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Civil Petition No. 213 of 1980, decided on 11th March, 1980.

(On appeal from the judgment dated 24‑2‑80 of the Lahore High Court in W. P. No. 1850 of 1980)

‑‑ S. 17‑Eviction proceedings‑‑Landlord and tenant‑Contention that respondent having been declared landlord of petitioner without formally framing an issue on point proceedings deserved to be set aside‑Held: Entire matter including circumstances in which respondent became owner of property explained in evidence and on its basis respondent held to be landlord‑Petitioner in absence of any claim for framing a specific issue on point could not complain as to such question having been decided without formally framing any issue -Evidence on point could also not be reappraised by High Court in its constitutional jurisdiction and conclusion reached by Rent Controller and District Judge after due appraisal of evidence, held, final.

Ch. Muhammad Ashraf, Advocate Supreme Court and Wajid Hussain, Advocate‑on‑Record for Petitioner.

Nemo for Respondent

Date of hearing: 4th March, 1980.

‑This petition is directed against the order dated 24‑2‑80 by a learned Single Judge of the Lahore High Court dismissing the writ petition (W. P. No. 1850/80) filed by the petitioner herein.

The facts briefly stated are that the petitioner filed an application under section 1'1 of the Cantonment Rent Restriction Act, 1963, for the ejectment of the respondents from Shop No. 244 situated in Ward No. 5, Saddar Bazar, Cantonment Sialkot. According to the allegation in the plaint the shop in dispute was purchased by the father of the petitioner from one 41st. Nasim Akhtar and after the death of his father the respondent had succeeded as the owner of the shop in dispute. The petitioner was a tenant under Mst. Nasim Akhtar on payment of Rs. 40 per month and latter became tenant of his father on 22‑5‑1972 on the same rate and ultimately his tenant. But as he had failed to pay any rent despite being served with a registered notice he was, therefore, liable to ejectment on the ground of default in payment of rent.

The application was resisted by the petitioner herein on the ground that the relationship of the landlord and the tenant did not exist between the parties as, according to the petitioner, he was, in fact, a tenant of Mst. Nasim Akhtar and that the rate of rent was Rs. 15 per month and as he had spent Rs. 450 on the repairs and Rs. 125 on affixing the door and had also incurred other expenses and, thus, had spent a sum of Rs. 705, which he was entitled to deduct the said amount. The Rent Controller on 20‑4‑73 passed an order for deposit of rent amounting to Rs. 240 from 22‑5‑72 to 22‑4‑73 within the period of one month. He also ordered for the deposit of future monthly rent before 15th of each succeeding month. As the petitioner failed to deposit the arrears of rent an order for his ejectment was passed on 12‑2‑1976.

Feeling aggrieved by the said order, the petitioner filed an appeal before the District Judge. Sialkot, which was accepted by him by his order dated 6‑5‑1976 and the case was remanded to the Rent Controller with the direction that the appellant be given an opportunity to cross‑examine the witnesses and after recording the evidence of the petitioner to decide the case in accordance with law. This order was duly complied with and the application for ejectment was again accepted by the Rent Controller as per order dated 27‑8‑1978 and the petitioner was ordered to vacate the shop. Dissatisfied, the petitioner went in appeal before the District Judge and the same was dismissed by him on 2‑12‑1979 holding that as the Rent Controller's order for deposit of rent was not complied with he was rightly ordered to be ejected. This order was passed on 2‑12‑1979. The petitioner, then, filed a writ petition before the Lahore High Court, which, too, was dismissed. Hence this petition for leave to appeal.

The main ground raised before us by Ch. Muhammad Ashraf, learned counsel for the petitioner, was that as the petitioner had denied the relationship of landlord and tenant between the parties, the Rent Controller should have framed a separate issue and decided this question first before passing the order of ejectment. This objection was also taken up before the High Court and fully dealt with by it and it was pointed out that it was the case of the respondent‑landlord that the property in question originally belonged to Mst. Nasim Akhtar from whom the same was purchased by his father through a Court decree passed by the Administrative Civil Judge, Sialkot, on the 22nd May, 1972, and after the death of his father he became owner of the property. Both the Rent Controller and the District Judge, in spite of ‑the fact that no issue with regard to relationship of landlord and tenant was framed, had found the contesting respondent to be the landlord of the property, after taking into account all the relevant circumstances. It was further pointed out that it was an admitted position that the petitioner had not made any application at any stage before the Rent Controller or even before the learned District Judge requesting the framing of an issue with regard to the relationship of landlord and tenant. In view of the circumstances explained by the respondent landlord as to how the property had devolved upon him, this fact could be taken as established, especially when no evidence was led by the petitioner to show that the property did not belong to him. Since the Rent Controller and the Appellate Authority had come to the conclusion that the respondent was, indeed, a landlord of the property after due appraisal of the evidence and as the evidence could not be appraised in the writ proceeding, the said petition could not succeed, which was, accordingly, dismissed.

Ch. Muhammad Ashraf, learned counsel for the petitioner, has reiterated the same contention that be raised before the High Court, namely, that as the petitioner was contesting the claim of the respondent to be the landlord an issue with regard to this question had to be framed and before doing so the order of deposit of rent should not have been made. He also relied upon a consent decree dated 29‑12‑1972 passed in the proceeding between him and Mst. Nasim Akhtar whereby an ejectment petition filed by Mst. Nasim Akhtar against the present petitioner was compromised in an effort to show that she was the landlord.

We observe that this last mentioned order was passed in a proceeding between Mst. Nasim Akhtar and the petitioner, which was evidently not binding in the proceedings instituted by the respondent against the petitioner. In any case, the entire matter including the circumstances in which the respondent had become the owner of the property was explained in the evidence and on its basis it was held that the respondent was, in fact, the landlord and in the absence of any claim by the petitioner for framing a specific issue on this point he cannot now complain that this question had been decided without formally framing any issue with regard to this question. The High Court was entirely right that in writ proceedings the evidence on this point could not be reappraised and that the conclusion reached by the Rent Controller and the District Judge after due appraisal of the evidence was final.

There is, thus, no force in this petition, which must, therefore, fail and is dismissed hereby. However, the petitioner is granted four months' time to put the respondent in possession, provided he continues to pay the monthly rent in accordance with law.

Petition dismissed.

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