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Civil Petitions Nos. 532‑K of 1984 and 306‑K of 1985, decided on 15th December, 1985.

(On appeal from the judgments of the High Court of Sind, dated 5‑9‑1984 and 9‑4‑1985, in F.R. As, 626/80 and 1936/84).

‑‑‑Art. 185(3)‑‑Sind Rented Premises Ordinance (XVII of 1979), Ss.15(2)(vi) & 21‑‑Ejectment on ground of personal need‑‑Order upheld in appeal by High Court‑‑Petitioner‑tenant seeking rehearing of appeal on basis of information /evidence obtained by him subsequent to decision of appeal and alleging fraud practiced by landlord upon Court‑‑High Court dismissed application as it had become functus officio after disposal of appeal and prayer of petitioner was in substance for review of judgment which power was not possessed by High Court under provisions of Ordinance (XVII of 1979)‑‑Petition for leave to appeal‑‑Held: It was for petitioner to have collected relevant information so that necessary evidence could have been produced by him during trial of case‑ Petitioner's failure to do so did not entitle him to produce evidence which could be summoned /obtained by petitioner at proper time‑‑No case of fraud having been made out against respondent, petition for leave to appeal dismissed.

Rehmatullah v. Ali Muhammad and another 1983 S C M R 1064 cited

Z.U. Ahmad, Advocate Supreme Court with M. Shabbir Ghaury, Advocate‑on‑Record for Petitioner.

Nemo for Respondent.

Date of hearing: 15th December, 1985.

‑‑Respondents Mst. Iqbal Begum and others are the successors and legal representatives of Mushtaq Ahmad Qureshi, who was the owner and landlord of the premises in dispute consisting of a quarter bearing No. 1468/2. Joharabad, Federal 'B' Area, Karachi, Mushtaq Ahmad Qureshi filed an ejectment application against the petitioner on several grounds including the ground that the premises are required reasonably and bona fide by the said landlord for his own use and the use of his family. Learned Rent Controller who decided the ejectment application accepted the plea of the said landlord in respect of personal requirement and rejected other grounds urged in support of the ejectment application. He accordingly passed an order of ejectment against the petitioner on 13th July, 1980. Being aggrieved by the said order the petitioner filed an appeal before the Sind High Court and it appears that pending this appeal Mushtaq Ahmad Qureshi the original landlord expired and was substituted by the present respondent Mst. Iqbal Begum and others. Learned Single Judge who heard the appeal agreed with the finding recorded by the Rent Controller that the landlord required the premises in good faith for the use of himself and his family.

2. At this stage it may be mentioned that according to the evidence of deceased landlord at the time the disputed premises were let out to the petitioner he was in the service of Pakistan Railways and was living alongwith his family in the official accommodation at McLeod Road, Karachi, and after his retirement in February, 1975, when he vacated the official residence, he shifted to the house of his eldest son who was independent from him this house in which he was living at the time of making the ejectment application was situated in Gulberg, Karachi and was owned by his son. On the other hand in his written statement the plea taken by the petitioner was that the deceased landlord on vacating the official residence, "occupied his own house No. A/790/12, Federal 'B' Area, Karachi."

3. The learned Rent Controller found the plea of the petitioner to be unsupported by any evidence to the effect that house No. A/790/12, in which the deceased landlord was living at the time of the application belonged to him. In this connection he referred to questions in the cross‑examination of the deceased landlord suggesting that the plot of the said house was leased out in his name but later on he transferred the same in the name of his son. Although the suggestion was denied by the deceased landlord, learned Rent Controller was of the opinion that coupled with absence of evidence in support of the plea of the petitioner, the suggestion made in the cross‑examination itself admitted that the plot was transferred in the name of the landlord's son. The learned Judge in the High Court also affirmed the finding of the Rent Controller in the following words:‑

"In any case the' impugned order does not show that it has been passed under section 14 of the Sind Rented Premises Ordinance, 1979. and the evidence produced on the record also shows that rented premises were genuinely required by the landlord for his own use as he was living with his family in the house with his eldest son which accommodation was insufficient. Landlord wants to live in his own house and the request is very genuine and reasonable. Evidence on this point has been properly appreciated by the learned Rent Controller and find no ground to interfere with the order of ejectment passed by the learned Rent Controller which is hereby maintained."

4. The learned Single Judge finding no force in the appeal, dismissed the same by his judgment, dated 5th September, 1980. On 30th October, 1984, however, the petitioner submitted an application purporting to be under section 21 of the Sind Rented Premises Ordinance, 1979, read with section 151 of the C.P.C. containing a prayer for rehearing of the appeal and for taking action for contempt of Court, mainly on the two grounds as under:‑

(i) that the deceased respondent had asserted in his evidence that he had no other place of his own where he could shift and that Plot No. A‑790/12 Federal 'B' Area, Karachi, did not belong to him but to 'his son with whom he was putting up. However, the petitioner had obtained information subsequent to the decision of the appeal that the aforesaid plot actually belongs to Mst. Iqbal Begum widow of Mushtaq Ahmad Qureshi deceased landlord;

(ii) that the aforesaid information and evidence produced in support thereof constitute fraud practised by the deceased landlord upon the Court in obtaining a decision from the Rent Controller.

5. Pending the disposal of this application the petitioner filed civil petition for leave to Appeal No. 532‑K/84, for leave to appeal from the judgment of the High Court, dated 5th September, 1984. Subsequently the application made by the petitioner was dismissed by the learned Single Judge as per his order, dated 9th April, 1985 holding that on disposal of the appeal the Court had become functus officio, with the result that the prayer in the application was in substance a prayer for review of judgment which power was not possessed by the Court under the provisions of the Sind Rented Premises Ordinance, 1979. It was further held that even under section 12(2), C.P C. no relief can be granted as the said provisions are not attracted to proceedings under the Ordinance of 1979. The other Civil Petition for Leave to Appeal No. 306‑K/85 is directed against the said order of the learned Single Judge, dated 9th April, 1985.

6. In support of these petitions Mr. Z.U. Ahmad, learned counsel appearing for the petitioner contended that in view of the law laid down in Rehmatullah v. Ali Muhammad and another 1983 S C M R 1064 the provisions of section 12(2), C.P.C. were attracted to the proceedings of appeal under section 21 of the Sind Rented Premises Ordinance. 1979. Before going into the question of law raised by the learned Advocate, however, we called upon him to satisfy us that even if the proposition of law submitted by him is taken to be correct, on merits there was a case of fraud as contemplated by section 12(2), C.P.C. In reply to this querry from the Court, he submitted that the deceased landlord's case was that house in which he was living at the time of making application for ejectment belonged to his son and not to himself. In the written statement filed by the petitioner, on the other hand it was categorically pleaded that the said house bearing No. A‑790/12, Gulberg, Federal 'B' Area, Karachi, belongs to the deceased the landlord himself. Referring to the cross‑examination of the said landlord, learned counsel pointed out that. he had categorically stated that he had no other house except the house in dispute. We were further referred to the statement made by the deceased landlord denying the suggestion that the said house belongs to him and not to his son. He also denied the suggestion that the plot of the said house was leased out in his name which was then transferred by him in favour of his son. On the contrary the deceased landlord asserted that the said house was constructed in March, 1974, by his son. Despite these categorical assertions, the learned counsel submitted, the evidence discovered by the petitioner shows that the plot of the house was in the name of the deceased landlord which was transferred in the name of his widow after his death. In this connection he relied upon two documents. The first document consists of a challan, dated 23rd February, 1985, issued by the K.D.A. to Habib Bank Limited to receive from Mst. Iqbal Jehan Begum a total sum of Rs.306 on account of ground rent upto June, 1986, late fee and non utilization fee upto 30‑3‑1973, in respect of Plot No. A‑790/12. The other document is form P.T.I. from the office of the Excise and Taxation IIIrd Division, Karachi, for the year 1984‑1985, pertaining to property No. A‑790/12, in which the name of the owner is shown as Mst. Iqbal. Begum widow of Mushtaq Ahmad Qureshi. Having regard to the fact that the deceased landlord expired sometime after 1978, these documents clearly relate to a period long after the death of the deceased landlord. In any case, as held by the learned Rent Controller the petitioner himself suggested that the plot was originally in the name of the deceased landlord but was subsequently transferred in the name of his son. The assertion of the deceased landlord that his son had constructed the house was not successfully challenged in cross -examination. It was for the petitioner to have collected the relevant information particularly when he had the number and description of the house, so that necessary evidence could have been produced by him during the trial of the case. His failure to do so does not entitle him to produce evidence which could be summoned or obtained by the petitioner at the proper time. In any case the relevant entries of the year 1985 in the name of Mst. Iqbal Jehan Begum do not lead to the inference that at the time the deceased landlord gave evidence the house stood in his name. There is no case of fraud made out on the basis of these two documents.

7. Learned counsel further submitted that the power‑of‑attorney given by the deceased landlord in favour of his attorney which was submitted subsequent to his evidence also showed that the deceased held other immovable properties beside the house in dispute. Even this document does not prove that the deceased had in his occupation any other house to hold that his statement was false. The term "immovable properties" does not necessarily mean houses and in any case does not mean houses in his own occupation.

8. For all these reasons we feel that on facts there was no case of fraud having been practised by the deceased landlord upon the Court. Therefore, it is not necessary for us to determine the question of law raised by the learned counsel whether section 12(2), C.P.C. is attracted in the present case. No other argument was raised in regard to the merits of the ejectment order.

9. There is, therefore, no merit in both these petitions which are accordingly dismissed.

M.I. Petitions dismissed.

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