1985 PLP 1016 (SCMR)

MUHAMMAD AFZAL ZULLAH, J.‑‑Leave to appeal has been sought from judgment dated 25th November, 1984 of the Sind High Court: whereby a Rent Appeal filed by the petitioners‑tenants calling in question ejectment orders on ground of personal requirement and default, was dismissed. The point urged before the High Court regarding personal requirement was that in an earlier proceedings for eviction on this very ground the respondent had failed to establish his bona fide requirement, therefore, the second attempt in this behalf through the present proceedings was unlawful. The plea regarding default in payment of rent, as it appears from the grounds of appeal, was one of denial and assertion that the entire rent had been paid. The first plea was repelled by a learned Single Judge in the High Court by the observation that in the earlier proceedings "no evidence was brought and the order was ex parte" against the landlord. And further that "at no point of time the plea of the landlord for personal requirement was examined on merits except in these proceedings". On the merits of this plea it was‑ observed that the landlord had in these proceedings succeeded in establishing that he was living with his father and that his need for a separate residence was bona fide. And further that the learned counsel for the petitioner appearing in the High Court was unable to show "on what grounds this finding can be reversed" and that the only argument advanced by the .. learned counsel was "that a previous attempt on the part of the landlord to secure possession on the same plea did not succeed". Learned counsel when asked whether there is any provision in the relevant latest law in force in Sind making section 11, C.P.C. applicable or otherwise dealing with the question of res judicata, answered in the negative. He, however, argued that the previous proceedings were not conducted ex parte against the respondent and that his case had been shut out under Order XVII, rule 3, C.P.C. But on this point also whether this rule would be applicable to the proceedings before the Rent Controller so as to legally bar a fresh petition, learned counsel was unable to urge anything. However it is not necessary to examine this technical question any further because it is not denied that the requirement urged in the fresh petition was based on different grounds than these available and urged in the earlier proceedings. On merits regarding the ground of requirement as already noted the petitioner has nothing worth consideration to plead at this stage. Although it appears that the counsel who appeared in the High Court did not specifically press the petitioners tenants' plea regarding payment of rent, during the hearing of the appeal in the High Court yet we with the help and on the insistence of the learned counsel for the petitioners examined it, because as he stated there was some confusion about the fact whether or not this plea was given up in the High Court. But after hearing him with regard to the payments alleged to have been made by the tenants and mentioned in para. 4 of the written statement of the petitioners, learned counsel remained unable to satisfy us that the rent for all the months was in fact paid on time. Even if it is assumed for the sake of argument that same items of payment could be treated as within time on account of the extended confessional period of 60 days, learned counsel admitted that no receipt was placed before the learned Rent Controller with regard to some other period. Thus, the default even if not for the entire period for a lesser period stands established. The ancillary argument of the learned, counsel that if the period is shortened the discretion in directing the eviction on ground of default merits to be exercised in favour of the tenants. This Court ordinarily does not interfere with the exercise of discretion in such like matters. Moreover, the eviction has not been directed on the ground of default only it is also for the bona fide personal requirement of the respondent landlord. And that being so this petition being without; force, is accordingly dismissed. M.I.???????????????????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.