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Civil Petition No. K‑231 of 1985, decided on 3rd June, 1985.

(On appeal from the judgment and order of the High Court of Sind at Karachi, dated 3rd April, 1985 passed in First Rent Appeal No. 264 of 1984).

‑‑‑Art. 185(3)‑‑West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S.13‑‑Ejectment application granted on ground of personal need‑ Order upheld by High Court after re‑examination of evidence on record‑‑Leave to appeal‑‑Petitioner not allowed to raise pleas which were not raised at any stage before‑‑Petition being devoid of merits, dismissed.

Zohra Begum v. Pakistan Burmah Shell Ltd. P L D 1984 S C 38 distinguished.

‑‑Art. 185(3)‑‑Leave to appeal‑‑Grant of‑‑New plea‑‑Petitioner not allowed to raise pleas which were not raised at any stage before‑‑Petition for leave to appeal dismissed.

Hussain Shah Rashidi, Advocate Supreme Court assisted by Rashid Akhtar Qureshi, Advocate‑on‑Record for Petitioner.

Yousuf Rafi, Advocate‑on‑Record for Respondent.

Date of hearing: 3rd June, 1985.

This is a petition for leave to appeal from the judgment of a learned Judge of Sind High Court, dated 3‑4‑1985 dismissing an appeal filed by petitioner and thereby upholding the order of the Rent Controller dated 12‑2‑1985 directing petitioner to hand over possession of the demised shop to respondent‑landlord.

2. The Rent Controller passed that order on being satisfied that respondent required the demised shop for his personal use as asserted by him in the ejectment application. In that application, respondent pleaded that he requires the shop for "doing the motor welding and denting job" and he had trained his two sons in the same job who are now able to share with him in the business.

3. On appeal against the order of the Rent Controller, learned Judge in the High Court re‑examined the evidence recorded in the case and upheld the finding of the Rent Controller in these words:

"It is also not disputed that the respondent has two sons. It has been brought in evidence that both the sons of the respondent have attained the age of majority. One of the sons of the respondent is doing motor welding and denting job and his other son is automobile mechanic. The shop in occupation of the respondent is said to be merely 12 ft. x 12 ft. Such a small shop may not be sufficient for doing motor welding and denting job by the respondent and his one or two sons. One of the sons is working as automobile mechanic. Of course, this fact was not disclosed in the main application but the job of automobile is more or less connected with the job of motor welding and denting and both the jobs can be carried out simultaneously in the same premises. The question is the sufficiency of the evidence adduced by the respondent /landlord in proving his need for getting the rented premises vacated. There is evidence of the respondent and his two sons of one side and that of the appellant on the other side in opposition. The evidence adduced by the respondent does not appear to be deficient in proving that he and his sons need additional accommodation for flourishing their business in motor welding and denting and even doing the job of automobile machanic. It has, of course, been alleged that the ejectment application has been filed with ulterior motive, but there is no evidence except the word of appellant to substantiate the allegation. "

4. Mr. Hussain Shah Rashidi, learned counsel appearing in support of the petition relying on the decision of this Court in the case of "Zohra Begum v. Pakistan Burmah Shell Ltd. P L D 1984 S C 38" submits that respondent by executing the rent agreement had bartered away his right to evict the petitioner, and in this behalf, relied on the fact that respondent had taken advance rent of Rs.2,500 as against monthly rent of Rs.135 and agreed to permit the petitioner to remain as tenant after the advance rent was adjusted and was aware that petitioner would use the premises as a machine shop, which, according to learned counsel meant a permanent business in the shop. Learned counsel further submits that respondent's plea that he requires the premises for his personal use is not bona fide as it is a small shop wherein the business of motor welding and denting cannot be undertaken.

5. The first plea was neither raised in the pleading of the case, nor at the hearing before the Rent Controller. It was not taken at the appellate stage in the High Court nor has been raised in the memorandum of the petition before this Court. Even otherwise, from the terms and conditions of the agreement itself, on which reliance has been placed, it cannot be spelled out that the principle laid down by this Court in the case "Zohra Begum v. Pakistan Burmah Shell Ltd." is attracted. ' There is thus no substance in this plea.

6. The second plea was also not raised at any stage before. Being essentially a factual plea, it should have been raised in the Court of first instance and respondent should have been confronted with it in the cross‑examination. Petitioner is, therefore, not entitled to raise this plea for the first time before this Court.

7. For these reasons, there is no merit in this petition, and it is dismissed.

8. At this stage, learned counsel for the petitioner requests that petitioner may be granted at least one year's time to make alternative arrangement and vacate the premises.

9. The request for grant of such a long time to vacate the premises after the respondent has succeeded in the case throughout in the litigation which has covered a period of more than seven years is most unreasonable, but learned counsel for the Caveator is willing to grant four months time to petitioner provided he gives an undertaking to the Court that he shall hand over the premises after four months from today without respondent having to resort to execution proceedings.

10. Petitioner who is present in person and the learned counsel appearing for him accept the offer made by the learned counsel for the Caveator, and they give an undertaking that on the expiry of four months from today the shop will be handed over to respondent without his making resort to execution proceedings. Petitioner further undertakes to deposit the rent for the next four months in Court.

11. In view of the above undertaking given by the petitioner he shall not be evicted for the next four months from today, and shall hand over vacant possession of the demised premises to respondent without fail.

M . I . Petition dismissed.

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