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Civil Petition for Leave to Appeal No. 114‑K of 1985, decided on 10th June, 1985.

(On appeal from the Judgment of the High Court of Sind, dated 5‑12‑1984, in F.R.A. 557/83).

‑‑‑Art. 185(3)‑‑Sind Rented Premises Ordinance (XVII of 1979), S.21‑ Ejectment‑‑Remand‑‑Order of remand impugned by landlord‑‑Remand order supported by reasons appearing to be sound, leave to appeal refused.

‑‑‑Art. 185(3)‑‑Sind Ranted Premises Ordinance (XVII of 1979), S.21‑ Ejectment on ground of default‑‑Remand in appeal‑‑Plea that it could have been decided by High Court on evidence available on record, repelled, as period of alleged default was not mentioned in ejectment application‑‑Leave to appeal refused.

Abrar Hassan, Advocate Supreme Court and Nazir Ahmad Siddiqi, Advocate‑on‑Record for Petitioner.

Nemo for Respondent.

Date of hearing: 10th June, 1985.

‑‑Mst. Razia Begum owns Shop No. 183, situated in Block No. 4, opposite Stadium Road, Shah Faisal Colony, Karachi, and respondent Muhammad Rafi is the tenant in occupation thereof at monthly rental of Rs.300 and electricity charges payable to the petitioner. In 1982, the petitioner sought the ejectment of the respondent, inter alia, on the grounds that the shop premises were required by her for the use of her husband and that the respondent had committed default in the payment of rent including the electricity charges. The learned Rent Controller by his order, dated 11th June, 1983, however, only accepted the grounds of default in payment of electricity charges and bona fide personal requirement, and ordered ejectment of the respondent. In an appeal filed by the respondent a learned Judge of the Sind High Court, vide judgment, dated 5th December, 1984, set aside the finding of the learned Rent Controller on the issue of personal requirement and remanded the case to the Rent Controller for fresh decision on the question of default alone. Hence this petition for leave to appeal by the petitioner.

2. As regards the question of bona fide requirement of the petitioner the High Court reversed the finding in her favour on the ground that the reasons given by the petitioner in her evidence that the shop was required by her husband were not sustainable on the evidence produced in support thereof. The case of the petitioner was that her husband was jobless, and his eye‑sight was severely impaired with the result that he can only carry on business in the disputed shop which is adjacent to the residential house where he was living. The High Court on examining the evidence found that the husband of the petitioner had a shop in which he was carrying on business situated far away from his house and his eye‑sight, according to the High Court, was not so weak as to cause disability to him from moving around since he was attending the hearings of the appeal in the High Court. The High Court also found the statement of the petitioner that her husband was served with a notice by his landlord calling upon him to vacate the shop in his occupation to be fabricated as no such notice was produced. Also it was observed that no medical certificate was produced to prove the extent of the disability allegedly suffered by the husband of the petitioner. Learned counsel contended that the High Court was wrong in rejecting the evidence of the petitioner for the aforesaid reasons. However, we do not find any justification to interfere with the finding of fact particularly when it is supported by reasons which appear to us to be sound.

3. It was then contended that the High Court erred in ordering retrial on the question of default in the payment of rent, which could have been decided by the High Court on the available evidence on record. The learned Judge in the High Court has observed in this behalf that no period of the alleged default and particulars of the months for which rent was not paid mentioned in the ejectment application. It was, therefore, difficult for the respondent to prove payment or to disprove default. In this vague state of the pleadings and the evidence, the learned Judge took the view that the Rent Controller's finding holding the respondent guilty of default was not sustainable and, therefore, remand was necessary so that, fresh opportunity be given to the parties to produce their evidence properly. As the electricity charges formed part of the rent payable by the respondent, whose plea was that he had made some payments which covered the entire amount due from him the learned Judge thought it proper to remand this issue also to be decided afresh. Learned counsel was unable to satisfy us that the order of remand was, in the circumstances of this case not justified. In the final analysis the order of remand is to the benefit of the petitioner, who will get fresh opportunity to substantiate her allegation that the respondent had committed default in the payment of rent.

4. For the foregoing reasons, we see no force in this petition which is, therefore, dismissed.

M . I. Petition dismissed.

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