MUKHTAR AHMED vs S. MEHMOOD AHMED NAQVI
This appeal arises from a judgment of the High Court of Sindh, which affirmed an eviction order against the appellant regarding shop premises. The landlord sought eviction based on personal requirement and default in rent payment. The appellant contested the existence of a landlord-tenant relationship, claiming instead to be a business partner. The Rent Controller rejected this plea and found in favor of the landlord on all issues, including the existence of tenancy, default in rent, and the bona fide personal requirement of the premises. The High Court upheld these findings. Before the Supreme Court, the appellant further argued that the Rent Controller lacked jurisdiction because both parties were members of a Cooperative Society. The Supreme Court dismissed the appeal, holding that the lower courts correctly assessed the evidence regarding the tenancy and personal requirement. Furthermore, the Court rejected the jurisdictional argument, noting that the dispute did not concern the business of the Cooperative Society and that the plea was raised for the first time at the appellate stage without being pleaded or framed as an issue below.
- Can a party raise a jurisdictional plea regarding the status of a Cooperative Society for the first time in the Supreme Court if it was not pleaded before the Rent Controller?
- Does a dispute between members of a Cooperative Society regarding shop premises necessarily fall outside the jurisdiction of a Rent Controller?
- Is a finding of fact regarding the existence of a landlord-tenant relationship, affirmed by the High Court, liable to be interfered with by the Supreme Court when based on evidence?
' NAIMUDDIN, J.---This appeal by leave is from the judgment of the High Court of Sindh, dated 10-12- 1988, whereby the appeal filed by the appellant was dismissed in the following circumstances.
2. The respondent, being landlord, filed an application for eviction of the appellant from the shop premises on the grounds that he required the premises for his and his son's personal use and default in payment of the rent from January, 1981 till the making of the application on 21-10-1981.
The appellant pleaded that he was a partner in the business carried on in the shop but not the tenant. However, the Controller after discussing the evidence by an elaborate order, dated 31-1- 1987, found on all the following issues against the appellant:
(1) Whether there exists relationship of landlord and tenant between the parties?
(2) Whether the opponent has committed default in payment of rent?
(3) Whether the premises is required by the applicant for his own use and use of his son Syed Qamar Abbas?
3. The appeal from the order of the Controller filed by the appellant in the High Court, as stated before, was dismissed and the finding of the Controller on the relationship of landlord and tenant was upheld by the High Court by the judgment impugned in this appeal which consequently found that the default was also established. On the issue of personal requirement, the High Court affirmed the finding of the Controller by holding that "the learned Rent Controller has equally not fallen into an error in deciding the issue". In the result, the High Court dismissed the appeal but allowed the appellant four months' time to vacate the premises.
4. The appellant has argued his case personally. He has repeated the same contentions and arguments as were advanced by him, in person, in the High Court.
5. We have gone through the order of the Controller as well as the judgment of the High Court and the record. We find that all aspects of the matter have been fully considered by the two Courts below. The so-called partnership agreement has also been considered in the light of the evidence as, led by the parties.
6. In a similar case in respect Of another shop premises in the same Cooperative Market, while considering a similar plea, it was observed by this Court at petition stage in Petition for Leave to Appeal No,517-K of 1985 (Muhammad Iqbal v. Mst. Amtul Basir) as follows:-- "No question was raised by the learned counsel disputing the finding that the petitioner had committed default in the payment of rent or that the finding in respect of personal requirement was not justified. He very fairly conceded that the petitioner was not given a running business to manage and submitted that the business established in the shop is of the petitioner. In these circumstances we are satisfied that the Courts below were justified to hold that the petitioner was in occupation of the premises as a tenant."
The whole emphasis of the appellant was on the issue of relationship of landlord and tenant and on no other issue.
7. The appellant, however, submitted that he and the respondent being the members of the Coopertaive Society, the Controller had no jurisdiction to entertain ejectment application. The contention is misconceived because, firstly, the dispute does not touch the business of the Cooperative Society, secondly, the counsel for the respondent disputed the claim that the appellant is a member of the Cooperative Society and, thirdly, no plea as such was taken in the written statement filed by the appellant before the Controller and no issue on such a plea was framed. Even no such ground was urged before the High Court.
8. We, therefore, find no force in this appeal and accordingly dismiss it, leaving the parties to bear their own costs.
9. However, by consent of the respondent, we allow the appellant one year's more time to vacate the shop premises. If the appellant fails to vacate the premises .Within that period, he will be liable to be evicted forthwith' without notice. He will, however, continue to deposit the monthly rent in the Court of Rent Controller.