GUL MUHAMMAD MOTIWALA Versus MUHAMMAD IQBAL

This is an appeal under Section 21 of the Sind Rented Premises Ordinance, 1979, hereinafter referred to as the Ordinance, against the order dated 24‑11‑1986 passed by the learned IIIrd Senior Civil Judge and Rent Controller (East) Karachi in Rent Case No. 778 of 1985, allowing the ejectment application filed by the respondent under section 14 of the Ordinance and directing the appellant to vacate the shop in his occupation built on Plot No. 327 C, Block 11, Central Commercial Area, P.E.C.H.S. Karachi.

2. Mr. Zaki Muhammad, learned counsel for the appellant, at the very start of his submissions stated that there is no cavil on the point of retirement of the respondent and his attaining the age of 60 years. He, however, submitted that the application moved by the respondent is mala fide. In support of this submission he referred to the ejectment application bearing Rent Case No. 2985 of 1979 filed by the respondent against the appellant, which was withdrawn on 29‑4‑1982. It was further submitted by him that the respondent stood retired and the plea of seeking ejectment by filing application under Section 14 of the Ordinance, was available to him on the date when the previous application was pending. Mr. Ghori has invited my attention to the certified copy of the withdrawn application of Rent Case No. 2985/79, which reads as under :‑‑

"The applicant begs to withdraw the above case as he has filed a case against the opponent under Section 14 of the Rented Premises Ordinance, 1979, of which a notice has already been served on him:"

On the basis of the statement of withdrawal it can, by no stretch of imagination, be said that the present application is mala fide. It may, however, be added that the previous application was filed under Section 13 of the West Pakistan Urban Rent Restriction Ordinance 1959, which though continued under the present Ordinance (Sind Rented Premises Ordinance, 1979) but it remained a proceedings under Section 15 and not 14. Furthermore, there was no such provision as provided in the Sind Rented Premises Ordinance, 1979 for summary eviction under Section 14 in the Ordinance, 1959. In any case, the question of I mala fides or bona fides need cannot be gone into while deciding an application under Section 14, as held in a D.B. judgment of this Court reported as M.S. Broba v. Manzoor Ahmed (P L D 1986 Karachi 407). Reference is also made to the case of Bakhsh Elahi v. Qazi Wasif Ali (1985 S C M R 291) which has been referred in the above Karachi case. In view of the above authoritative pronouncements of the Hon'ble Supreme Court and a Division Bench of this Court, the submission of the learned Counsel has no force.

3. Mr. Zaki Muhammad, however, submitted that the shop in question is, in fact, not one, but they are two, as there exists a partition wall. Mr. Shabbir Ghouri, in reply, submitted that the premises in question is a single unit against the rent of Rs. 5,000 per month and throughout the proceedings has been termed as one shop. However, this ground is not available to the appellant as the pleadings, not only in the above case, but in the earlier case also, are completely silent about it. Mr. Zaki submits for an enquiry to be made by this Court. I am afraid, the submission is misconceived inasmuch as further enquiry is to be made to ascertain the facts if they are pleaded and are on record m order to have a C better understanding of the facts on record and not to create new facts for one party or the other. This Court cannot enter into an enquiry to a new fact which has not at all been alleged in the previous litigation nor the present one. It will entail further proceedings which goes against the very object and purpose of Section 14.

4. For the reasons discussed above, the appeal is dismissed.

5. Mr. Zaki Muhammad now submits that the appellant may be given some time to vacate the premises as it is a shop. By consent one month's time is given to the appellant to hand over the vacant and peaceful possession of the premises in question to the respondent, failing which the appellant will be liable to be evicted without notice.

H.B.T./G‑61/K

Appeal dismissed.