2009 PLP 461 (YLR)

SALMAN ANSARI, J.

This petition ha been filed by the petitioner Jalil Ahmed who being aggrieved and dis satisfied with the orders dated 5-8-2006 and 10-3-2007 passed by the Controller of Rent, Faisal Cantonment Karachi, in Rent Case No. 2/2004 filed by the respondent No. 2, Zahid Qureshi, thereby allowed the ejectment application and directed the petitioner to vacate the premises within 30 days and handover the vacant possession to the respondent No.

2. It was the case of the respondent No.2 that he was owner and landlord whereas the petitioner was a tenant in respect of Shop No. 1/A and Half 1/B, Revenue Survey No. 18, Liaquat Bazar near Imperial Cinema, Drigh Road Cantt. Karachi at a monthly rent of Rs. 125 ever since 1997 and the premises were required by the respondent No.2, for his personal bona fide need to establish his own business. That the petitioner had been several times requested to vacate the premises and to realize genuine need of respondent No.2 but all in vain. That the premises were more suitable for the requirement of the respondent No. 2 that in a previous set of litigation matter was of enhancement of rent and no case of eviction was ever made out. The respondent No. 2 is not occupying in the Cantonment area concerned any property or in any other local area in the vicinity for the purpose of his business and no such premises have been vacated by the respondent in the area of vicinity without sufficient cause. The petitioner in his petition has further given his own case that he has filed written statement before the Rent Controller that it had no jurisdiction to entertain the matter as the location of the demised premises were in the local limits of KMC/DMC/CDGK as per notification of Ministry of Defence Government of Pakistan, through notification S. R. O. - 419(I)88 dated 7-6-1988 and the said area had been included by the Government of Sindh, through Notification No. SOVI/6-4/97 dated 28-2-1998 and the Executive Officer of the Cantonment Board has duly handed over the administration area to the KMC vide letter dated 3-1-1993. That the respondent No. 2, was not the absolute owner of the property as the plot in question was leased out in the name of Nizamuddin and the lease has expired and was not renewed either tin the name of said Nizamuddin or any other person, hence respondent No. 2 is not entitled for the said shop for his personal bona fide need. Hence being aggrieved with the rent order the rent order the respondent has filed this petition. It is argued that the order of the Rent Controller is without jurisdiction as the properties are within the local areas of New Iqbalabad which have been excluded in the notification mentioned above of the Ministry of Defence. Further in subsequent notification of the Government of Sindh, area of New Iqbalabad was included in the limits of KMC/DMC East, Karachi and there is letter to the Administrator KMC Karachi, dated 3-1-1993 of the Cantonment Ex. Officer Drigh Road, showing the area of New Iqbalabad along with the other areas to be included and be taken over for the purpose of administration and municipal facilities. Photo copies of all the three notifications have been attached with the petition. A notice has also been referred to of the learned counsel of the petitioner, whereby the area known as New Iqbalabad, Liaquat Bazar near Imperial Cinema, Drigh Road, Karachi, is shown to be excluded from the Drigh Road, Cantonment Board Karachi; hence the Rent Controller of Faisal Cantonment had no jurisdiction to entertain the matter. The learned counsel for the respondent No.2 has denied that the property is situated in New Iqbalabad, the address is of Liaquat Bazar near Imperial Cinema, Drigh Road Cantt, Karachi, which has not been excluded from the cantonment area as per notification produced by the learned counsel for the petitioner and the learned Rent Controller Faisal Cantt. had after providing several opportunities to the petitioner/opponent for cross-examination and his failure to rebut the averments of the application as well as affidavit-in-evidence, allowed the application and ordered the petitioner/opponent to vacate the demised premises. This order was passed on 5-8-2006 and subsequently on 21-2-2007 the petitioner filed an application for recalling the order dated 5-8-2006 after execution application was filed by the respondent No.2. The learned Rent Controller, by his order dated 10-3-2007 dismissed the applications hence, this petition was filed on 8-9-2007 which has been filed as the petitioner failed to file an appeal before the High Court of Sindh within the time provided. Having heard the arguments of the learned counsel for the petitioner and the learned counsel for the respondent, this matter is fixed for Katcha Peshi, hence I would look into the maintainability of this petition considering that under Section 24 of the Cantonment Rent Restriction Act, 1963, any. party aggrieved by an order not being an interim order made by the Controller may within 30 days of such order prefer an appeal to the High Court, no appeal was preferred against the order of the Rent Controller dated 5-8-2006 and subsequently 21-2-2007 an application for recalling the order dated 5-8-2006 was filed along with application under section 5 of the Limitation Act, after more than ,six months of the order, which was dismissed by order dated 10-3-2007 and instead of filing an appeal within time under the Cantonment Act, to the High Court, the petitioner filed this petition Under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 on 8-9-2007, in my opinion, the petitioner has been negligent in pursuing his case and has let a lot of time pass before he woke up to proceed, where the order of the learned Rent Controller, Faisal Cantt., Karachi, is not without jurisdiction no error, irregularity or any perverse finding or clear violation of any provision of law is shown. It would be pertinent to point out that in a letter (copy attached) to the Advocate for the Respondent which is dated 3-4-2000 the Cantonment Execution Officer, Faisal Cantt. had categorically stated that "Liaquat Bazar (where premises are situated falls within the limits of Drigh Road Cantt. now Faisal Cantt. Karachi-8". In a previous spate of litigation between the same parties by order dated 5-4-2003 passed in Rent Case No.1/1995 (photocopy attached) rent was enhanced from Rs. 125 to Rs. 156 p.m. the petitioner had admitted the respondent No. 2 as his landlord but has taken a topsytury stance in his petition regarding the owner/landlord. The petitioner has filed no rent appeal hence to cover the ground lost invoked the writ jurisdiction of the High Court. Hence under such circumstances I, find that this petition is not maintainable, which is dismissed accordingly in limine. S.A.K./J-23/K Petition dismissed.