' SYED DEEDAR HUSSAIN SHAH, J.---Petitioners seek leave to appeal against the judgment of the High Court of Sindh at Karachi, dated 29-7-2002, passed in First Rent Appeal No,251 of 1999.
2. Briefly stated, the facts of the case are that the respondent rented out the premises in dispute to the petitioners vide lease agreement dated 29-9-2001, for a period of 7 years on a monthly rent of Rs,10,000 for the first three years and to be enhanced after that by 10% for each threeyear-period. It was agreed upon between the parties that the plot in dispute would be used for a commercial purpose. On 7-11-1996 respondent filed Rent Case No,43 of 1996 for the eviction of the petitioners on the ground of personal need as well as default in payment of rent. Petitioners contested the suit by filing written' statement. Learned Rent Controller framed necessary issues and after hearing learned counsel for the parties accepted the ejectment application directing the petitioners to vacate the premises in question within 60 daysvide judgment dated 16-3-1999. Feeling aggrieved, petitioners challenged the aforesaid judgment before the learned High Court, through First Rent Appeal No,251 of 1999, which was dismissed vide impugned judgment dated 29-7-2002. Hence, this petition.
3. Syed Haider Ali Pirzada, learned Advocate Supreme Court forthe petitioners, inter alia, contended that the learned High Court has not considered the case in its proper perspective, that section 10 of the Sindh Rented Premises Ordinance 1979 has been misinterpreted in the light of documentary evidence on record; that the ejectment petition was not maintainable on the ground of personal requirement during the subsistence of the tenancy agreement for 7 years; that the impugned judgment is void, ab initio, nullity in the eye of law and without jurisdiction, inasmuch as on 29-7- 2002 the learned Single Judge did not have jurisdiction to pass any order in view of the amendment made in SRPO 1979 vide (Amendment) Ordinance No,XIV of 2001 dated 17-4-2001; that the order dated 1-6-2002 passed in First Rent Appeal No,251 of 1999 whereby the learned Single Judge of the High Court of Sindh re-heard the matter and reserved it for judgment was itself coram non judice; that cross-objections in appeal against the judgment of the Rent Controller were not filed, with the result that ground of personal bona fide need attained finality, which could not have been discussed by the learned Single Judge; that there are conflicting judgments of the Rent Controller and that of the learned Single Judge on the issue of default and personal bona fide need of the respondent; that when there is variance in the pleadings and evidence, in the result whereof evidence is not to be looked into; that the impugned judgment is the result of misreading and non- reading of material, therefore, leave to appeal may be granted. In support of his contentions, learned counsel has cited a plethora of case-law titled Khyber Insurance Co. Ltd. v. Pakistan National Shipping Corporation PLD 1994 SC 725; Usman Bhai v. Ali Imam Zaidi 1994 SCM R 1918; Mahmood Ahmad v. Muhammad Shafi 1981 CLC 389 and Binyameen v. Hakim 1996 SCM R 336.
4. Mr. Raja Qureshi, learned Advocate Supreme Court for the respondent controverted the contentions of learned counsel for the petitioners and pointed out that the learned High Court was competent to decide the appeal in view of the insertion of section 21-A in Sindh Ordinance No,XVII of 1979 published in the Sindh Government Gazette dated 17-4-2001, which reads as under:-- "6. In the said Ordinance, after section 21, the following new section shall be inserted:--- "21-A. All appeal filed under this Ordinance and pending in the High Court immediately before the commencement of the Sindh Rented Premises (Amendment) Ordinance, 2001, shall, stand transferred to the District Judge having jurisdiction as provided in subsection (1) of section 21, for disposal.
' Provided that the appeals as are fixed for judgments shall be disposed of by the High Court."
' Learned counsel for the respondent also invited our attention to the orders passed by the learned High Court, which read as under:-- "22-2-2002: Mr. Zahid Marghoob, Advocate, Mr. Munawar Malik, Advocate.
' Heard arguments of both the learned counsel. Judgmentreserved."
"20-3-2002: As judgment could not be written and some time has elapsed, matter shall not be treated as reserved and shall be fixed per roster for re-hearing."
"1-6-2001: Mr. Zahid Marghoob for the appellants. Mr. Munawar Malik for respondent.
' By consent the following orders are passed:--
(1) Civil Miscellaneous Application No,1672 of 1999 is allowed:--
(a) Appellant to get his share of water/conservancy charges determined from KWSB and pay up to date outstanding dues if any on this account. The paid bills shall be produced in Court on 10-7- 2002 when the matter is fixed for this purpose only.
(2) By consent Civil Miscellaneous Application 2698 of 2001 is also allowed to the extent of production of money order coupon bearing Nos.1716, 1717 and 1718 dated 30-11-1994, which are marked as Exhibits 5-A, B and C respectively.
(3) Both the learned counsel have been re-heard by myself on the main appeal. Judgment is reserved.
(Sd.) Judge."
' Thereafter, the judgment was announced on 24-7-2002. Raja Qureshi, learned Advocate Supreme Court further pointed out that in the similar First Rent Appeal bearing No,186 of 2001 (Old No, F.R.A.
No,659 of 1998) the arguments were heard by the learned Single Judge in Chambers of the High Court of Sindh and the judgment was reserved; that on 23-4-2001 the learned Single Judge in Chambers passed the following orders:-- "Consequent to amendment in the Sindh Rented Premises Ordinance, 1979 conferring first appellate jurisdiction on the District Judge, the appeal file is returned herewith for transmitting to the Court of competent jurisdiction."that accordingly the above First Rent Appeal was sent to the concerned District and Sessions Judge having jurisdiction under the Sindh Rented Premises Amendment (Ordinance) 2001, in the month of May, 2001, but the case was returned by the District and Sessions Judge (East) on the ground that Sindh Government had issued a notification dated 14-4-2001, Amending Sindh Rented Premises Ordinance, 1979, whereby all the appeals filed under section 21-A of the Sindh Rented Premises Ordinance, 1979 and also pending in the High Court immediately before the commencement of the new Sindh Rented Premises (Amendment)
Ordinance, 2001, shall stand transferred to the concerned., District Judge having jurisdiction, as provided in subsection (1) of section 21 of the said amended Ordinance, 2001 for disposal, the provision of the said section provides that the appeals as are fixed for judgment shall be disposed of by the High Court, that on this note of the District Judge and after going through the amendment learned Chief Justice of the Sindh High Court passed the order that "Put up with the Amending Ordinance". Thereafter the matter was placed before the learned Single Judge, who passed the following orders:- "I agree with the reference made by the learned District Judge Karachi (East). My order dated 23-4- 2001 for transmitting the case file to District Judge has been inadvertently made. It appears that at the time of making the said order I was not able to lay hand on the Sindh Rented Premises Amendment Ordinance, 2001. The proviso to section 21-A is very clear. The appeal was heard and was fixed for judgment, therefore, it was required to be disposed of by the High Court.
' The office may kindly be directed to place the case file before me for disposal."
' Raja Qureshi, learned Advocate Supreme Court further contended that the judgment of the Rent Controller was challenged before the learned High Court as a whole, particularly its propriety, legality as well as correctness and with the contention that it was the result of misreading, non- reading of the evidence and was not maintainable. In support of his contentions, learned counsel referred to an unreported judgment of the Sindh High Court titled Messrs Umer Khan v. Chief Engineer, Roads and Buildings HCA No,12 of 1977 and Ismail v. Sher Bano 1988 SCMR 722.
5. In reply to the above contentions of learned counsel for therespondent, Syed Haider Ali Pirzada, learned Advocate Supreme Court for the petitioners submitted that clauses 10, 11 and 13 of the Agreement of Tenancy between the parties (photocopy available at pages 116 to 120 of the paper book) show that an amount of Rs, 10,00,000 (Rupees ten lac) was deposited with the landlord and at the time of termination of the agreement and handing over the possession of the premises the landlord shall pay the said amount to the tenant and according to clause-11 the landlord is also bound to pay a sum of Rs,300,000.
6. Learned counsel for the respondent vehemently controverted the arguments of learned counsel for the petitioners on the said point and submitted that such plea was neither raised by the tenant before the Rent Controller nor before the High Court, and mere production of the document, which is not exhibited during the evidence, should not be considered as document legally tendered in evidence, therefore, petitioner's request that amount of Rs,13,00,000 may be refunded to the petitioners is unfounded, imaginary and not supported by the documentary evidence.
7. We have considered the arguments of learned counsel for the parties and minutely examined the material available on record. Admittedly, the concurrent findings of fact recordea by the Courts below, whereby eviction has been ordered against the petitioners, arequestions of fact and have rightly been decided by the two Courtsbelow. Perusal of the record and case diaries as well as the amendment in the Ordinance shows that the matter was to be decided by the High Court. The learned Single Judge in Chambers ordered that the matter be fixed according to the High Court Roster and the case should not have been transferred to the District Judge. The learned High Court has considered the case in its proper perspective. The impugned judgment is based entirely on the proper appreciation of facts, law and is not open to exception. The case-law cited by learned counsel for the petitioners, in our humble view, is not relevant and is quite different and distinguishable from the facts of the case in hand; whereas the contentions raised by learned counsel for the respondent are supported by the record and provisions of law. There is no misreading, or non-reading of the material or misconstruction of law.
8. For the facts, circumstances and reasons stated hereinabove,we are Of the considered opinion, that this petition is without merit and substance, which is hereby dismissed and leave to appeal declined.