MUSHTAQ MIRZA AND Others vs Haji RASHIDUDDIN AND 2 Other
This matter concerns three civil petitions for special leave to appeal arising from ejectment proceedings against tenants of the Aulia Building in Karachi. The tenants (petitioners) faced two sets of ejectment applications by the landlords (respondents): one based on property reconstruction and a subsequent one based on non-payment of rent. The Rent Controller allowed both applications, and these orders were upheld by the Additional District Judge and subsequently by a Single Judge of the High Court. Before the Supreme Court, the petitioners argued that the second set of applications (for non-payment of rent) was not maintainable because an earlier ejectment order based on reconstruction was already under appeal. The Supreme Court rejected this contention, noting it was not raised before the High Court. Furthermore, the Court held that there is no legal bar preventing a landlord from filing a subsequent ejectment application against a tenant based on a different cause of action, even if prior proceedings are pending. Consequently, the petitions were dismissed.
- Can a landlord file a subsequent ejectment application against a tenant based on a different cause of action while prior ejectment proceedings are pending?
- Is a legal contention that was not raised before the High Court permissible to be raised for the first time in a petition for special leave to appeal before the Supreme Court?
ORDER
1. WAHIDUDDIN AHMAD, J.-This order will dispose of Civil petitions for Special Leave to Appeals Nos.
2. K-36, K-37 and K-38 of 1970 in which common question of law is involved.
3. The dispute between the parties is in respect of a building known as Aulia Building, situated at Burns Road, Karachi. The petitioners in all the cases are tenants of the respondents on monthly rent basis. Respondents filed ejectment applications against the petitioners, in May 1965 on the ground of reconstruction of the property in dispute. In the meanwhile, the petitioners fell into arrears of rent and the respondents filed other ejectment applications in December 1965 on the ground of non- payment of rent. These applications were heard by the Third Civil Judge and Rent Controller at Karachi and were allowed on the 29th November 1969. Appeal against this order was dismissed by the Additional District Judge, Karachi on the 16th October 1969. Second Appeal filed in the High Court was dismissed on the 12th January 1970, by a learned Single Judge of the High Court. The petitioners have challenged these orders in these petitions for special leave to appeal.
4. Mr. Abul Fazal Mohammad Mukarrim, learned counsel for the petitioners, has contended that as the petitioners have already been ordered to be ejected in previous rent proceedings on the ground of reconstruction against which Second Appeal No. 114 of 1968 is pending against the respondents in the High Court, the subsequent applications filed by them were not maintainable and had become infructuous. This contention was not raised before the High Court. We are, therefore, not inclined to allow it to be raised before us in these petitions for special leave to appeal. In any case, there was no bar for the second application to be brought against the petitioners on a different cause of action. There is no force in these petitions which are dismissed.
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