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Art. 199‑False and incorrect plea ‑ Held, disentitles a person to seek remedy by invoking constitutional jurisdiction being equitable and discretionary one.

Hakam Qureshi for Petitioner.

Mian Seedur Rehman Farrukh for Respondents.

Dates of hearing: 19th and 22nd September, 1982.

Briefly stated the facts leading upto the filing of this petition, are that on 8th June, 1970 Dr. Abdul Majid, respondent, filed an ejectment application seeking eviction of the petitioner from the shop in dispute on the ground that he requires the shop for bona fide personal need as he after his retirement in September, 1970, intends to settle in Lahore and to start his own practice in the said shop as well as the two other adjoining shops. It was further asserted that he being an Eye Specialist intends to establish a fairly large clinic and that separate applications for eviction of the tenants from the two adjoining shops were also being moved. The petitioner resisted this application by filing a reply in which various objections and pleas were taken. The petitioner denied the execution of the rent‑note as it was pleaded that the signatures of the petitioner were obtained on non‑judicial stamp paper as well as on other blank papers and that at the time of institution of the ejectment application those papers were converted into rent note. Moreover the jurisdiction of the Rent Controller was denied on a very novel plea, and the same reads as under :‑

That the Sammanabad Scheme was introduced in respect of the lands owned by the evacuees and otheRs.The lands owned by the l evacuees were brought into the Scheme unauthorisedly and illegally without the‑permission of the Custodian, Evacuee Properties and the Central Government of Pakistan. Therefore, the plot in question and the construction thereon is evacuee property. In any case, the evacuees bad. valuable interest in the plot in question and the construction hereon and, therefore, this Honourable Court has no jurisdiction."

However, on my specific enquiry from the learned counsel it was conceded that the petitioner was inducted into the shop by the respondent and that be has been paying rent to the respondent.

2. The learned Rent Controller on the basis of the pleadings of the parties framed necessary issues and ultimately vide order dated 29th May, 1973 ordered eviction I of the petitioner. This order was challenged by filing an appeal and during the pendency of this appeal, various applica tions were filed by the petitioner before the Appellate Authority. These applications, according to the petitioner, were not disposed of. A grievance has been, made in particular with reference to the following applications :‑

(i) Application dated 18th April, 1974 seeking permission to produce additional evidence in order to prove that the respondent had raised huge construction consisting of many rooms over the existing structure of the building in which the shop was situated so as to show that the' respondent no more required the portion of the property in possession of the petitioner for his bona fide requirement.

(ii) Application under Order XLI, rule 33, C: P. C. dated 24th April, 1974 seeking permission to amend reply to the ejectment application. (A similar request made before the Rent Controller was ejected vide order dated 24th November, 1972, but the said order was not challenged in the appeal filed against the. final order of ejectment dated 29th May, 1973 of the Rent Controller).

(iii) Application under Order XVIII, ‑rule 18, C. P. C. dated 7th November, 1974 praying that the Court ‑may inspect the spot or appoint a Local Commissioner to inspect the spot and to prepare a plan to clearly mark portion which has been constructed. recently, the two adjacent shops which have been got vacated yesterday and w the shop in dispute.

(iv) Application dated 25th February, 1978 for permission to produce certain documents to prove that rent of a shop . in the building owned by the respondent was increased from Rs.70 to Rs.100 and later there was a further increase in the rent. This was sought to be proved to show that the real intention of the respondent was to enhance the rent.

The case of the petitioner is that without deciding the aforesaid applications, the learned Additional District Judge proceeded to decide the main appeal and dismissed the same vide judgment dated 18th October, 1979. An appeal (S.A.O. No. 687/79) was. brought to this Court but the same was dismissed as having abated in view of the pro visions of Ordinance N II of 1980. Thereafter, the petitioner filed the present constitution petition' to assail the order of eviction dated 29th May, 1973 passed by the Rent Controller and order dated 18th October, 1979 of the learned Additional District Judge whereby the order of the Rent Controller was maintained in appeal.

3. Learned counsel for the petitioner argued that the Appellate Authority acted illegally in dismissing the appeal without deciding the aforenoted applications. It was asserted that had these applications been heard and decided, the appeal of the petitioner would have succeeded. On this question, the position taken by the respondent .vas that the main appeal was decided by the learned Additional District Judge after disposal of the applications submitted by the petitioner and that despite the fact that some pages of the record of the Appellate Court are missing, yet it is discernible from the available record that these applications were disposed of before the learned Additional District Judge proceeded to hear the appeal itself on merits. In support of this assertion the respondent has filed an affidavit of the counsel who was conducting the appeal on his behalf. No counter‑affidavit, however; has been filed on behalf of the petitioner to rebut the factual assertion made in the affidavit of the learned counsel. It is also important to note that no objection was made by the learned counsel before the Appellate Authority at the time of addressing the arguments on the main appeal, as neither any such objection stands recorded in the order‑sheet nor any such application objecting to the hearing of the appeal on merits was made. The learned Additional District Judge noted that the written arguments were filed on behalf of the petitioner and the same were filed on the ‑record. These written arguments are also not on the record. I asked learned counsel for the petitioner to make available a copy of the written arguments submitted' before the Appellate Authority for perusal from his brief so as to verify whether objection regarding non‑disposal of these applications. was taken therein or not. The written arguments were not made available as it was stated that the same were not with the learned counsel.

4. I have gone through the appellate record. The appeal was filed on 14th July, 1973 and it is pity that it took almost six years to decide this rent appeal and in all these years it remained pending before different appellate Courts. A perusal of the order‑sheet shows that the same is not complete. However, as regards disposal of the applications, reference

may be made to the order dated .18tb March, 1.978 which, reads "The appellant submits that his counsel is busy in another Court and be, would submit written arguments on the applications on 21st March, 1978. There is note of the Ahmad‑dated 21st March, 1978 that the case was fixed for written arguments on all the applications. The case was adjourned to 21st March, 1978 for filing of written arguments on the applications. Order dated 30th April, 1978 shows that last opportunity for Addressing arguments on the applications was sought and the case was adjourned to 14 May, 1978, on which date it stands noted that the arguments were, heard and the case was set down for orders on 7th May, 1978. On this date, counsel for the petitioner sought‑time to produce some .law. books. The matter was adjourned to 14th May, 1978. On this date; there is a scored out note in Urdu which states that the case is being adjourned to 1st June, 1978 for production of law books. Then there is an order in the handwriting of the learned Additional District Judge, which reads. "'To come up for arguments (main appeal) on 1st June, 1978." Thereafter, the order‑sheet shows that the appeal itself was being fixed for arguments, but was then adjourned due to one reason or the other, and then on the order‑sheet the order dated 12th September, 1978 clinches the issue‑ as, it stands noted therein that the decision on the applications had already been made. Though the order disposing of these applications is not on the file yet from the various orders pointed out, above, it can safely be inferred that the learned Appellate Authority proceeded‑ to hear the appeal on merits after disposal of the said applications. The sworn affidavit of the learned counsel, who had conducted the appeal before the Appellate Authority, assumes importance in the above context when the same remains unrebutted. It is unfortunate that on account of non‑availability, of the order disposing of these applications, on the record, the petitioner came out with the plea that the appeal was disposed of without deciding these applications. This plea, as demonstrated above, is incorrect and false as the order‑sheet does show that the applications were disposed of before hearing arguments on the main appeal and before deciding the appeal itself. The petitioner has approached this Court with false plea and, as such, he stands disentitled to invoke constitutional jurisdiction the same being essentially an equitable and discretionary jurisdiction This is sufficient to dismiss this petition and refuse the relief prayed for.

5. 1 have, however, considered the other submissions made by the learned counsel on behalf of the petitioner. These were that the order passed in appeal was liable to be quashed as the Appellate Authority failed to decide each issue separately; that the property as a whole is a residential building and. as such, the shop in question cannot be got vacated for non‑residential purposes and that the bona fide of the require ments stands negated from the statement of the respondent himself as while appearing as P. W. I he stated as under :‑

It is appropriate to deal with the last submission first. The truth of the matter is that the learned counsel has preferred to omit from reading what was stated immediately thereafter. The full sentence reads as under :‑

This statement was made by him on 1st February, 1973 and admittedly he had no shop with him at that time, as on petitioner's own showing the possession of the other shops in respect of which the ejectment petitions were pending, was delivered to him in November, 1974. The bona fides of the requirement, as such, does not stand negatived from the afore- noted statement of the respondent.

No illegality or irregularity was committed by the Appellate Authority by not deciding each issue separately. It is not the case of the petitioner that any argument relating to the issues pressed before him remained unattended to. No fault, therefore, can be found in the judgment on this .score. There is no merit in the other submission also as the shop in dispute was rented out to the petitioner as a shop and the 'same cannot be termed as a residential premises as other portion of the building was residential.

6. Lastly, it was argued that the Rent Controller had no jurisdiction as the plot over which the construction was made was part and parcel of Sammanabad Scheme which includes evacuee land also and as permission was not obtained from the Central Government or the Custodian for its inclusion in the Scheme itself, which makes the Scheme illegal and unauthorized. This is a misconceived argument. The petitioner having admittedly been inducted by the respondent into the shop as a tenant cannot be allowed, to deny the title of the landlord and in any case the petitioner, a tenant, could not challenge the legality or otherwise of Sammanabad Scheme before the Rent Controller. The relationship of tenant and landlord was not even denied before him and, as such, the Rent Controller had the jurisdiction to order eviction of the petitioner from the shop in dispute.

7. The net result of the above discussion is that there is no merit in this petition and the same is, therefore, dismissed with cost.

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