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Civil Petition for Special Leave to Appeal No. 248 of 1978, decided on 8th May, 1978.

(On appeal from the judgment and order of the Lahore High Court dated 30‑4‑1978 in C. Rev. 536/78).

‑‑ Ss. 13 & 17‑Ejectment proceedings‑Appreciation of evidence Petition for leave proceeding on argument that eviction application having expressly referred to one out of two shops in possession of peti tioner, he could be evicted from specified shop only‑Petitioner having no rent receipt or any lease agreement in support of his claim of both shops being leased to him separately‑Eviction sought for reconstruc tion of entire demised premises and approved plan for reconstruction filed before Rent Controller covering entire premises for purpose First two paragraphs of eviction application also making clear beyond doubt petitioner's eviction being sought from demises premises in entirety‑Petition, held, without merit and dismissed.

Mushtaq Masood, Advocate Supreme Court and Sh. Masud Akhtar, Advocate‑on‑Record for Petitioners.

Nemo for Respondent.

Date of hearing: 8th May, 1978.

‑The premises in dispute in this petition for leave relate to a shop in Saddar Bazar in Multan Cantonment. The premises are owned by the respondent and according to learned counsel the demised premises consisted of two shops or rooms bearing Nos. 579 and 579‑B, and on 19‑12‑1974, the respondent had filed an eviction application against the petitioner for his eviction from the demised premises on the ground that he wanted to "reconstruct but according to learned counsel, the petitioner's eviction was sought only for Shop No. 579/B. Be this as it may, the Rent Controller dismissed the respondent's eviction application, therefore, the respondent filed an appeal in the District Court, Multan, which was allowed by the District Judge, Multan, on 18‑1‑1977. Now, the petitioner challenged this order in a writ petition in the Lahore High Court which was dismissed on 16‑3‑1977.

After the dismissal of this writ petition, the respondent commenced execution proceedings in the Court of a Senior Civil Judge, Multan, against the petitioner, and, he sought the petitioner's eviction from the demised premises and not merely from the room or shop bearing No. 579/B. The petitioner resisted his eviction and filed an applica tion under section 47 of the Civil Procedure Code and his plea in this application was that he could not be evicted from room or shop bearing No. 579 because the respondent's eviction application was only for his eviction from room or shop No. 579/B and not from No. 579. The respondent naturally claimed that he had sought the petitioner, eviction from the demised premises in their entirety and the learned Senior Civil Judge after framing issues allowed the parties to produce evidence in support of their respective, contentions. Both parties produced evidence, but it would appear that the petitioner did not produce the lease deed under which he had obtained occupation of the demised premises nor did he produce any rent receipt in order to prove his allegation that he occupied room or Shop No. 579 and 579/B under separate tenancies. The petitioner, however, appears to have relied on the fact that the eviction had referred to the demised premises as No. 579/B and not as 579. But the learned Senior Civil Judge observed that the first two paragraphs of the eviction application :‑

"Clearly show that the decree‑holder had sought ejectment of the present objector‑judgment debtor from both these rooms. The written reply submitted by the objector in the ejectment proceeding admits both these paras. He has not taken of the plea raised by him in the objection‑petition in his written reply mentioned above. The mere fact that the decree‑holder had mentioned No. 579/B cannot limit or in any way curtail the relief granted to him which was for vacation of the 2'rooms mentioned in the application and shown in the site plan attached to it. It may be mentioned that judgment‑debtor had objected to the description of the disputed property and the correctness of the site plan attached to the application. Issue No. 7. framed in this respect was not pressed before the Rent Controller as well as the learned District Judge. It may also be mentioned that Abdul Hakim, judgment‑debtor has admitted that he was paying Rs. 28 monthly rent for the whole property. Both these rooms were being held by him in a joint tenancy. Exh. P/4 is the copy of the plan for reconstruction of the whole property sanctioned by the Cantt. Board. P. W. 3 Karim Nawaz has admitted this plan has been sanctioned In respect of Property No. 579‑B."

The learned Senior Civil Judge, therefore, dismissed the petitioner's application on 27‑3‑1978. The petitioner challenged this order in an appeal in the District, which was dismissed on 23‑4‑1978. The petitioner then filed a revision in the Lahore High Court which was dismissed by Muhammad Afzal Zullah, J., on 30‑4‑1978. Hence this petition for leave.

As in the Courts below, learned counsel relied on the fact that the eviction application had not expressly referred to Room No. 579, but the eviction application has to be read as a whole, and, we agree with the view taken by the trial Court that the first two paragraphs of this application make it clear beyond any doubt that the respondent had filed the eviction application for the petitioner's eviction from the demised premises in their entirety,

Additionally, the finding of the first appellate Court that rooms bearing No. 579‑B shared a common platform has not been disputed, and this is another piece of evidence to support the respondent's claim.

It is significant that learned counsel did not refer us to any rent receipts or to any lease agreement or agreements in support of the claim that the two rooms had been leased to him separately. Additionally, as the respondent had sought the petitioner's eviction on the ground that he wanted to reconstruct the premises his case was that his plan for reconstruction had been approved by the authorities and it would appear that this plan had been fled before the Rent Controller. This plan would have shown whether the District Court had ordered the petitioner's eviction from the demised premises in their entirety or only from Room No. 579/B as claimed by the petitioner. But the petitioner has not produced this plan and the concurrent findings of the two lower Courts was that this plan was fatal to the petitioner's plea.

In all the circumstances discussed, it is clear that the respondent had sought the petitioner's eviction from the demised premises in their entirety as held by all the three Courts.

There is no merit in this petition which is dismissed.

Petition dismissed.

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