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Writ Petition No. 2765 of 1983, decided on 30th September, 1984.

---Art. 9--West Pakistan Urban Rent Restriction Ordinance (VI of 1959), Ss. 13 & 13-A--Ejectment on ground of default in payment of rent--Tenant alleging that she made an advance payment of Rs.5,000 towards rent to (old') landlord--Property alienated through registered sale-deed in favour of (new) landlord---Tenant not producing (old) landlord in support of her claim to determine question as to whether he had received money from her towards rent or same was a charge on property in dispute--Lower Court also failing to summon (old) landlord as Court witness for just and proper determination of issue--Parties also at variance regarding rate of rent but same was not settled by Court before although it was necessary for determination of default or adjustment issues before them--order of dismissal of ejectment application by Additional District Judge, held, not legal in circumstances Case remanded for decision in accordance with law.

C.M. Latif Rawn for Appellant.

M.A. Butter for Respondents.

Date of hearing: 30th September, 1984.

Ejaz Yusuf petitioner has challenged order, dated 2-6-1983 of the learned Additional District Judge, Lahore, by means of this Consti tutional petition, whereby the latter set aside order of the learned Rent Controller, Lahore, dated 27-2-1983 and dismissed petitioner's application seeking ejectment of Mst. Razia Begum respondent from the disputed property.

2. Mst. Razia Begum respondent occupied the disputed property, firstly as tenant under one Muhammad Sadiq Butt and thereafter under the petitioner. On 15-10-1981, through registered sale-deed, petitioner purchased the disputed portion of tire property from Muhammad Sadiq Butt. He served the afore-said respondent with a notice under section 13-A of the Rent Restriction Ordinance, 1959 which was received by her. On refusal to pay rent of the disputed property the petitioner filed ejectment petition against her. The application was contested by her on the ground that she had already advanced Rs.5,000 towards rent of the disputed property to the previous owner and the same having been not exhausted, the application was not maintainable. It was also asserted that the rate of rent of the disputed portion of the property was Rs.35 and not Rs.150 p.m. The assertion of the petitioner that the portion of the house in dispute was required by him for personal use was also controverted.

The learned Rent Controller on the basis of the pleadings of the parties framed following issues:-

(1) Whether the respondent has paid Rs.5,000 to the previous owner as advance rent If so its effects O.P.R.

(2) Whether the application is not maintainable

(3) Whether the respondent is defaulter in payment of monthly rent

(4) Whether the petitioner needs the premises in dispute for his bona fide personal use in good faith

(5) Relief

He recorded evidence led by the parties and, vide order, dated 27-2-1983 directed respondent's ejectment from the disputed property allowing two months time to her to vacate the premises in dispute. Feeling aggrieved against the aforesaid order she preferred appeal which was accepted vide order, dated 2-6-1983 of the learned Additional District Judge, Lahore. Hence this petition.

3. Learned counsel for the petitioner contended that the petitioner had purchased the property in dispute free from all incumberances as is evident from the contents of sale-deed and under the law respondent was obliged to pay him rent therefor. The amount of Rs.5,000 allegedly advanced by her to the previous owner could not be a charge on the disputed property, particularly when she did not produce Muhammad Sadiq who is alive and available to prove the amount received by him. It was further contended that the non-production of previous landlord by her to prove the rent note as well as the receipt issued by him in lieu of receiving Rs.5,000 .as advance would raise presumption that either she did not advance Rs.5,000 to him or that the same had been adjusted/paid by him. It was contended that the learned Additional District Judge has not adverted to this aspect of the case and relied on the rent note executed by Mst. Razia Begum in favour of the previous owner and the receipt executed by Muhammad Sadiq Butt in her favour. It was also stated that neither the Rent Controller nor the Additional District Judge had settled the rate of rent of the disputed property nor passed any order under section 13(6) of the Rent Restriction Ordinance, 1959, in this case.

4. Learned counsel for the contesting-respondent, on the other hand, contended that the non-production of previous owner in this case did not materially effect respondent's case because the execution of the receipt by him in favour of the respondent was proved through the scribe of the receipt. He, however, could not successfully meet the contention of his adversary that the learned Additional District Judge has not taken into consideration the non-prosecution of Muhammad Sadiq Butt, the executant of the receipt and the non-determination of rate of rent of the disputed premises in occupation of the respondent.

5. The contentions raised by learned counsel for the parties have been considered in the light of the documents on the file. The receipt witnessing payment of Rs.5,000 by Mst. Razia Begum respondent was executed by Muhammad Sadiq Butt, the previous owner, who had alienated the disputed property through registered sale-deed free from all incumberances in favour of the petitioner. His testimony was, therefore, necessary to determine the question as to whether he had received Rs.5,000 from Mst. Razia Begum towards the rent of the disputed property and the same was, a charge on the property in dispute. His non-production by the respondent raises presumption against her that had he been produced he would have deposed against her. The learned lower Courts could have summoned him as Court witness for just and proper determination of the issue in question. It is also true that the parties were at variance regarding rate of rent of the disputed property but the same was also not settled although necessary for determination, of default or adjustment.

5. Taking all the circumstances in view the impugned order, dated 2-6-1983 of the learned Additional District Judge, Lahore is set aside and declared to be of no legal effect.

7. In the result this petition is allowed and the case is remanded to the learned Additional District Judge, Lahore for expeditious decision of the matter in accordance with law. 8. There shall be no order as to costs.

M.Y.H Case remanded

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