1. ' ZAFFAR HUSSAIN MIRZA J.-Petitioner being aggrieved by orders of his eviction from premises comprising a building .Constructed on Plot No, G-19/3 Block 9, K DA Scheme No, 5, Clifton, Karachi, which was let out to him by the respondent, for residential-cum-commercial purpose seeks leave to appeal against the judgment of a learned Single Judge of Sind High Court dated 15-9-1983.
2. ' The material facts leading to this petition are that by a written agreement of lease executed between the parties on 3-9-1976, the said premises was demised in favour of the petitioner 'for a period of one year commencing from 6-6-1976 and ending on 5-6-1977'. There was also a stipulation contained in the agreement whereby according to the contention of the petitioner the tenancy could be. Construed to have automatically extended for a further term of one year, if the lessee did not inform the lessor by written notice by a specified date that he did not wish to continue the lease. The proceedings commenced on an application by the 'husband of the respondent, on 7-9-1977 before the Martial Law Administrator, Zone 'C', Karachi, under M.L.O. 20, which resulted in an order of eviction against the petitioner passed by the President Summary Military Courts. B, vide his order dated 19-11-1977. The petitioner, being aggrieved by this order filed a Constitutional petition before the Sind High Court seeking to challenge the legality of the order.
3. However, pending the disposal of the Constitutional petition, the Military Courts (Validation of Orders) Ordinance, 1980, was promulgated the effect of which was that the order passed by the Military Court under M.L.O. 20, was deemed to have been passed under the Sind Rented Premises Ordinance, 1979 and an appeal was provided therefrom to the High Court, It is pertinent to state at this stage that the respondent had also filed a fresh eviction application before the Rent Controller, which was registered as No, 3939 of 1978 in which also an order of eviction was passed against the petitioner.
4. ' The petitioner filed appeals separately against both the orders of eviction in the High Court of Sind, Karachi, in which by consent of parties vide separate orders dated 4-6-1981, the eviction orders were set aside and cases remanded to the Rent Controller for fresh decision with a direction that the learned Rent Controller will give opportunity to the parties to produce evidence in respect of their respective cases, before deciding the case'.
5. ' When the two cases were received by the Rent Controller No, XVI, Karachi the parties were given opportunity to produce evidence but the respondent withdrew her ejectment application subsequently filed bearing No, 3937 of 1978 and it was dismissed as withdrawn by order dated 24- 2-1982, leaving only the ejectirient proceedings commenced under M.L.O. 20 for adjudication. After hearing the evidence of the parties the learned Rent Controller, vide his order dated 27-3-1982 dismissed the ejectment application. He upheld the objection of the petitioner that the application before the Martial Law Authorities on which the proceedings for eviction were initiated, having been moved by the husband of the respondent and not by the respondent herself, the entire proceedings were null and void. The learned Rent Controller, notwithstanding his view on the legal plane with regard to the maintainability of the proceedings, proceeded to examine the case on merits and reached the finding that the respondent had failed to substantiate her plea for bona fide personal requirement of the premises.
6. ' Feeling aggrieved by the rejection of her plea for eviction of the petitioner, the respondent preferred an appeal under section 21 of the Sind. Rented Premises Ordinance, 1979, before the Sind High Court which was allowed by the impugned judgment in this petition, whereby the order passed by the Rent Controller was set aside and the petitioner was directed to hand over possession of the disputed premises to the respondent within for months.
7. ' Mr. Z. U. Ahmed challenged the judgment of the High Court mainly on two grounds, namely, that the proceedings before the learned Rent Controller not having been filed by the respondent as the landlady but by her husband in his own right, the same were not maintainable and that even otherwise the evidence produced on behalf of the respondent did not prove that she required the premises in good faith for her own use or that of her family. In connection with the first contention the learned counsel referred us to the letter dated 7-9-1977 addressed by Mr. W. A Kirmani, the husband of the respondent/landlady to the Martial Law Authority in which it was requested that the premises in dispute may be got vacated immediately 'so that we move in there and in turn surrender Government accommodation'. In this Mr. Kirmani, who was at the relevant time serving the Provincial Government in the capacity of Secretary, Wildlife and Forest Department had stated that he had built this house and that "we always wanted and desire now to move to or own house and surrender the Government accommodation". A reminder was sent as a follow up by Mr. Kirmani by his letter dated 15.10-1977 in which, according to the learned counsel, he changed his position, by stating that the house was jointly owned by him and his wife (the respondent). On the basis of these statements the plea taken by the petitioner was that the proceedings were initiated at the instance of Mr. Kirmani who was in law not competent to apply under M.L.O. 20 and consequently the entire proceedings were vitiated. As earlier stated this objection was upheld by the learned Rent Controller but the learned Single Judge in the High Court did not accept this plea and held that M.L.O. 20 in terms permitted "persons concerned" to apply thereunder for eviction of a tenant on the specified grounds, which term was wide enough to include the husband of the landlady. Reference was also made by the learned counsel to the statements made by Mr. Kirmani and the respondent in their evidence before the Rent Controller to the effect that Mr. Kirmani was not authorised by the respondent to make the application on her behalf but that he moved the Martial Law Authorities with her concurrence. It was vehemently argued by the learned counsel that M L.O. 20 contemplated adjudication of a dispute between landlord and tenant, and that the words "persons concerned" have reference to these categories of persons and none other than them.
8. However we find no force in this contention. It is an admitted position that the respondent was impleaded as the sole party in the appeal filed by the petitioner against the eviction order passed by the Military Court under M.L.O.
20. It is also an admitted position that the order of remand referred to above was passed with the consent of parties, whereby the whole case was remanded to the Rent Controller for fresh decision after recording evidence of the parties. Even in the Constitutional petition filed by the petitioner, respondent Mrs. Kirmani was admittedly the sole party impleaded besides the Military Court. Not only that but when the case was remanded for re-trial to the Rent Controller, an application on behalf of the respondent urging the same grounds of eviction was submitted which would have the effect of curing the defect in the proceedings, if any. Reference may also be made to the fact that in the application of the husband of respondent under M.L.O. 20 it has been clearly mentioned that the agreement of tenancy was signed by the present respondent. Clearly, therefore, the Summary Military Court was seems to be fully aware of the fact that Mr. W.A. Kirmani had submitted the application for and on behalf of the landlady, namely, the present respondent, which is clear from the fact that the order passed by the Summary Military Court dated 19-11-1977 directed the petitioner to hand over vacant possession of the premises in question "to Mrs. Jehan Kirmani wife of W.A. Kirmani". The position that emerges from all these circumstances is that the Military Court no doubt as to who were the parties to the dispute before it, the order eventually passed by it outside the scope of M.L.O. 20 and in all subsequent proceedings the petitioner himself regarded the dispute to be with the present respondent which is why he totally excluded Mr. W.A.
9. Kirmani from all those proceedings. When the petitioner gave the consent for the remand of the case he clearly accepted the position that the proceedings on remand will be between himself and the respondent and the respondent did in fact place on record her own application before the Rent Controller in the remand proceedings. The respondent personally appeared as a witness in support of her case and was fully cross-examined on behalf of the petitioner.
10. ' In these circumstances no prejudice has been caused to the petitioner as he was fully aware of the claim of the respondent throughout the proceedings relevant for the present purposes.
11. There is another aspect of the case which may also be adverted to at this stage. Section 105(2) of the Code of Civil Procedure lays down the principle that if an order of remand is not challenged by way of appeal by a party, he shall thereafter be precluded from its correctness. The clear import of the order of the High Court was that the dispute between the petitioner and the present respondent who were the only parties to the appeal would be decided afresh by the Rent Controller to whom the case was remanded. It may be re-called that this order of remand was passed with the consent of parties and the petitioner has raised the question about the maintainability of the proceedings which was available to him at that stage. This being a consent order the question of filing an appeal, therefore, does not arise but by the very fact the order, whatever its effect was binding on the petitioner in all subsequent proceedings. It is not necessary to pursue this matter any further as to the question whether despite the unchallenged order of remand, the petitioner was entitled to raise the legal objection as to the maintainability of the proceedings in the remanded proceedings, because there is another principle which seems to have been attracted debarring the petitioner from doing so. It is well-established that a party who invites the Court to adopt the particular procedure or to take a particular step in the proceedings, cannot turn round and question the legality of such procedure or step subsequently. Both in law and on facts, therefore, we are of the opinion, that the petitioner is merely pressing a technical objection to the maintainability of the proceedings as for all intents and purposes the proceedings for eviction were at the instance of the respondent.
12. As to the merits the glaring undisputed fact on the record is that the respondent does not have any other premises of her own in the concerned urban area. She is putting up alongwith her husband who had been provided Government accommodation in his capacity an employee of the Sind Government. The learned Judge in the High Court has stated that Mr. W. A. Kirmani has since been transferred to Islamabad and the official residence in his occupation in which his family including the respondent were living, has been allotted to another Provincial Secretary. Mr. Ahmed took exception to the consideration of these facts as according to him they were not brought on record in the evidence and, therefore, an affidavit submitted in support of application for early hearing of the appeal before the High Court. He, however, did not dispute before us the correctness of the fact that Mr. Kirmani has been transferred to Islamabad and has indeed retired from Sind Government but stated that he has been given extension in service. On the other hand it was argued on behalf of the respondent that the High Court acting on the affidavit in question containing the facts mentioned heard the application for early hearing and in any case the appellate Court was competent to take into consideration additional evidence or hold a further inquiry as provided under section 21(3) of the Sind Rented Premises Ordinance, 1979. We however, consider that it is not necessary to go into this controversy. On admitted facts the respondent does not own other premises of her own at Karachi and as disclosed by her in her evidence several children of hers are pursuing their studies at Karachi, therefore, her claim for personal requirement seems to us to be fully substantiated. It is well-established that a landlord has a preferential right to occupy his own premises even if he is occupying other accommodation on rent or otherwise, if the same does not belong to him.
13. ' Mr. Ahmed, however, emphatically contended that even from the evidence on record it is clear that the demand of the respondent for personal occupation of the premises is not in good faith. In this connection he referred us to the evidence of the respondent in which, according to the learned counsel she had admittedly offered to continue the tenancy of the petitioner provided he paid enhanced rent at Rs, 5,000 per month instead of Rs, 2,900 per month has, however, been drawn by the learned counsel for the respondent caveator to Article 11(7) of the lease agreement which in effect provided that on termination of the tenancy in terms of the agreement, if the lessee was unable to vacate the premises on the due date, then after allowing a grace period of three months, he shall be liable to pay monthly rent of Rs, 5,000 for any additional period. Keeping this term in the context of the statement of respondent, her learned counsel contended that she had never given up claim for personal requirement, but had in mind her right to claim this amount for any additional period during which the petitioner continued in occupation after the expiry of the tenancy period. The context in which the statement of Mrs. Nur Jeban Kirmani relied upon by the learned counsel for the petitioner was made may be usefully reproduced as under:- "It is incorrect to suggest that I had demanded increase in the rent to the tune of Rs, 5,000 per month. It is not a fact that on that refusal of the opponent, I filed this case-voluntarily says in fact the opponent had desired to continue with the occupation of the premises and upon his intention being known to me I told him that he could also provided he pays Rs, 5,000 as rent."
14. ' Reading this portion of the statement as a whole we are persuaded to agree with the submission made on behalf of the landlady that she had not given up her case for personal requirement. This is clear from her emphatic denial that she had demanded increase in the rent to Rs, 5,000 per month or that upon the refusal of the tenant to pay the same she had filed the case for ejectment.
15. In these circumstances we are satisfied that the case of the respondent for personal requirement otherwise independently established, is in no way destroyed by her statement voluntarily made that the tenant desired to continue the tenancy on enhanced rent.
16. ' In view of all the foregoing reasons we find no merit in this petition which is accordingly dismissed.
17. The parties have, however, agreed that the petitioner be allowed to vacate the residential portion of the disputed permises as described in the tenancy agreement dated 30-8-1976 on or by 27-1- 1984 and the rent of the premises within two months from this date. We order accordingly subject, however, to the petitioner paying the rent in terms of the tenancy agreement.