1980 PLP 869 (CLC)

S. H. Rizvi for Respondent. Date of hearing : 22cd September, 1979. This appeal is directed against the order dated 20th November, 1978, passed on the rent appeal of the respondent by the learned Additional District Judge, Karachi. 2. The brief facts of the case are that the appellant is the owner of a house bearing No. 252/0, Block 6, P. E. C. H. S., Karachi, where the respondent has been residing as his tenant on monthly rent of Rs. 910 in terms of an agreement dated 25th February, 1974. The appellant was transferred to Karachi in 1975 and he accordingly first made a request to the respondent to vacate the house as the premises were required by him in good faith for his own bona fide use. On the failure of the respondent to vacate the house, the appellant filed an application before the Rent Controller on 17th March, 1976, under section 13(3)(a) of the West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as "the Ordinance"), on the ground that he required the house in good faith for his own occupation. The application was opposed by the respondent on the plea that the appellant had filed the application since his request for the enhancement of rent was refused by him. The learned Rent Controller on the basis of the pleadings of the parties framed the following two issues :- (i) Whether the applicant bona fide requires the premises in question in good faith for his personal use and for the use of his children ? (ii) What should the order be the appellant in his deposition stated that the premises were required by him for his personal residence and for his children. He also stated that he was residing in a rented house No. A-498, Block L, North Nazim abad for which he was paying Rs. 650 per month as rent. This assertion was supported by the production of the rent agreement and the receipt of security deposit. The appellant further stated that he had no other house in Pakistan except the one in dispute As against this, the evidence of the respondent comprise of his own statement and that of a witness Muhammad Usmart. On consideration of such evidence the learned Rent Controller allowed the appellant's application by his order dated 3rd December, 1977. The learned Rent Controller gave a categorical finding that considering the evidence of the parties he was satisfied that the reed of the appellant was genuine, bona de as well as reasonable. The said order of the Rent Controller was challenged by the respondent in appeal which was decided as per impugned order ; whereby the appeal was allowed, the order of the Rent Controller was set aside and the matter was remanded for fresh determination to the Rent Controller after framing the following issues :-- (i) Whether the landlord/applicant is not occupying any other residential building suitable for his need at the time in the same urban area in which the building in question is situated ? (ii) The landlord/applicant has not vacated such a building without such sufficient cause after commencement of the Rent Restric tion Ordinance in the said urban area, 3. Mr. Abdul Matin, learned counsel for the appellant, contended that the issue (1) framed by the learned Rent Controller was in accor dance with the provisions of section 13(3)(a) of the Ordinance and fully covered the pleadings of the parties and therefore the direction given by the learned Additional District Judge for framing two fresh issues, and remanding the case for retrial was not only unwarranted on facts but also in law. In this connection he placed reliance on a judgment of this Court in the case of Punjab Hardware and Machine Tools Limited v. Wazir Ali (P L D 1976 Kar, 233). It was held in that case that the proceedings before the Rent Controller were of a quasi-judicial nature and as such obser vance of technicalities of law should not be accepted. It was, further held that the plea of requirement of premises in good faith for personal use covered the other elements of sub-clause (ii) of subsection (3)(a) of section 13 of the Ordinance. It may be mentioned that in that case the premises in dispute were non-residential whereas in this case the relevant clause applicable in sub-clause (i) of subsection (3)(a) of section 13 of the Ordinance and the two sub-clauses (i) and (ii) of subsection (3)(a) of section 13 are almost pari materia. The learned counsel for the appel lant further placed reliance on a Supreme Court judgment in the case of Abdus Salam Akhtar v. Dr. Najam Pervez (1976 S C M IR N). The contention advanced in that case that since the landlord was living in a rented premises he was in occupation of another residential building suitable for, his needs in the same urban area and, therefore, he was not entitled to evict the tenant, was repelled. It was held that the requirement of section 13(3)(a)(i)(b) of the Ordinance, that the landlord was not occupying another residential building, suitable for his needs, did not extend to cover the rented premises because otherwise the result would be that no landlord would be able to get his own house vacated for his personal requirement unless it was shown that he was actually on the streets and had no place to live at all. This judgment of the supreme Court clinches e the issue. In the circumstances the order of remand passed by the learned Additional District Judge cannot be sustained. 4. Mr. S. H. Rizvi, learned counsel for the respondent, contended that the appeal was not maintainable as the same was directed against the order of remand. This issue stands covered by a judgment of this Court reported in P L D 1976 Kar. 811 where it was held that an appeal was maintainable against an order of remand passed by a District Judge, Mr. Rizvi relied upon a judgment of the Supreme Court in the case of Ibrahim v. Muhammad Hussain (P L D 1975 S C 457). The said judgment is not applicable because in that case the point in issue was with regard to the maintain ability of an appeal against an interlocutory order of provisional character made under the first part of section 13(6) of the Ordinance, which did not necessarily result in striking off the defence and order of ejectment. 5. For the reasons mentioned above, the appeal is accepted and the order of the learned Additional District Judge dated 20th November, 1978, is set aside and the case is remanded to him for deciding the appeal of the respondent on merits within three months. There will be no order as to costs. M, Y. M, Appeal accepted.