Mst. ZOHRA BEGUM Versus ABDUL GHANI
This appeal under section 21 of the Sind Rented Premises Ordinance (hereinafter referred to as the Ordinance) has been brought at the instance of landlady against the order of the learned VIIIth, Senior Civil Judge and Rent Contr6her, Karachi, dated 27‑3‑1985 under the following circumstances.
2. The appellant is the landlady of the premises bearing Nos.2/3 and 2/4, W.0.4/16‑4‑II‑C‑105, Princess Street First Floor, Natha Lai Vesla Bhai Kadad Building, opposite Lady Dufferin Hospital, Nanakwara, Karachi, of which the respondent is a tenant at a monthly rent of Rs.50 only. On 7th April, 1984, the appellant filed an application under section 14 of the Ordinance, which was registered as Rent Case No.2205 of 1984 for ejectment of the respondent on the ground that her husband Niaz Ahmed son of Rehmat Ali had died on 10‑2‑1976 and since then she is living widowed life. It was mentioned in the application that through a notice dated 19th June, 1981 the appellant had requested the respondent to vacate the premises in question as she required the premises in his occupation for her personal bona fide use within a period of two months after the receipt of notice.
3. The respondent contested the said application, inter alia, on the ground That the legal notice, dated 19th July, 1981 has already been held to be invalid and not in accordance with law by the learned XVth Senior Civil Judge/ASJ and Rent Controller, Karachi, in the Rent Case No.4959 of 1981 filed by the appellant against the respondent. It was, therefore, pleaded that the application was hit by the principle of res judicata inasmuch as the order of the learned Rent Controller dated 24‑4‑1984 passed in Rent Case No.4959 of 1981 had assumed finality.
4. That on 5‑3‑1985 the respondent filed an application under section 11, C.P.C praying for the rejection of the application (Rent Case No.2205 of 1984). This application was duly supported by the affidavit of the respondent. In her counter‑affidavit the appellant stated that under the prevailing law notice dated 19‑7‑1981 was valid as required under section 14 of the Ordinance and that the observations of the learned XVth Rent Controller, Karachi, in Rent Case No.4959/81had no effect over the present proceedings. It was further deposed by her that "theafling of the instant case on the basis of the notice dated 19‑7‑1981 is permissible in law. Even otherwise, the provisions of section 11 of Civil Procedure Code are not applicable to the proceedings under section 14 of S.R.P.O. 1979" The appellant also filed his rejoinder.
5. After hearing the arguments of the learned counsel for the parties, the learned Rent Controller vide his impugned order dated 27‑3‑1985 dismissed the rent case.
6. I have heard Mr M.K.Kazi, learned counsel for the appellant as well as Mr. M. Rashiduddin learned counsel for the respondent and have perused the impugned order as well as the order of the learned XVth Senior Civil Judge/ASJ and Rent Controller passed in Rent Case No.4959/81, dated 28th April, 1984.
7. The issue regarding the validity of the notice dated 19‑7‑1981 under section 14 of the Ordinance was decided by the learned XVth Senior Civil Judge/ASJ and Rent Controller, Karachi, in his abovenoted order as under:‑
"In view of the above discussion demand of vacant possession of disputed premises within two months by notice dated 19‑7‑1981 is illegal. Notice dated 19‑7‑1987 is invalid and not in accordance with law and hence the rent application is not maintainable."
8. The above order of the learned XVth Senior Civil Judge/ASJ and Rent Controller, Karachi was patently against the appellant. She had a right to fife an appeal against that order before the concerned appellate authority. She did not, however, admittedly do so and thus, allowed that order to become final. Later on, she again initiated the ejectment proceedings against the respondent under section 14 of the Ordinance on the basis of that very notice dated 19‑7‑1971 which had been held to be invalid in an earlier Rent Case as stated above.
9. The learned Rent Controller has, in my opinion, rightly held the latter case to be hit by the principle of res judicata. It is too a well‑established principle of law that an order against which an appeal is available remains a final order till such time as an appeal is actually filed. Since in the instant case no appeal was filed against the order of the learned XVth Senior Civil Judge/ASJ and Rent Controller dated 28th April, 1984, passed in Rent Case No.4959/81 it became. $ final by lapse of time and for want of an appeal. The learned VIIIth Senior Civil Judge and Rent Controller has, therefore, committed no error in dismissing the because of the fact that the notice dated 19‑‑‑7i‑1981 on the basis of which the said proceedings were adopted had already been declared as invalid in law.
10. The question of legality or otherwise of the said notice could be agitated and determined only if an appeal would have been carried by the appellant against the order of the learned XVth Rent Controller, Karachi, in Rent Case No.4959 of 1984. The validity of the notice could not in the presence of the said order of the learned XVth Senior Civil Judge and Rent Controller be judged in any subsequent proceedings.
11. Under the aforesaid facts and circumstances I do not find any merits in this appeal and dismiss it accordingly. The parties shall, however, bear their own costs.
M.Y.H./Z‑54/K Appeal dismissed.