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Civil Petition No. 837 of 1981, decided on 9th September, 1981.

(On petition: from the order dated 27‑6‑1981 of the Lahore High Court in Writ Petition No. 3178 of 1981).

‑‑‑S. 13(2) (ice‑Relationship of landlord and tenant‑Tenant denying relationship of landlord and tenant but Rent Controller finding such relationship existing‑Decision on questions of default in payment of rent, held, dispensed with and forfeiture of tenancy a natural result of finding.

Ch. Ghulam Mujtaba, Advocate‑on-Record for Petitioners.

‑An ejectment petition brought against the petitioners by Aziz Ahmad, respondent No. 8, was dismissed by the Rent Controller, Chiniot, upon his finding in the negative on the issue of the existence of relationship of landlord and tenant between the parties. In appeal, however, the Additional District Judge, Jhang tKh. Saeedul Hasan) by order dated 31‑1‑1979 reversed the finding and in consequence directed the ejectment of the petitioners. In deciding the matter, be had allowed the landlord to produce documents marked 'A' a 'B' and 'C'. This was a point of grievance made out by the petitioners before the Lahore High Court in their S. A. O. No. 185 of 1979, though they did not so much object to the production of the documents, as the non‑availability of opportunity to them to produce evidence in rebuttal. The learned Judge of the High Court accepted the contention and by his order dated 12‑12‑1979 remanded the matter with the direction to allow the petitioners opportunity to produce additional evidence in rebuttal of the aforesaid documents and in case the landlord was permitted to produce further additional evidence, to give the petitioners, too, a right to rebut such evidence. During the re hearing of the appeal on remand, the documents marked 'A', 'B' and 'C', which were only photostat copies and which had never been properly exhibited, were allowed to be withdrawn by the landlord who did not also express any desire to produce further additional evidence. That being so, the appellate Court (Mr. Ehsanul Haq Bhalli), holding that there was no question of allowing an opportunity to the petitioners to produce evidence in rebuttal, proceeded to decide the appeal on the basis of the evidence on record and finding the issue of relationship in the affirmative directed once again the ejectment of the petitioners, vide order dated 28‑5‑1981. The petitioners challenged the decision, this time by Writ Petition No. 3178 of 1981. The contention raised that they had not been allowed opportunity to produce evidence in rebuttal was repelled by the learned Judge on the view that the documents marked 'A', 'B' and 'C' having been withdrawn by the landlord, the Additional District Judge's decision not to allow the petitioners to produce in rebuttal was plausible. Another contention that a notice was necessary under section 106 of the Transfer of Property Act, which governed the matter, was rejected on the ground that such plea had not been taken in the petitioners' reply to the ejectment application. The learned Judge, therefore, dismissed the writ petition in limine on 27‑6‑1981. Aggrieved, the petitioners have approached this Court for leave to appeal against the order of the High Court.

2. Ch. Ghulam Mujtaba, learned counsel for the petitioners, submitted that the petitioners had attorned to Mst. Hamida Begum, mother o respondent Aziz Ahmad, and as such she being the landlord, there could exist no relationship of landlord and tenant between Aziz Ahmad and petitioners. As it has not been shown that the denial of relationship had been earlier based on such plea, the point cannot be allowed to be raise now. It was next urged that the forfeiture of the tenancy without firs deciding the question of default was not proper. But the petitioners' case had not been that they had been Davina rent and indeed such a would have bees incompatible and contradictory in terms with their plea of denial of relationship. The forfeiture of the tenancy in the circumstance of the case was a natural result of the finding in the affirmative on the issue of relationship. Lastly, it was urged that there had been no compliance by the appellate Court of the remand order. The matte has been dealt with by the High Court and we see no way to differ from the view taken.

3. The petition, therefore, is devoid of merit and is accordingly dismissed.

Petition dismissed.

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