1978 S (PLP)

GHULAM SAFDAR SHAH, J.‑This leave petition is meant to impugned the judgment of High Court of Sind, dated 4‑4‑1977, by which the Second Rent App at of petitioner herein, against the order of Additional District Judge. Karachi, dated 27‑9‑1975, was dismissed and he was directed to hand over to respondent the vacant possession of the house within three months. The dispute in this case relates to house bearing Custodian No. II‑C -142(4/3), City Survey No. W. O. 6/31, situated in Sawhney Niwas Budding, Adamli Budhabai Street, Bunder Road, Karachi. On 5‑7‑1972 this house was publicly auctioned in favour of respondent for Rs. 4,600 and on 22‑8.1972 its F. T. D. any issued in his favour. It seems that prior to the auction in question an appendix regarding the said house had been issued in favour of petitioner in which the house was valued at Rs. 17,

640. And consequently when he came to know that the house had been auctioned in favour of res pondent he filed in the Department written objections praying therein that the auction should be cancelled. 1n the meantime respondent served on him a notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act. 1958 on 23‑10‑1972 pointing out therein that since the house had been transferred to him in public auction he should pay him rent. But in reply thereto the petitioner repudiated his demand saying that in view of the objections filed by him in the Department, which were still awaiting decision, his title to the house was not final and so he was not liable to pay him any rent. Faced with this situation respondent filed against him an eviction application in the Court of Civil Judge, Karachi, on three counts :‑-- (1) That he defaulted in paying rent (2) That he had damaged the house I and (3) That he required the house in question bona fide and reasonably for his own use. In the written statement filed by him the petitioner not only denied the allegations of respondent but contended that in view of the writ petition filed by him in the High Court, which was pending decision, petitioner cannot claim to be owner of the suit house and therefore, his application was liable to be rejected. Upon the pleadings of the parties; the learned Civil Judge framed in the suit four issues, namely :‑ (1) Whether the request of the applicant for possession of the premises in question for personal use is bona fide ? (2) Whether the opponent is defaulter and, therefore, liable to ejectment summarily? (3) Whether the opponent has made addition or alterations in the said premises without the permission of landlord ? (4) Whether the opponent is not liable to pay rent during the pendency of Constitution Petition No. 1093/73 between the parties in the High Court ? Upon these issues, the parties produced their respective evidence. Preferring the evidence of respondent, however, the learned Civil Judge allowed his application only on the ground that petitioner was a defaulter in paying him rent. Bat in regard to the other three issues, his application was dismissed. Against this order both parties went in appeal to the Court of Additional District Judge, Karachi. But their appeals were dismissed. Being aggrieved, petitioner went to the Court in Second Appeal but his appeal was dismissed. Mr. Bashir Ahmad Ansari, the learned counsel for petitioner has assailed the judgment of High Court on two grounds:‑‑ (1) That in the eviction application filed by him, respondent bad not mentioned the quantum of rent of the suit house and therefore, his application would be incompetent ; and (2) That for the period between 1973‑77, his client had no doubt failed to pay rent to petitioner but this was because of the pendency of his petition in the High Court and consequently the High Court should have exercised discretion in his favour as he was not a wilful defaulter. As to his first contention, reference may be made to para. 6 of the eviction application of respondent in which it is alleged that according to the latest assessment carried out by local authority, the rent of Rs. 240 per annum and on that basis the petitioner was Rs. 240 per annum and on that basis the petitioner was in arrears of Rs.260 which, in spite of demand made on him, he had failed to pay. In this view, the contention of learned counsel is evidently misconceived. As regards the second contention of the learned counsel, he concedes that for thirteen long years (e.g. between 1959‑‑1972) his client had shown complete indifference in regard to the objections filed by him in the Depart ment that the auction of the suit house in favour of respondent was illegal and consequently the same was liable to be set aside. Furthermore when the house. In question was put to auction he again did not raise his little finger although he knew that the house had been put on the auction list. In this respect reference may be made to the judgment of the High Court dated 12‑1‑1977 (a certified copy of which has been placed on the record of the case) In para. 8 of which appears the following observation :.‑ "A period of 12 years, therefore, had elapsed and the petitioner alleged that during all this period he had no notice of such cancellation. On an examination of the documents filed with the petition this allegation of the petitioner stands disproved. As stated above in his application dated 29‑10‑1960, he had admitted that the house in question had been placed on auction list and for which publication in the newspapers had been made. This clearly proves that he had full information about the cancellation of his C. H. Form even on 29‑10‑1960 for without the cancellation of his C. H. Form the property could not have been so advertised foe disposal by public auction." It would thus be seen that after filing his objections in the Department complaining 'that the suit house could not be auctioned in favour of respondent the petitioner went in hibernation. For 13 long years he not only exhibited total indifference in the matter bat also refused to pay to respondent the rent of the suit house. In these circumstances, the petitioner counsel not possibly expect the High Court to exercise discretion in his favour as if he was not a wilful defaulter. The petition therefore, fails and is dismissed. Petition dismissed.