1993 PLP 876 (MLD)

The appellant Jamaluddin is aggrieved with the judgment dated 21‑11‑1991 passed by the IIIrd Senior Civil Judge and Rent Controller, Central Karachi, in R.C. No.458 of 1988 (Old Case No:2908 of 1985) under section 15 of the Sindh Rented Premises Ordinance, 1979 where by the appellant was directed to vacate the premises bearing No.703/10, Liquatabad, Karachi. It is stated by the respondent in the said ejectment application that the appellant is his tenant in respect of the ground floor where the former has been carrying on Hotel business. It is alleged by him that the appellant had negotiated with him for transfer of premises and offered to him 10% of the amount for change of receipt. The appellant also gave advertisement in the daily `Jang' on 19‑8‑1985, offering to sell the said Hotel business so as to transfer the possession of the premises amounting to impairing the value and. utility of the premises. It is further alleged that he requires the premises for his use and occupation and of his children to do some business. The appellant resisted the said ejectment application stating that he had paid Pagree of Rs.1,00,000 in the year 1975 to the respondent whereas tenancy agreement was executed on 29‑6‑1979. It is further alleged by him that he invested a huge amount in installation of gas and electricity. He denied that he had negotiated for the transfer of the premises as alleged or that he got advertisement published in the daily `Jung'. In fact he had issued a contradiction which appeared in the daily 'Mazdoor' on 11‑9‑1985. It was also denied by him that the respondent requires the premises for his own use and occupation or that the value and utility of the premises had been materially impaired in any way. On the basis of the pleadings of the parties the following issues are framed by the learned Rent Controller: ‑‑ "(1) Whether the applicant needs the premises for his personal use and for the use of his children? (2) Whether the alleged transfer of possession amounts to impairing the value and utility of the premises? (3) What should the order be? The respondent produced his attorney Javed Akhtar and witnesses Muhammad Dammer, Shaikh Imranullah and Muhammad Rafiq, whereas‑the appellant examined himself and produced witnesses Kamaluddin and Mahboob Ilahi and Nabi Bux in support of his case. The main thrust of the argument of Mr. M.M. Mehmoodi, learned counsel for the appellant is that the learned Controller had no jurisdiction to admit and hear the said ejectment application which as per the respondent's own showing is a hotel premises and is hit by section 2(h) of the Sindh Rented Premises Ordinance, 1979 which reads as follows:‑‑ "2(h)`Premises' means a building or land let out on rent, but does not include a hotel." Reference was then made to para. 2 of the ejectment application which states `that in the said premises (Ground Floor) of House No.703/10 the opponent had been running Hotel Business." Learned counsel also referred to the agreement enclosed to the ejectment application which also speaks of a Hotel Business at the premises. This position is not disputed by Mr. Usman Ghani Rashid, learned counsel for the respondent but his contention was that this objection was not raised by the appellant before the learned Rent Controller and no issue in respect thereof was framed and it cannot be agitated at the appellate stage. Learned counsel for the parties in support of their contentions placed reliance on Mohanlal v. Ali Muhammad 1982 C L C 2437, Abdul Rehman v. Haji Mir Ahmed Khan and another P L D 1982 Kar. 532, Haji Shaikh Fazal Elahi v. Shams Muhammad Ayub and others 1982 S C M R 8, Abdur Rehman v. Haji Ahmed Khan and another P L D 1983 SC 21, Zafar Ali v. Allah Bachayo P L D 1989 SC 294, Dur Muhammad and others v.Muhammad Oasim P L D 1987 Kar. 273, K.P. Maidoo and another v. Mst. Noor Jehan Begum 1983 C L C 723 and Haji Alam Khan v. Tar Muhammad 1987 C L C

475. First the case of Mohanlal v. Ali Muhammad 1982 C L C 2437 on which Mr. M.M. Mehmoodi, learned counsel for the appellant heavily relies upon may be referred to. In this case the tenant for the first time raised in appeal legal plea of the Rent Controller's failure to appreciate that `premises' as defined under section 2(h) of the Sindh Rented Premises Ordinance, 1979 did not include `Hotel' and so ejectment application being not maintainable, the Rent Controller had no jurisdiction to decide it. A learned Judge of this Court after examining this legal plea held that `such preliminary objection being a question of law touching jurisdiction of Rent Controller could be permitted to be raised in appeal'. According to Mr. M.M. Mahmoodi the appellant in the present case stands on a much better footing as the respondent's own case is that he requires in good faith the demised Hotel premises for which reason the ejectment application was liable to be rejected straightaway by the learned. Controller. Mr. Usman Ghani Rashid, learned counsel for the respondentreferred to an identical case decided by the Supreme Court of Pakistan namely Zafar Ali v. Allah Bachayo P L D 1989 SC 299 in which also as per averment made in the ejectment application, the premises constituted a hotel. No legal objection as to the jurisdiction of the Controller was raised by the tenant. Despite this the Controller ordered eviction of the tenant on the ground of personal bona fide use. In Rent Appeal, the tenant raised the jurisdictional objection in the High Court which reversed the order of the Controller. The Supreme Court in appeal held as follows: ‑‑ "It may be pointed out once again that if the tenant wanted to urge the plea of want of. jurisdiction, he had to move the Rent Controller for framing of such preliminary issue as that parties could produce evidence on the factual question whether the premises were used as a hotel in the true sense of the word. Having failed to urge this point before the Rent Controller, the tenant was not entitled to take this plea for the first time in appeal, to which a factual plea in defence could be taken by the landlord before the trial Court." Following the Supreme Court decision in Zafar Ali's case it is now clear that a tenant cannot be permitted to raise even a jurisdictional objection at the stage of appeal unless he has raised it before the Controller. Now with regard to the merit of the case, the respondent produced Jawed Akhtar, son and his attorney, Muhammad Waheed, Muhammad Dawwer, Shakil Ikramullah, Muhammad Rafeeq, whereas opponent examined himself, his son Kamaluddin, Mehboob Elahi and Nabi Bux. The respondent and all the witnesses took pains to show that the appellant had been negotiating for transfer of the hotel premises to anyone on pugree and for that purpose the appellant had given an advertisement in the daily `Jang' dated 19‑8‑1985. All the witnesses produced by the respondent, other than his son are his neighbours and stated that the appellant had received Biana for the sale of the hotel from the sons of Peerji, to which transaction the Mohalla people objected and intervened. According to the deposition of the respondent's attorney in paras. 6 and 7 of his affidavit‑in- evidence acts of the opponent virtually amount to transferring possession to some other person and further the aforesaid act of the opponent also amounts to impairing the material value and utility of the case property. On the basis of the alleged transaction in which Biana is stated to have been received by the appellant, it cannot be said that the property has been transferred by the appellant to another person. Further giving advertisement for sale of hotel, entering into transaction of sale of the hotel business and the receipt of Biana of sale will have nothing to do with impairing the value and utility of the property. Nothing has also been brought on record to show as to how the value and utility of they property has been impaired. Mr. M.M. Mahmudi, learned counsel for the appellant next referred to alleged personal bona fide requirement of the respondent. According to him, this ground is vague and the respondent has not given necessary details to enable the appellant to set up his defence. It will be useful here to refer to para. 8 of the ejectment application which reads as follows: ‑‑ "

8. That the applicant also requires the said now locked case premises, for his use and occupation and for the use and occupation of his children, to do some business therein. The case premises is no more required by the opponent, since he has closed down his business and is without any justification, keeping the same in his control, under lock and key. Hence this case." In affidavit‑in‑evidence filed by the son and attorney of the respondent it was stated: ‑‑ "That the applicant's son who was in Arabia has come back permanently and the case property is also required by the applicant for his son's own use and occupation to do some business there. The case premises is no more required by the opponent and is without any justification keeping the same in his possession, control under lock and key." What may be seen here is that the ejectment application contains a general statement that the respondent wanted the hotel premises for his use and for use and occupation of his children, without any reference to the number,' of the children, their ages, the nature of the business proposed to be C carried out at the demised premises, the circumstances which gave rise to the said requirement, whereas in the affidavit‑in‑evidence the requirement was confined to the requirement of his son who has come back from Saudi Arabia, once again without any details as aforesaid about him. Perhaps it was for this reason that the appellant chose not to cross‑examine the respondent's attorney as to these details. It is noteworthy that other witnesses for the respondent for the first time disclosed the name of the said son and that he was out of job so as to fill in the lacuna left by the respondent and improves the case but this development is also subsequent to the filing of the ejectment application and cannot be considered. In this regard learned counsel for appellant referred to Hajra Bai v. Aisha Bai 1982 C L C 1444, Mst. Noorunnisa v. Oamarul Haider 1988 C L C 1833, Muhammad Asadullah v. Sughra Begum, 1988 C L C 2078, Sher Bahadur v. Sher Zaman, 1988 C L C 2084 and Messrs Eastern Express Co. Ltd. v. Tariq Hameed P L D 1986 Kar.

84. I am, therefore, of the view that the respondent in bad faith concealed the material facts of the case and failed to furnish necessary details as to his requirement or of his children. The ground must therefore, fail. In the result, the appeal is accepted, but with no order as to costs. H.B.T./J‑150/K Appeal accepted.