1980 PLP 758 (SCMR)

DORAB PATEL, J.‑The dispute in this petition for leave relates to a shop in Hyderabad, which was owned by one Fazal Karim, now represented by the respondents, who are his legal heirs. On 14‑11‑1969, Fazal Karim filed an eviction application against the petitioner for his eviction on the ground of default in the payment of rent, and on the further ground that he was a tailor, and that he required the shop for running his tailoring business. The Rent Controller dismissed Fazal Karim's eviction application, but Fazal Karim's appeal was allowed by the learned District Judge on 7‑7‑1971, on the ground that Fazal Karim had proved his requirement for the demised premises. The petitioner had, therefore, filed a second appeal in the Sind & Baluchistan High Court against the order of eviction thus passed against him. And, it was during the pendency of this appeal that Fazal Karim died, but the petitioner's eviction had been ordered only, because Fazal Karim had proved that he himself wanted to run his business in the shop. Therefore the respondents as well as the petitioner both filed applications for producing evidence to shout that /the respondents did not need the demised premises, whilst the respondents wanted to produce evidence to show that they required the demised premises for running their business. Unfortunately, the learned Single Judge, before whom the petitioner's appeal came up for hearing, held that the petitioner had not made out any case for producing further evidence, therefore, as he saw no reason to interfere with 'the finding o! the learned District Dodge, he dismissed the petitioner's appeal. Hence this petition for leave. Mr. Muzaffar Hassan conceded that the petitioner was not entitled to produce evidence which was available to him, when he went in the witness‑box before the Rent Controller. But the evidence, which the petitioner wanted to produce, was evidence to show that the respondents did not need the shop for their own requirements. Now, this evidence could not have been produced either in the trial Court, or in the District Court because Fazal Karim was alive and the only question before the Courts was whether Fazal Karim had proved his requirement. But, in the changed situation created by Fazal Karim's death, Mr. Muzaffar Hassan submitted that the petitioner was entitled to produce evidence on the new question which had arisen for determination only in the High Court. He relied on the fact that the respondents also wanted to produce evidence, because they too did not have any opportunity of producing evidence in the lower Courts, because at that time question of their requirement was not relevant. In the circumstances, we were satisfied that the impugned judgment could not stand, therefore, we gave notice to the respondents, and Mr. S. M. Abbas appeared before us on behalf of the respondents, and took time to obtain instructions for respondents. The case was then adjourned to 28‑1‑1980 at his request, and today, learned counsel informed us that he also could not defend the impugned judgment and that both parties were entitled to produce evidence in the new situation created by Fazal Karim's death. We, therefore, convert the petition into an appeal, set aside the judgment of the High Court, and remand the case to the High Court for permitting both parties to produce on the question, whether the respondent are entitled to the demised premises under section 13(3)(ii) of the West Pakistan Urban Rent Restriction Ordinance, 1959. Although, we are aware that evidence may have to be recorded in Hyderabad, we hope that the High Court would be able to dispose of the appeal within six months. The appeal is allowed, but we do not award costs, because of the very fair concession made by Mr. S. M. Abbas that the impugned judgment could not stand. Order accordingly.