MUHAMMAD HUSSAIN vs ABDUL HUSSAIN KARIMJI TRUST AND Other

ORDER

S. A. NUSRAT, J.-This petition for special leave to appeal is from the judgment dated 11-11-1982 passed by a learned Single Judge of the Sind High Court whereby the first rent appeal of the petitioner and the respon--dents Nos. 2 to 4 was dismissed.

2. One Asghar A.I Sulemanji was a tenant of the disputed premises bearing No. 8, W. O. 8, Princess Street, Nanakwara Karachi, and upon his death the petitioner and the respondents Nos. 2 to 4 became the statutory tenants of the first respondent/ landlord. The respondent No. 1 made an application for the ejectment of the petitioner and the respondents Nos. 2 to 4 (hereinafter referred to as the tenants (in 1974 in the Court of the Senior Civil Rent Controller, Karachi, under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 on the ground of default in payment of rent, subletting and making extensive unauthorised additions and alterations in the disputed premises. The tenants in their written statement averred that according to the practice existing between the parties rent was paid on presentation of bills by the landlords and as such there was no case of default. The rest of the allegations were also denied. It appears that after the framing of the issues, although an application for framing of some additional issues was filed, the tenants and their counsel remained absent during the subsequent proceedings with the result that the case proceeded ex parte and the witnesses were not cross-examined. In the result, all the allegations contained in the application were decided against the tenants and an order of ejectment was passed by the learned Rent Controller on 15-8-1982. The said order was challenged by the tenants in the First Rent Appeal before the Sind High Court which was dismissed as per impugned judgment.

3. Learned counsel for the petitioner mainly contended that the application for ejectment, as framed, was not competent because it should have been filed by the Trustees and not in the name of the Trust through its managing trustee Ebrahimjee as mentioned in the cause title of the application. No such construction was raised in the written statement or before the learned High Court. The contention raised now is, therefore, not open for consideration at this stage.

4. The contention raised in appeal before the learned High Court was that the rent case should not have been disposed of by the learned Rent Controller without first deciding the tenant's application for the framing of amended or additional issues. It was urged that the object of framing such issues was to challenge the maintainability of the application which was filed at the instance of Ebrahimjee. After referring to the record, the learned High Court found that the tenants were themselves to be blamed for not pursuing their application for amendment diligently. It was further found that the tenants had been paying rent to Ebrahimjee and, therefore, the question of locus standi or authority of Ebrahimjee to file the application could not be raised in appeal. In para. 1 of the application it was clearly stated that the deceased Asghar A.I Sulemanji was the tenant in the building belonging to the Trust, which fact was admitted in the written statement. The only objection taken, however, was that Ebrahimjee had no locus stand! Or authority to file the case which is quite different from saying that the application, as framed, was not maintainable. The tenants could have challenged the authority of Ebrahimjee by cross-examining the witness or leading some evidence, which was, however, not done, because the tenants had remained absent during the proceedings when the witnesses were examined. No other contentions regarding the merits of the case were raised.

5. For the foregoing reasons, the judgment of the learned High Court is unexceptionable and the petition is, therefore, dismissed.

M. A. K.