Sheikh KHURSHID AHMAD vs ABDUL AZIZ (THROUGH LEGAL REPRESENTATIVES).
This petition for leave to appeal was filed against an order of a learned Single Judge of the High Court dismissing a second appeal arising from rent proceedings. The landlord originally sought ejectment of the petitioner-tenant on grounds of default and bona fide personal requirement. While default was not established, the High Court held that the premises were bona fide required by the legal heirs of the deceased landlord due to the size of their family. The petitioner challenged the High Court's order primarily on the ground that the learned Judge had impermissibly relied on affidavits received during the hearing of the second appeal. The Supreme Court observed that the affidavits were obtained merely to elucidate facts that could have favoured the tenant, and found the High Court's judgment elaborate and well-reasoned with no material defect. Holding that no grounds for leave to appeal were made out, the Supreme Court dismissed the petition, granting the tenant four months to vacate subject to regular rent payments.
- Can the High Court in a second appeal obtain affidavits from parties to elucidate factual matters without rendering its judgment defective?
- Does a High Court's finding on bona fide personal requirement based on family size justify eviction in rent proceedings?
ORDER
1. ASLAM RIAZ HUSSAIN, J.-This petition is directed against an order of a learned Single Judge of the High Court dated the 18th of December 1978 dismissing the petitioner's second appeal in a rent case.
2. The facts of the case briefly are that Abdul Aziz Mirza (landlord) filed ail application for the ejectment of Sh. Khurshid Ahmad (petitioner) on the ground of default in the payment of rent and also bona fide requirement of the house for his personal use and the use of his children. The learned Rent Controller dismissed the application. The first appeal filed by the legal heirs of Abdul Aziz (deceased) was also dismissed. A second appeal was thereupon filed by the respondents in the High Court. The learned High Court Judge found that default in the payment of rent had not been proved. But in view of the size of the family of the landlords (respondents herein) the learned High Court Judge felt that the premises was bona fide needed by there for personal use.
3. The learned counsel for the petitioner objected that the learned High Court Judge had relied on evidence received by him during the hearing of the second appeal, in the shape of affidavits of Khurshid Ahmad and Shaukat Mirza. We are of the view that the learned High Court Judge had obtained these affidavits to elucidate certain facts which might have, favoured the petitioner/tenant. The learned High Court has delivered a very elaborate and well-reasoned judgment. No material defect has been pointed out in the same. We do not therefore consider it to be a fit case for grant of leave. The petition is dismissed.
4. The petitioner is however granted four months' time to vacate the premises in question, subject to regular payment of monthly rent.
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