1990 PLP 989 (CLC)

Nisar Ali for Respondent. Date of hearing: 18th December 1989. This appeal is directed against the order dated 20‑2‑1989 passed by IInd Senior Civil Judge and Rent Controller, Karachi, East in Rent Case No. 2796/1982. Masoom Ali Oureshi, the landlord of a shop bearing No.l, Quarter No.l, Block 71, Area 4‑A, Landhi Colony, Stop No.4, Karachi had filed an ejectment application under Section 15 of the Sindh Rented Premises Ordinance, 1979, seeking ejectment of his tenant Abubaker on all possible available grounds for ejectment under the law. The Rent Controller after trial of the rent application ordered the ejectment of the tenant as he had converted the use of the premises and damaged the property. It was also established that the landlord needed it for personal use. Mr. S.1i. Rizvi, Advocate for the appellant contended that evidence on record is not sufficient to warrant the ejectment of the tenant on any of the above grounds. The appellant instead of doing the business of selling provision was doing business of Sweetmeat. According to him such a change will not render him liable for ejectment under section 15 (2) (iii) (b) of the Ordinance. Admittedly the appellant had added a Chabootra in front of the shop which has not in any way impaired the value of the premises. The landlord had also failed to prove his bona fide personal use strictly by any reliable evidence. Mr. Nisar Ali, Advocate appearing for the respondent pointed out that the Rent Controller has recorded his finding against the appellant in respect of the First Issue, "Whether the opponent has committed default in payment of rent and electric charges?" The Rent Controller recorded his finding on Issue No.1 reproduced above in the following words:‑ "Issue No.l‑‑Since the applicant has not filed any application under section 16 (1) of the Sindh Rented Premises Ordinance, 1979 therefore, this issue needs no further discussion and it is answered accordingly." In view of his such conclusion the ejectment of tenant was not ordered on the ground of default although evidence was brought on record in support of that issue. He further complained that the Rent Controller did not advert to the averment regarding subletting of the premises which was specifically pleaded by the respondent in his application for ejectment of the appellant. Mr. Nisar Ali, Advocate for the respondent also contended that although he had not filed an appeal against the order impugned in this appeal agitating the aforementioned two grounds and had also not filed cross‑objections he can still support his case on the basis of his pleadings and evidence on record and seek dismissal of the appeal on these grounds. Reliance has been placed by him on 1984 CLC 2554. As regards the first contention of Mr. Nisar Ali, Advocate for the opponent I find that the conclusions arrived at by the Rent Controller on Issue No.1 as reproduced above cannot be sustained in law. In a rent case if the landlord omits to file an application under section 16 (1) of the Ordinance seeking determination of arrears of rent and deposit thereof in the Court it cannot be assumed on that basis that the tenant did not commit default in payment of rent and was also not in arrears. Although in view of the law laid in. 1984 CLC 2554 a non‑appealing respondent can always support his case as agitated by him in the trial and seek IE decision in appeal but it will always be fair in such circumstances to return the case to the trial Court for deciding it afresh. In view of the position as stated in the preceding paragraphs I find that this is a fit case wherein the impugned order be set aside in the interests of both the parties and case remanded to the Rent Controller to decide all the issues afresh on the available evidence or any additional evidence which he may permit the parties to adduce in support of their respective cases. The order impugned in this appeal is, therefore, set aside, appeal allowed and the case remanded to the Rent Controller for deciding it as indicated. It has been pointed out by Mr. Nisar Ali, Advocate for the respondent that this is an old case and needs to be decided expeditiously. The Rent Controller shall take up this case out of turn and decide the matter within 6 months from today. No notice of first hearing will be issued to the parties as both of them have consented to appear before Rent Controller on 6th January, 1990. H.B.T./A‑756/K Appeal allowed/Order accordingly.