' This second appeal under section 15(4) of the Sind Urban Rent Restriction Ordinance, 1959 (hereinafter called the Ordinance), is directed against the common judgment, dated 4th June. 1983 passed by the learned VIIth Additional District Judge, Karachi, in Rent Appeals Nos. 482 and 549 of 1977, whereby he dismissed the Appeal No. 482 of 1977 against the order, dated 15th November, 1977 passed in Rent Case No. 20 of 1964.
' The facts giving rise to this appeal briefly stated, are as follows :-
2. The respondent is the transferee of the evacuee property No. 1/4 of R. B. 3/G, Rambagh Quarters, Karachi, under provisions of the settlement laws of which Yousuf Ali Muhammad, the predecessor- in-interest of the present appellants, was the recorded tenant. On 11th July, 1960 the respondent served notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, which notice was already received by the said Yousuf. The said Yousuf sent a reply through his Advocate Mr. Jan Muhammad Dawood. On 1st August, 1963 the respondent filed an ejectment application on the grounds of default, subletting, committing acts as are likely to impair materially the value or utility of the building and also on the grounds of personal use and occupation. The notice was duly served. The widow of the said Yousuf filed an application under Order 1, rule 10, C. P.
C. Mentioning therein that the said Yousuf died long ago. The intervener was treated as opponent by an order, dated 9th October, 1983. The written statement was filed by her. She denied the allegations made in the application and averred therein that she was ready and willing to pay the rent at the rate of Rs, 19 per month. She died on 26th January, 1974 and her legal heirs were brought on record by an order, dated 3rd March, 1976. The present appellants filed written statement. They also filed an application for additional issue, namely, that the application was not maintainable and the application for ejectment is bad for want of notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. Respondent examined himself as witness and the appellant No. 3 was examined on behalf of the appellants. The learned Rent Controller, after recording the evidence of the parties and after hearing the learned Advocates of the parties, by his impugned order, dated 15th November, 1977 allowed the application. Appellants filed appeal before the District Judge, Karachi, which was ultimately transferred to the Court of the learned VIIth Additional District Judge, Karachi. The respondent also filed an appeal against the impugned order of the learned Rent Controller.
3. Against the impugned order of the learned Rent Controller the respondent filed an appeal being Appeal No. 549 of 1977 which was allowed and the learned Appellate Authority determined Rs, 40 per month as against Rs, 19 adjudged by the learned Rent Controller. The appeal of the appellants was dismissed and the appellants were directed to put the respondent/landlord in vacant possession of the disputed premises within two months on the ground that the same was bona fidely required by the respondent/landlord.
4. The appellants being aggrieved by the impugned judgment, dated 4th June, 083 of the learned Appellate Authority, have preferred this second appeal, on the grounds mentioned in the memo. Of appeal.
5. Mr. S. Irtiza H. Zaidi, learned counsel for the appellants, has urged the following contentions :-
(i) The ejectment application against the recorded tenant is nullity in law.
(ii) The ejectment application is bad for want of notice under section 30 of the Displaced Pensons (Compensation and Rehabilitation) Act, 1958.
(iii) The impugned judgment of the learned VlIth Additional District Judge, Karachi, is not in accordance with law.
(iv) The finding of the learned Lower Court that the premises are required by the respondent bona fidely and reasonably for his personal use and occupation is erroneous.
(v) The detremination of the rate of rent at Rs, 40 as against Rs, 19 is erroneous.
6. On the other hand, Mr. Muhammad Saeed Qureshi, learned counsel for the respondent has urged that, the ejectment application is not nullity in law. The ejectment application is not bad for want of notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act 1958, as the landlord served a notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 to Yousuf Ali Muhammad. The impugned judgment of the learned VIlth Additional District Judge, Karachi, is in accordance with law. The finding of the learned below Courts is not erroneous. The determination of rate of rent Rs, 40 is not erroneous.
7. As regards to the contention No. 1 that the ejectment application is nullity in law, the learned counsel for the appellants has contended that, the ejectment application was filed against the dead person as such it is nullity in law. The learned counsel for the respondents on the other hand in reply, has urged that the respondent was not aware about the death of Yousuf Ali as the notice which was served under section 30 of the Displaced Persons (Compensation and Rehabilitation)
Act, 1958, was not only received by him but he sent a reply through his Advocate Mr. Jan Muhammad Dawood which is on the record. This fact is not denied by the learned counsel for the appellants. The widow of Yousuf filed an application as an intervenor and she was impleaded by consent of the parties as the opponent by an order, dated 9th October, 1983. She filed the written statement in which she never raised any objection about the maintainability of the application. The application for impleading as an opponent was moved by the widow which was allowed by consent of the parties. The said order was not recalled subsequently. I am of the view that, the mistake can be rectified by allowing the amendment of the application and by bringing legal representatives of the deceased on the record if the mistake is bona fide. I am of the view that, such an application is not a nullity ; the Court has the power at any stage to expunge the name of the person who is dead and also to sub-stitute the name of the legal representatives. I am fortified in my conclusions reach as above by the principle laid known in the case of Seth Gordhandas Vishandas v. Rijhibai and others (1) wherein it is observed as follows :- "If the plaintiff being ignorant of the death of Pamanmal joined him as a party to the suit, he was in no worse position than that in which he would have been he failed to join Pamanmal if alive. He could at any time before the period of limitation for instituting the suit against Pamanmal join Pamanmal if he was alive and could likewise join the persons who had succeeded to his estate if he was dead."
' His contention is that the ejectment application against a dead person was a nullity in law. This plea is completely misconceived and contrary to the facts on record. The heirs were brought on record in 1963 while the ejectment order was passed on 15th November, 1977. In view of what has gone above, I find no force in the plea of the learned counsel for the appellants that the order was passed against a dead person.
8. As regards want of notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (XXVIII of 1958), the learned counsel for the appellants has urged that no notice under section 30 was served on the recorded tenant as such the application is not maintainable. On the other hand Mr. Qureshi has urged that section 30 notice was served on the respondent/tenant and he had also sent a reply though his Advocate. The learned counsel for the appellants over-looked the notice and the reply. This ground which, in my opinion, has been overlooked by the Courts below as well as by the learned counsel for the parties before me is the effect of repeal of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 by Evacuee Property and Displaced Persons Laws Act (XIV of 1975) which was completely repealed by the Act. This question has been considered by a Single Judge of this Court in Second Appeal No. 162 of 1980, decided on 9th November, 1980 which was followed by an other Single Judge of this Court in the case of Gangoomal v. Jamat Mal (2). I am in respectful agreement with these decisions of this Court, and a such I find no force in the contention of the learned counsel for the appellants and I hold that the ejectment application was competent.
(1) AIR 1937 Sind 47 (2) 1982 CLC 731 I am also fortified in my conclusions reached as above by the principle laid down in the case of Muhammad Ramzan v. Ch. Bashir Ahmad (1) and in the case of Mst. Jaleesa Begum v. Lqbal Ahmad Qureshi (2) wherein it was held that with the repeal of the Repealed Act the protection itself disappeared. Mr. Zaidi has not disputed this legal position laid down in these decisions of the Supreme Court and this Court. In view of the above discussion, I do not find any force in this plea.
9. The learned counsel for the appellants has urged that the judgment, dated 4th June, 1983 of the learned Appellate Court is no judgment in the eye of law.
10. The respondent had approached the Rent Controller for ejectment on various grounds covered by section 13 of the Sind Urban Rent Restriction Ordinance, 1959. Evidence was adduced by the parties in the Court of the learned Rent Controller, and all the points were canvassed at great length but the learned VIIth Additional District Judge, Karachi had not made even a passing reference either to the evidence or to the correctness of the findings on the issues of bona fide requirement of the respondent.
11. The learned counsel for the appellants has urged that the learned First Appellate Court is a final Court on the question of fact and when it has failed in its duty, the judgment would be patently erroneous on the face of it. While meeting his argument Mr. Qureshi, learned counsel for the respondent/landlord has tried to persuade this Court that ignoring all aspects, if the landlord was to convince this Court on a ground of bona fide personal requirement of the respondent/landlord, who is living in one room with his wife and divorced daughter. The respondent has asserted in his application and appeared in witness-box and fully supported the statement in his application and is not shaken in cross-examination and the impugned order of the learned Rent Controller and the impugned judgment of the learned VIIth Additional District Judge, deserve to be maintained. The case is under provisions of section 13(3)(i)(a) of the Sind Urban Rent Restriction Ordinance, 1959, but the appellant/tenants have not qualified to the protection thereof and if the respondent/landlord can, on the record as it stands, show that these facts are fairly established, there is no necessity to set aside the judgment of the learned VIIth Additional District Judge, or make an order of remand as pressed into service by Mr. Zaidi.
12. The arguments advanced by Mr. Qureshi, learned counsel for the respondent do possess the merit of plausibility and to a certain extent may sound attractive on first impressions. But the question is when this Court sitting in exercise if its power of superintendence and when it is shown that the judgment of the First Appellate Court has failed to comply with the legal requirements, whether it should be sustained by this Court, looking into the facts and arrogating to itself the role of a fact finding Court. The judgment of the First Appellate Court has to set out points for determination, record the decision thereon and give its own reasons for the said decision.
13. While winding up his arguments, Mr. Qureshi, learned counsel for the respondent has submitted that the present second appeal be kept
(1) PLD 1981 SC 340 (2) PLD 1982 SC 396 pending and the learned VIIth Additional District Judge, be directed to rehear the arguments on Issue No. 5, and to record his findings on the said Issue and to certify the findings. It was contended by the learned counsel for the appellant that the impugned judgment of the learned VIIth Additional District Judge, is not in accordance with the Order XLI, rule 31, C. P. C. As it does not indicate the reasons. It may be noted that the learned VIIth Additional District Judge, has given the following reasons in the impugned order :- "So far the remaining issue regarding the personal use of the appellant is concerned the ejectment has been already ordered by the Rent Controller No. 2 in the year 1977. Sufficient time has been elapsed to condone six years times of entitlement of the opponents for ejectment from the date of notice under section 30 of Displaced Persons Act, 1958 which was served on the predecessor Yousuf. Accordingly the Appeal No 482/77 stands dismissed."
14. Counsel appearing for the respondent states that it is unnecessary to remand the case to the learned VIIth Additional District Judge, as all the evidence were already on record and I can decide the appeal myself. This being so, it is no use to pass an order of remand which will unnecessarily prolong the proceedings and I myself examine the evidence. In support of the order which I have made, I will refer to the view taken in Baset Sing v. Bartar Sing (1) where it may be observed that the Appellate Court need not send the case to the learned lower Court merely in the preference of obtaining a finding on the evidence that already exists on the record which the learned Appellate Court itself can weigh and discuss.
15. Instead of extending the provisions of Order XLI, rule 31, C. P. C. I think that the provisions contained in the special enactment that is section 15(6) of the Sind Urban Rent Restriction Ordinance, 1959 (VI of 1959), should be applied. The requirement of the aforesaid provisions of law is that the learned Appellate Authority shall 'decide' the appeal after sending for the record of the case of the learned Rent Controller and also give the parties an opportunity of being heard, and if necessary, after making such further inquiry as it thinks fit either personally or through the learned Rent Controller. In the instant case, the imperative provision of law is that the learned Appellate Authority should send for the record of the case and should give an opportunity of being heard. The learned VIIth Additional District Judge has complied with this provision and he did not feel the necessity of any further inquiry either personally or through the learned Rent Controller. There are findings of fact by the learned Rent Controller that respondent required the disputed premises bana fide for his personal use and occupation as he is residing in one room with his wife and divorced daughter. This room is measuring 12' x 12'. According to him his daughter is suffering from T. B. And they want larger accommodation. The appellant did not cross-examine the respondent so as to show that the claim made by the respondent was unfounded and the appellant in his examination merely denied the requirement of the respondent. I, however, find that this contention cannot be sustained.
16. It was contended by the learned counsel for the respondent that, according to paragraph (a) of the proviso of the section 30 of the
(1) AIR 1936 Lah. 213 said Act, the respondent could charge rent on the basis of the latest assessment carried out by the Municipality or local authority, as the case may be. The learned counsel for the appellant has submitted that the finding of the learned VlIth Additional District Judge on this point, stood violated on account of the misreading of the evidence and by ignoring important evidence on record. I have perused the record with the assistance of the learned counsel to the parties. The learned counsel for the appellant failed to point out any misreading of the evidence on record. The findings are based on proper appreciation of evidence on record. The learned counsel for the appellant has precisely raised the same contentions as have been satisfactorily replied by the learned VlIth Additional District Judge. A perusal of the order passed by the learned Rent Controller clearly shows that the valuation was fixed at Rs,
70. The learned VlIth Additional District Judge determined the rate of rent at Rs, 40 on the basis of notice under section 30 of the said Act.
17. In view of the documents, namely, Exh. 5/4 and the notice under section 30 of the said Act Exhs.
0/6 and 0/8, it could not be said that the determination of rate of rent at Rs, 40 had not been correctly decided by the learned VIlth Additional District Judge. The view taken by the learned VIlth Additional District Judge in determining the rate of rent at Rs, 40, is unexceptionable and I have no reason to differ with him. I, therefore, decline to take into consideration the plea that the rent demanded by the respondent was not in accordance with the assessment of properties.
18. I find evidence produced by respondent, before the learned Rent Controller in respect of his personal requirement and bona fide need has remained unchallenged by appellant. Appellant neither by his cross-examination nor by his own statement denied that the premises in question are required by respondent bona fide and in good faith for his personal use. The contention of the learned counsel for the appellant that, respondent failed to discharge burden of proof which was on him in respect of this ground, also has no force in view of my above conclusion.
19. I, therefore, see no weight in this appeal which is accordingly dismissed with no orders as to costs. However, the appellants are granted four months' time from today to hand over the vacant possession of the tenant to the respondent on the conditions that the appellants shall continue to deposit rent in terms of the learned Rent Controller's order, failing which the respondent shall be at liberty to file an execution application before the expiry of the above-mentioned period.
Furthermore, in case the appellants fail to hand over the vacant peaceful possession of the tenement on the expiry of four months period, the learned Rent Controller shall issue writ of possession without any notice to the appellants.