MUHAMMAD ARIF vs Mrs. ANWAR JEHAN

ORDER

' ABDUL HAMEED DOGAR, J.---This petition for leave to appeal is directed against the judgment, dated 12-1-2000, passed by a learned Single Judge in Chamber of the High Court of Sindh at Karachi in First Rent. Appeal No.675 of 1994, whereby the appeal of the petitioner was dismissed and the order of eviction, passed by Rent Controller, Karachi (East), dated 17-10-1994 was maintained.

2. Briefly, the facts, leading to the filing of this petition are that respondent Mrs. Anwar Jehan filed ejectment application under section 15 of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as the "Ordinance") seeking ejectment of the petitioner from House No.281/15, situated on ground floor, Bihar Muslim Cooperative Housing Society, Karachi (hereinafter referred to as the "demised premises") on the ground of personal bona fide need. The services of Syed Zakir Hussain, the husband of respondent, employed in BCCI Bank in Turkey, were terminated in the month of August, 1991 due to closure of Bank, whereafter he returned to Karachi. Thereafter the respondent and her husband started residing temporarily in the house of S. Tahir Hussain brother of her husband. The case of respondent further was that her husband was suffering from heart disease and claudication in legs due to which he was unable to walk and climb up the stairs. He had also undergone bypass operation and angioplastic surgery and was advised by the doctors to reside on the ground floor and not to climb stairs. Irrespective of this her son who was studying in U.S.A.

Was scheduled to return to Karachi. On the first floor of the building her son Syed Farrukh Raza was residing alongwith his family. As respondent and her husband had no other house to reside as such the demised premises were required in good faith for them as well as for their personal use and occupation of their son. Previously a Rent Case No.5375 of 1980 was filed on the ground of personal requirements which was allowed but the order was set aside in F.R.A. No.419 of 1984 by the learned High Court of Sindh, Karachi.

3. The petitioner in his written statement denied the averments of the respondent and pleaded that the demised premises was not required by the respondent for personal need and in good faith as they were residing in the first floor of the same building having better and sufficient accommodation. According to him the respondent has got other properties of her own in Karachi and previously also the similar plea has been rejected by the High Court of Sindh at Karachi in F.R.A.

No.419 of 1984, as such the instant rent case was hit by the principle of res judicata hence not maintainable in law.

4. In support of the case respondent examined herself, her husband Syed Zakir Hussain, Syed Tahir Hussain, her son S. Farrukh Raza, Dr. Akhter Hussain and Muhammad Saleem Bhatti. On the other side the petitioner filed his own affidavit-in-evidence and produced some documents in his favour.

5. We have heard Mr. K.B. Bhutto, the learned Advocate Supreme Court on behalf of the petitioner and have gone through the record and proceedings of the case in minute particulars.

6. Mr. Bhutto mainly contended that the petitioner had moved C.M.A. No.123 of 1999 under section 21(3) of the Ordinance for bringing on record the additional evidence on the subsequent development that the respondent and her husband had shifted to U.S.A. And had settled there on the basis of sponsorship of their sons, the citizens of U.S.A. And had handed over the possession of the first floor of the said building to their nephew Johar Abbas. According to him the learned High Court vide order, dated 29-1-1999 ordered hearing of the said application alongwith main appeal but did not pass any orders on the said application while disposing of the appeal of the petitioner, as such a mandatory provision of law was violated. He next argued that the respondent suppressed the material documents viz. Her and that of her husband's passports, authenticated medical report about her husband and educational documents of her son in U.S.A. He lastly contended that the impugned judgment is in conflict with the mandatory provision of Order XX, rule 4(2) of the C.P.C. As the points for determination were not framed therein.

7. The Rent Controller as well as the learned High Court have elaborately discussed the issues in their judgments and have given proper findings on the same. On the issue of requirement of the demised premises for personal bona fide use in good faith sufficient evidence was adduced by the respondent.' She had not only examined herself but produced the evidence of her husband Syed Zakir Hussain, his brother Tahir Hussain, her son Farrukh Raza and two independent witnesses Dr. Mirza Akhter Hussain and Muhammad Saleem Bhatti. All of them had categorically stated that Syed Zakir Hussain was employed in B.C.C.I Bank and his services were terminated in August, 1991 and had returned back to Karachi and due to non-availability of accommodation was residing alongwith his family in the house of her brother Syed Tahir Hussain. She had also proved that her husband was an ailing man and was unable to climb upstairs. The petitioner's counsel though thoroughly cross-examined the abovementioned witnesses but all in vain. As such there is no justification to interfere with the concurrent findings of the two Courts below that the demised premises were in fact required for personal bona fide need of the respondent, her husband and her sons in good faith.

8. Under section 20 of the Ordinance, the Rent Controller and the appellate authority have been given power of a Civil Court in respect of the following matters only--

(i) summoning and enforcing the attendance of any person and examining him on oath.

(ii) compelling production or discovery of documents;

(iii) inspecting the site; and

(iv) issuing commission for examination of witnesses or documents.

Order XX, rule 4 (2) of C.P.C. Is not applicable to the rent proceedings under the Ordinance. Even otherwise in the impugned judgment every aspect of the matter has been taken into consideration and findings have been recorded on all issues and is in accordance with law.

9. The contention of the petitioner about bringing additional evidence on record at the appellate stage if allowed would amount to a new plea which was neither raised in the rent case nor in the memorandum of appeal. If the new pleas with regard to the factual controversies are allowed to be raised at the appellate stage it will not only open a pandora's box but will prolong the litigation and there will be no end.

10. The learned counsel for the petitioner has also not been able to point out any illegality, infirmity, misreading or non-appraisal of the evidence from the impugned judgment.

11. Accordingly, leave to appeal is refused and the petition is dismissed. However, the petitioner is allowed three months' time to vacate the demised premises and hand over its vacant possession to the respondent, failing which writ of possession shall be issued against the petitioner without notice with police aid, if necessary.