1999SCMR2612 (PLP)

AJMAL MIAN, C.J.

By this common order, we intend to dispose of the above two petition's which are directed against the orders both dated 16-9-1997 passed by- a learned Single Judge of the High Court of Sindh in First Rent Appeals Nos. 61 of 1995 filed by the petitioner against the order dated 12-12-1994 and 28-3-1995 of the learned Vth Senior Civil Judge/Rent Controller, Karachi (South) In Rent Case Nos. 1305 of 1993 and 1841 of n1992 respectively granting ejectment on the ground of default for the periods mentioned therein dismissing the same by marinating the above ejectment order. The petitioner tenants have therefore filed the present petitioner for leave to appeal.

2. In support of the above petitions Mr. Ansar Hussain learned counsel for the petitioners have vehemently contended that since the suit tenement was gifted by the respondent s father to him and as no notice under section 18 of the Sindh Rented Premises Ordinance, 1979, hereinafter referred to as the Ordinance, was served by the respondent upon the petitioner, no ejectment order could have teen passed on the ground of default, He has invited our attention to ,the following admission on the part of the respondent in his cross-examination. "After the gift of property by my late father to me I did not send any intimation to the tenant that I have also become one of the co-owner, of the property. Vol. says that I do not know if such intimation sent by my father to the opponent. " On the other hand, Mr. Badrudduja, learned Advocate Supreme Court for the respondent/landlord, has contended that the above contention is devoid of any force inasmuch as the father of the respondent did not give the gift of the entire property but had given gift of certain portion thereof to the respondent and two other children and, therefore, the respondent as one of the co-owners was competent to file the aforesaid rent cases without serving any notice under section 18 of the Ordinance. His further submission was that in the written statement, the petitioner admitted the factum that the respondent was one of the co-owners of the suit tenement and had filed the rent cases in that capacity. He also submitted that the above contention was not raised either before the Rent Controller in the written statement or during the arguments, nor this was agitated before the High Court.

3. In order to appreciate the above contentions, it may be pertinent to reproduce 'para. 1 of the aforementioned rent case and para. 1 of the written statement, which reads as under:-- (1) The applicant is one of the landlord/owner of the building bearing No. M.R. 2/38, situated at 218 Marriot Road, Karachi." "(1) With regard to the contents of para. 1 of the applicant, it is respectfully submitted that the opponents were inducted by late Younas Bhai in the premises in dispute and after his death the applicant and other legal heirs became joint owners and landlords of the premises in dispute."

4. From the above-quoted para. 1 of the memo. of rent case and the written statement it is evident that the respondent had averred in para. 1 of the memo of rent case that he was one of the landlords/owners of the building, which averment was admitted by the petitioner in the afore-quoted para. 1 of the written statement. In view of the above factual position it is not open to the petitioner to urge that the respondent was the sole owner of the building in question or that he was obliged to serve a notice under section 18 of the Ordinance, particularly in the absence that this point was not even agitated in the arguments before the Rent Controller and the High Court.

5. The above alleged admission on the part of the respondent to his cross- examination as to the gift, it will suffice to observe that a party can ask question in the cross-examination according to the pleadings and not on an issue which is not agitated and which in fact has been admitted contrary to which has been suggested in the cross-examination

6. The aforesaid admission has no legal sanctity. The petitions have do merits. Leave is refused. Since the subject-matter is a small business premises, with the consent of the learned counsel for the respondent, Mr. Barudduja, we allow one year time to the petitioner to vacate the suit premises on the condition that he shall continue to pay rent regularly during the above period of one year and that in case the petitioner fails to hand over the vacant possession on the expiry of above period of one year, the learned Rent Controller shall issue a writ of ejectment with police aid without any further notice to the petitioner. H.B.T./F-44/SC Order accordingly.