1990 PLP 376 (SCMR)

Syed Ali Ahmad Tariq, Advocate Supreme Court and Muzaffar Hassan, Advocate‑on‑Record for Petitioner. Nemo for Respondent. Date of hearing: 28th March, 1989. S. A. NUSRAT, J.‑‑This petition for leave to appeal arises out of an order passed by the learned High Court recalling an earlier order staying the proceedings of eviction of the petitioner on filing of his appeal from the order‑of the Rent Controller passed under section 14 of the Sind Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance). While the main appeal of the petitioner is pending disposal, he seeks reversal of the impugned order saving him from eviction from the disputed premises.

2. The respondent/landlord, after serving a notice in terms of section 14 of the Ordinance and on the failure of the petitioner to hand over possession of the disputed premises, had applied to the Rent Controller under section 14 of the Ordinance for eviction of the petitioner vide his application dated 31‑8‑1986 on the ground that he had retired from Government Service on 15‑4‑1986 on attaining the age of 63 years and the premises were required by him for his personal use and occupation as since then he had moved over to Karachi for permanent settlement and was residing in a rented house in Federal B Area, Karachi. The respondent had further averred that he had no premises in Karachi except the one in dispute. The application, after contest was allowed by the Rent Controller by his order, dated 20‑12‑1988 and the plea raised on behalf of the petitioner that the disputed premises were non‑residential, was decided against him with a clear finding that the same were residential and the application for eviction fell within the ambit of section 14 of the Ordinance.

3. In arguing the petition from the abovementioned interlocutory order it was urged by the learned counsel that the appeal having been admitted by the learned High Court, the petitioner was entitled to protection by means of an order of stay or suspension of the impugned order of the Rent Controller and the bar contained in section 21 of the Ordinance which provides that "no injunction shall be granted if the appeal has been preferred from the order under section 14" was not attracted in view of the fact that the petitioner had raised the question with regard to the very maintainability of the application on the ground of the disputed premises being non‑residential.

4. We heard the learned counsel and have gone through the order of the Rent Controller. As respects the question with regard to the nature of the property, it was held by the learned Rent Controller that there was an admission on behalf of the petitioner himself that the premises wee residential. This being a finding of fact can only be set aside by the learned High Court on the hearing of the appeal if it is found to be contrary to the record. Any decision at this stage by us would prejudice the respondent and rather tantamount to disposal of the entire rent appeal. Prima facie we do not find anything wrong with the impugned order of the learned High Court. The petition accordingly merits no consideration and is dismissed. A.A./Z‑70/S Petition dismissed.