1. MUHAMMAD HALEEM, J,--- The petitioners seek special leave to appeal from the judgment dated 31st July, 1977, of a learned Single Judge of the High Court of Sind, at Karachi by Which Second Appeal No. 373 of 1976 was dismissed.
2. The respondent herein is the transferee of the disputed premises bearing No. I-C-70-2 (G-1) on Plot No. 77, Shoot N. P. 13 situate at Muhammad Shah Street. Jodia Bazar, Karachi Prior to January 1961, the parties herein carried on hotel business in partnership in this premises in the name and style of Cafe Madina which was dissolved on 13th April. 1960. There after the petitioners who are the nephews of the respondent were employed as servants on a salary of Rs. 150 and its. 100 per month respectively to manage this business. In that capacity they rendered accounts to the respon--dent uptill March, 1963, and thereafter failed to pay the profits to the respon--dent. Accordingly, the respondent filed a suit for possession of the promises and for accounts on 30th April, 1965, in the Court of the Senior Civil Judge, Karachi The petitioners claimed to be the tenants of the premises at s monthly rental of Rs. 30 p. m. And also pleaded that they took financial help from the respondent and with that amount they had purchased the furniture and fittings and in repayment of the loan they were tendering Rs. 150 p. m. However, they refused to pay this amount as the respondent failed to render amount for the amounts received by her. The trial Court by judgment dated 28th April, 1975, decreed the suit with costs.
3. On appeal the 1st Appellate Court upheld the finding of the trial Court as to the petitioners being the servants of the respondent who was the owner of the furniture and fittings in the premises.
4. Against this judgment the petitioners preferred a Second Appeal in the High Court and a learned Single Judge upheld the concurrent findings of fact and dismissed the appeal as fore mentioned.
5. The learned counsel contended firstly, that the learned Single Judge on his own, took objection to the reception, in evidence, of Exh. 129 which is a true copy made from the certified true copy filed in the High Court in Suit No. 241 of 1965, which was admitted without objection by the respondent in the trial Court. As such no objection could have been taken to its reception at a later stage. In this connection he relied on Abdullah and others v. Abdul Karim and others (PLD 1968 SC 140) and Malik Din and others v. Muhammad Aslam (PLD 1969 SC 136). Secondly, the learned counsel contended that the learned Single Judge failed to give due weight to section 30(1) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, as it was sufficiently clear from Exh. 129 that the petitioners became the tenants of the premises on their father's demise in 1958 who was the recorded tenant of the premises since 1955 which fact clinched the issue as to the status of the petitioners.
6. Both the contentions are devoid of substance. The learned Single Judge having observed that the document was not legally receivable in evidence yet took it into consideration, but finding sic explanation as to bow the name of their father was entered in 1955 though it showed a demand of rent for the period from 1st February, 1948 to 31 May, 1954, during which period their father was admittedly not in possession of the premises, he held it not to be of any value in the context of the further fact that in the deed by which the partnership was dissolved on 13th April, 1960, the petitioners had failed to assert their status as tenants of the premises. Since the learned Single Judge had applied his mind to this document, the principle stated in the can noted above can be of no help to the contention raiser by the counsel. As for the second contention the learned Single Judge In the High Court rightly held that the petitioners cannot now take the benefit of section 30(1) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, as it was neither pleaded in support of their claim nor was it raised before the First Appellate Court. No exception can be taken to it for, before taking advantage of this legal provision, the petitioners had to establish that they were the recorded tenants of the premises. Not having done so, there was no scope for applying this provision.
7. The Courts below have concurrently bald against the petitioner who have failed to make out a case for grant of special leave to appeal.
8. Accordingly the petition is dismissed.