sind High Court, Karachi, dated 10th May, 1983 passed in Second Appeal No. 34 of 1983),
‑‑ Art. 185 (3) read with West Pakistan Urban Rent Restriction Ordi nance (VI of 1959), Ss. 13 & 15‑Ejectment on ground of default in payment of rent‑‑‑‑Concurrent finding of Additional District Judge and High Court found neither erroneous nor un-maintainable‑Question of fact not raised before High Court‑Held, cannot be decided by Supreme Court‑Leave to appeal refused.
Faizanul Haq, Advocate‑on‑Record for Petitioner.
Nemo for Respondents.
Date of hearing : 2nd October, 1983.
The petitioner in this case is aggrieved by the order of his ejectment from the residential premises in his occupation passed by the learned Additional District Judge, Karachi on the ground of default in the payment of rent as well as personal requirement of the premises by the landlord. The ejectment application was brought by the original land lord Syed Nasiruddin on 27‑3‑1972 in which he had alleged, inter alia that the petitioner had committed default in the payment of rent from 16‑1‑1972 to 15‑3‑1972. However, as Syed Nasiruddin transferred the premises by sale in favour of Mst. Parveen Hilaluddin, respondent No. 1 herein she was also joined as applicant by the Rent Controller as per his order dated 10‑4‑1975. The petitioner denied the allegation of default in the payment of rents and contended that Syed Nasiruddin had already received the rents for the period in question. The additional plea taken by the petitioner was that Syed Nasiruddin had failed to carry out the required necessary repairs in the premises as earlier promised by him and on being called upon to do so, he authorised the petitioner to carry out the repairs, which were in fact carried out by him. It was submitted that there was a dispute between the parties over the payment of the amounts spent by the petitioner.
2. The learned Rent Controller framed an issue on the question of alleged default in the payment of rent by the petitioner as well as on other points of dispute. He, however, found all the issues in favour of the petitioner. On the issue regarding default the learned Controller held that since the original landlord was not examined as a witness and since the petitioner had carried out repairs, the amount of which was liable to be adjusted against the amount of rents, the petitioner was not proved to have committed default. As already stated on appeal the learned Additional District Judge disagreed with this finding and decided the issue of default against the petitioner. He held that there was simply an oral assertion on the part of the petitioner that he had paid the rents for the disputed period although in his own statement of account dated 5‑12‑1972 there was arrears of rent outstanding against him at least for 11 months. The final conclusion reached by the learned Additional District Judge was that on the evidence on record it was established that there was a clear default in the payment of rent from 16‑4‑1971 until 29‑3‑1972. As regards the plea of the petitioner that he had spent some amount on the repairs, the learned Additional District Judge found the same to be false as no evidence was produced to prove this plea and additionally the consent of the landlord was also not proved.
3. The Second Appeal filed by the petitioner against the order of his ejectment was dismissed by the impugned judgment by a learned Single Judge of the Sind High Court on 10‑5‑1983 in limine. The learned Judge affirmed the finding of the learned Additional District Judge and agreed with his conclusion that the evidence on record established the fact of default committed by the petitioner. He also held that the petitioner was not entitled to adjust the alleged amount spent by him over the repairs of the premises with Put the permission of the landlord.
4. The petitioner being aggrieved by the judgment of the High Court low seeks leave to appeal. We have heard the learned counsel appearing for the petitioner at length and examined the record of the case. We are not persuaded to agree with the learned counsel that the concurrent finding of the earned Additional District Judge and the High Court is in any way erroneous unsustainable on the evidence adduced in the case. The learned counsel further sought to urge that respondent No. 1 who stepped into the shoes of the original landlord by virtue of the sale of the premises in her favour during he proceeding was not entitled to receive the arrears of rent in terms of the sale‑deed and as such was not competent to prosecute the ejectment application against the petitioner on that ground. This question was not raised before the High Court and in any case is an attempt to raise a, question of act which cannot be decided in the absence of the sale‑deed. No other, question of law was raised in support of the petition.
5. The petition, therefore, fails and is accordingly dismissed.
S.Q Petition dismissed.
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