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Petitioner: ABOOBAKAR VS Respondent: JAMA MASJID HASSAN AULIA
1988 M L D 1273
1988 M L D 1273
[Karachi]
Before Saleem Akhtar, J
ABOOBAKAR and another‑‑Appellants
versus
JAMA MASJID HASSAN AULIA‑‑Respondent
First Rent Appeal No.762 of 1987, decided on 3rd March, 1988.
Sind Rented Premises Ordinance (XVII of 1979)‑‑---
-‑‑‑Ss.13 & 15‑‑Ejectment application‑‑Jurisdiction‑‑Tenant submitted application 'C to Rent Controller raising objection as to jurisdiction of Rent Controller to entertain rent case against him, without pleading in his written statement that rented premises was a hotel‑‑Tenant only stated that he had purchased hotel structure, furniture and other structure lying there from original owner‑‑Rent Controller dismissed tenant's application‑‑Documents filed, did not specifically show that jurisdiction of Rent Controller was challenged on ground that disputed premises was a hotel‑‑Tenant's objection relating to jurisdiction was vague and unspecific and lacking in material particulars‑‑Ejectment application also did not show that averments referred to the disputed premises as a hotel‑‑Perusal of record showing that tenant was delaying proceedings and for that purpose he was making frivolous applications‑‑Order of Rent Controller dismissing tenant's application maintained in circumstances.
Mumtaz Ahmed Shaikh for Appellants.
Yousuf Rafi for Respondent.
Date of hearing: 13th March, 1988.
JUDGMENT
The respondent filed an application for ejectment against the appellant on 11‑12‑1986.The appellant filed his written statement on 22‑1‑1987 and the matter was fixed for evidence. The matter was then adjourned to 14‑2‑1987 for filing affidavit of evidence. The same was filed on 1‑3‑198? and the matter was fixed on 1‑4‑1984 for cross‑examination of the respondent's witness. However, the matter was adjourned to 25‑4‑1987 on which date the Presiding Officer was on leave and the matter was then adjourned to 26‑5‑1987 when the appellant filed application for adjournment. The matter continued to be adjourned when or. 20‑7‑1988 the appellant filed an application praying that as the jurisdiction of the Controller has been challenged on the ground that he cannot entertain a case in respect of a hotel, a preliminary issue for deciding the question of jurisdiction should be framed and case may proceed accordingly. No affidavit was filed as according to the respondent it was a question of law which was raised m the application. On the same day i.e. 20th July, 1987 this application was dismissed and the matter was adjourned to 13th August for cross‑examination. On that day the appellant again filed an application under Order VII, Rule 11, C.P.C. read with section 2(4) and section 13 of the Sind Rented Premises Ordinance, 1979. The appellant repeated the prayer that the Controller was not competent to entertain the rent case in respect of a hotel. No affidavit was filed in support of this application. The learned Controller by the impugned order dismissed this application on the same day.
Mr. Mumtaz Ahmed Shaikh the learned counsel for the appellant has contended that as question relating to jurisdiction of the Controller was raised it was his duty to have decided this issue first before proceeding with the evidence of the parties. On query whether this plea was raised, in the written statement the learned counsel referred to paragraphs 1 anti 2 of the written statement which read as follows:‑
"(1) That the above rent case is not maintainable and is liable to be dismissed with special cost.
(2) That this Honourable Court has no jurisdiction to entertain the above case for ejectment and hence the same is liable to be dismissed."
In the entire written statement ii has not been pleaded that the rented premises is a hotel. The appellant has only stated that he had purchased the hotel structure, furniture and other structure lying there from its original owner Hassan son of Aulya on 10‑5‑1979 under a written document. Therefore, while this application was being pressed by the appellant before the Controller he had before him the written statement and the application under Order VII, Rule 11, C.P.C. From both these documents it cannot be specifically and clearly spelt out that the jurisdiction of the Controller has been challenged on the ground that the disputed premises is a hotel. Be that as it may the fact remains that in the written statement the objection relating to the jurisdiction was vague, unspecific and lacking in material particulars. On the basis of such vague allegations no preliminary issue could be framed. If a party wishes to challenge the jurisdiction of the Controller he must state all such facts which are made basis for such a plea. In the written statement all the facts are lacking and a mere reference of purchasing the hotel cannot be treated as reference to a fact which is the basis of challenging the jurisdiction.
The matter does not end here. In fact the first application was made for framing preliminary issue and it was dismissed. The appellant therefore, repeated an application under Order VII, Rule 11, C.P.C. raising same objection praying that the ejectment application may be dismissed. As earlier an order had been passed rejecting similar application, the same prayer could not have been granted by the Controller. However, the appellant had filed this application under Order VII, Rule 11, C.P.C. which in my view does not apply to the proceedings before the Controller. Assuming that the provisions of Civil Procedure Code and Order VII, Rule 11, C.P.C. were made applicable, then, the ejectment application could have been dismissed only if it can be shown that on the allegations made in the said application itself it was barred by any provision of law. A reading of the ejectment application will show that the averments do not refer to the disputed premises as a hotel. Therefore, even otherwise application under Order VII, Rule 11, C.P.C. should have been dismissed. From a,, perusal of the record of the learned Controller my impression is that the appellant is delaying the proceedings and for that purpose he is making such frivolous applications. The appeal is, therefore, dismissed with cost.
M.Y.H./A‑327/K Appeal dismissed.