1998 PLP 1361 (SCMR)

SALEEM AKHTAR, J.

The petitioner seeks leave to appeal against the judgment of the learned Judge in Chamber whereby the ejectment order passed by the learned Controller was affirmed in appeal.

2. The petitioner is the tenant in respect of Property bearing Nos.8/54 and 8/55 measuring 2000 square yards situated at Darul Aman Cooperative Housing Society, G.D. Qureshi Road, Karachi at a monthly rent of Rs.39,600, which was owned by Najamuzzaman and others. The tenancy agreement between them was for the period from 1-1-1990 to 31-12-2014. The respondent purchased the disputed premises in an auction held by the High Court of Sindh. The respondent served a notice dated 22-3-1993 requiring the petitioner to vacate the premises as it had defaulted in payment of rent from February 1993 to June 1993, that it was required for personal bona fide need of the respondent and that unauthorised alterations had been made. According to the petitioner, this notice was received on 17-4-1993 as held by the High Court. A reply was sent denying all the charges and stating that the rent for four months (February to June 1993) had been paid to the previous landlord before the service of notice. The respondent filed ejectment application on the aforestated grounds, which was resisted by the petitioner and all allegations and grounds for ejectment pleaded therein were denied. The learned Controller granted ejectment only on the ground of defualt in payment of rent. The petitioner filed First Rent Appeal in the High Court where the only question to be considered was in respect of default in payment of rent. The petitioner also filed an application under Order XLI rule 27, C.P.C. read with section 21 of the Sindh Rented Premises Ordinance seeking permission to file documents, namely, rent receipts dated 12-1-1993 and 12-4-1993, copy of the deposit receipt of the bank dated 15-4-1993 and copy of the statement of account of the previous owner issued by the Habib Bank Ltd. This application for producing additional evidence was dismissed and the learned Judge in Chamber held that the petitioner has committed default in payment of rent.

3. The learned counsel for the petitioner contended that on question of default in payment of rent petitioner's witness was not cross-examined and further that the petitioner did not have the knowledge of transfer of the premises to the respondent till 22-3-1993 when notice was served by the respondent. Therefore, the payment made earlier to the receipt of notice to the previous landlord was a valid payment and no default was committed by the petitioner. The learned counsel for the petitioner further contended that under section 21 of the Sindh Rented Premises Ordinance the learned Judge in Chamber ought to have admitted the additional documentary evidence, which was of unimpeachable character. Reliance has been placed on Iftikhar Hussain Khan of Mamdot v. M/s Ghulam Nabi Corporation Ltd. (PLD 1971 SC 550). Leave is granted. The operation of the impugned judgment is stayed. M.B.A./B-11/S Leave granted.