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Civil Petition No. 225 of 1981, decided on 17th February, 1982.
(On appeal from the Judgment and Order dated 31‑5‑1981 of the Lahore High Court, Rawalpindi Bench, Rawalpindi passed in S. A. O. No. 316/76). .
‑‑ S. 13‑Eviction‑Default in payment of rent‑‑All Courts below concurrently finding failure on part of petitioner to pay rent to land lady‑Ground of default in payment of rent‑Essentially a question of fact‑Supreme Court cannot reopen case in circumstances and interfere with such concurrent findings‑No evidence led by tenant a petitioner to prove assessment of rent having been made ex-parte and petitioner though having a right to challenge such assessment not choosing to do so‑No reason, held, existed to interfere with findings of Courts below in circumstances.
Malik Muhammad Jaffar, Advocate instructed by Ch. Akhtar Ali, Advocate‑on‑Record for Petitioner.
Nemo for Respondents.
Date of hearing : 17th February, 1982.
Rent Controller, Campbellpur, accepted the petition of Mst. Nawab Begum and ordered the eviction of Sh. Mushtaq Alam, Commission Agent, from Shop No. V/65, situated in Civil Bazar, Campbellpur. The petition had been moved before the Rent Controller by Mst. Nawab Begum under section 13 of the West Pakistan Urban Rent Restriction Ordinance of 1959.
The allegations against Sh. Mushtaq Alam were that he had failed to pay the rent as assessed by the Excise Department to her. The learned Rent Controller in his order dated 19‑9‑1975 while disposing of the petition observed that the rate of rent came in the latest assessment which was carried out from 1971‑1973 is Rs. 100 per month. Copy of the demand notice was Exh. A‑10 and the AD postal receipts Exh. A‑11 and Exh. A‑12 were on the file. The demand notice had been delivered to Sh. Mushtaq Alam on 29‑3‑1973, and according to that he failed to pay the rent due with effect from January, 1972, although he had been paying the rent at the rate of Rs. 50 per month. The second issue of subletting was decided against the petitioner Mst. Nawab Begum. The case then went on appeal to the Court of District Judge, Campbellpur and the District Judge while confirm ing the decision of the Rent Controller regarding the ejectment of Sh. Mushtaq Alam also observed that he had sublet the shop in question to respondent No. 2, who in law is deemed to be the tenant of respondent No. 1 (Sh. Mushtaq Alam). Sh. Mushtaq Alam then moved the High Court in second appeal against the order dated 8‑4‑1976, but the learned Judge of the High Court on 31‑5‑1981 dismissed the appeal but allowed Sh. Mushtaq Alam the time up to 16th of December, 1981, to vacate the shop.
Sh. Mushtaq Alam has moved this petition under Article 185 (3) of the Constitution against the judgment dated 31‑5‑1981 of the Lahore High Court, Rawalpindi Bench in S. A. O. No. 316 of 1976 and has sought permission to appeal.
We have heard the learned counsel for the petitioner, but we feel reluctant to accede to his request. All the Courts below have come to a concurrent finding about the failure of the petitioner to pay the rent due to the landlady Mst. Nawab Begum, and on this ground of default, which is essentially a question of fact, this Court cannot reopen the case and interfere with the concurrent finding of the Rent Controller, the District Judge and the High Court. About the question of subletting the High Court has agreed with the District Judge. The point raised and argued before the High Court could not be again raised and argued before us to annul the finding that the assessment was made against the present petitioner ex paste. In fact he led no evidence‑to prove that fact. He had a right to challenge, but he did not challenge the assessment.
We see no reason to interfere. This petition is, therefore, dismissed, but at the request of the petitioner, we grant him two months' time to‑voluntarily surrender the shop to the landlady provided he also pays the rent due at the stipulated time.
Petition dismissed.
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