' ASLAM RIAZ HUSSAIN, J.-This appeal by leave to the Court is directed against the judgment of the High Court of Sind, dated 10-4-1984, in a Second Rent Appeal.
2. The appellant/landlord applied for ejectment of the respondent from a portion of non-residential premises in a building known as "Saeeda House", Preedy Street, Sadar, Karachi on the ground of default in payment of rent and bona fide personal need for the purpose of carrying on business.
The learned Rent Controller by his order, dated 21-8-1975 granted the application and ordered the eviction of the respondent on the ground of personal need only. The respondent's First Appeal against the said order was dismissed by the learned Additional District Judge on 30-10-1976. The respondent thereupon filed a Second Appeal which was heard by the learned High Court of Sind on 10-5-1980, and the case was remanded to the learned Rent Controller for framing the following two issues with a direction to submit his findings thereon:-
(1) Whether the petitioner (respondent herein) had vacated a building after 1959 in the urban area of Karachi and if so, without sufficient cause.
(2) What is the effect of the finding on Issue No, 2 ?
3. The learned Rent Controller, after remand, recorded some additional evidence and decided both the issues against the appellant and sent his findings to the learned High Court. According to the learned Rent Controller the respondent had vacated the premises situated in Jodia Bazar, Karachi, which were on rent with him after 1959.
In respect of the premises bearing No, G/III which had been let out by the appellant to a company known as lqbal Printing Press, it was held by the Rent Controller, that after 1977, the receipts of rent were issued in the name of its directors namely, Jamal Musharraf and Kamal Musharraf.
4. When the appeal came up for hearing on 3-5-1981 before the learned High Court an application for adjournment was moved on behalf of the learned counsel for the respondent as well as the appellant. The adjournment was, however, refused and, by an oral order announced on 3-5-1981, the appeal of the respondent was allowed. On coming to 'know of the said order the learned counsel for the appellant made an application on 5-5-1981 under Order XLI, rule 21 of the Code of Civil Procedure for rehearing of the appeal. The written judgment nonetheless was signed by the learned High Court on 10-5-1981. The appellant's application under Order XLI, rule 21 of the C. P. C.
Was heard on 23-8-1982 when the following order was passed:- "By consent the application (C. M. A. No, 1452 of 1981) under Order XLI, rule 21, C. P. C. Is granted, so that the case shall now be 'reheard'."
' The appellant-landlord also moved an application under Order XLI, rule 27, C. P. C. For permission to lead additional evidence to show that Jamal Musharraf and Kamal Musharraf were, in fact, the persons who owned Iqbal Printing Press. This application was allowed by the High Court but his (respondent's) application under Order XLI, rule 21, C. P. C. Was treated as an application for review and the appeal was ordered to be reheard as 'review', and by the impugned order, dated 10.4-1984, the High Court disposed of the matter as such, maintaining its earlier order, dated 10-5-1981.
5. It may be mentioned that in the said order (dated 10-4-1984), the High Court, relying on the judgments of this Court in the case of Abdul Aziz v. Muhammad Ibrahim (1) and Nazir Ahmad v.
Ghula n Nabi (2), came to the conclusion that no disqualification was incurred by the appellant under section 13(3)(ii)(c) of the West Pakistan Urban Rent Restriction Ordinance, 1959, in respect of the premises vacated by him in Jodia Bazar, Karachi.
(1) P D 1977 SC 442 (2)1981 SCM R 197 ' However, the finding of the learned Rent Controller was affirmed in relation to the portion of the disputed premises which were on rent with Iqbal Printing Press on the ground that after 1977 the appellant had changed the receipt of rent in the name of Jamal Musharraf and Kamal Musharraf.
Consequently the application filed by the appellant was rejected. The result was that the appellant's application for ejectment failed.
6. Feeling aggrieved the appellant filed a petition for leave to appeal against the aboire- mentioned judgment of the High Court of Sind. Leave was granted to'him on 28-10-1984.
7. We have gone through the impugned judgment and heard the learned counsel for the parties at length.
' It would be noticed that the contention that the respondent had vacated the rented premises situated in Jodia Bazar, Karachi, after 1959 and as such was barred from filing aiL application for respondent's ejectment by virtue of section 13(3)(ii)(c) of the Rent Restriction Ordinance, did not find favour with the High Court, and the impugned judgment rests on the finding that by changing the names of the persons in the rent receipts issued with respect to premises bearing No, G/III, the appellant had 'vacated' a premises in Karachi within the meaning of the word as used in section 13(3)(ii)(c) of the West Pakistan. The relevant portion of the said Ordinance is reproduced as under:- "13(3)(a)-A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession-
(i) (a to c).
(ii) in the case of a non-residential building or a scheduled or rented land, if-
(a) to (b) .
(c) he had not vacated such a building or rented land without sufficient cause after the commencement of this Ordinance in the said urban area."
7. The learned counsel for the appellant submitted that the appellant had never vacated the portion of Saeeda Building bearing No, G/1II ever since it was leased out to the Iqbal Printing Press in 1958 and even now the Press is running therein. He submitted that the only change effected was that due to certain family arrangements made by the Directors of the Company which is a family concern, the landlord, on their request, started issuing the rent receipts in favour of the said directors instead of the company (i. e. The Press) and as such it cannot be said that the building in question was ever got vacated.
8. The learned counsel for the respondent has not been able to show that the building was ever actually vacated by the Iqbal Printing Press at any stage. We fell that there is considerable force in the above-noted contention put forward by the appellant's counsel.
We are, however, of the view that read with section 13(2) of the Ordinance, what was actually meant by Legislature by the provisions of sub-clause (c) of clause (ii) to section 13(3) was that if a landlord was himself in possession of 'such a building or rented land' where he could carry on his business but vacates it without 'sufficient cause' then he is debarred from asserting that the tenant of a similar premises owned by him should be ejected because be (1. e. The landlord) needs it for his own use.
In the present case there is no assertion by the opposite side that the appellant-landlord had ever himself occupied a portion of the building in question or for that matter any other similar building, which he vacated without any 'sufficient cause'. As such he cannot be said to have incurred any disqualification under the aforesaid clause.
' The net result of the above discussion is that the appeal is allowed with costs and the respondent is ordered to vacate the premises in question.