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Civil Petition No.692‑R of 1983, decided on 10th March, 1984.

(From the judgment dated 1‑10‑1983 of the Peshawar High Court Circuit Bench at Abbottabad, passed in S.A.O. 5 of 1979).

‑‑Art.185 (3)‑‑West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S.13‑‑ Ejectment on ground of default in payment of rent and personal need‑‑Relationship of landlord and tenant established and non‑payment of rent/personal need proved‑‑Order of High Court directing ejectment of tenant‑petitioner upheld‑‑Leave to appeal refused.

Qazi Abdur Rashid, Advocate Supreme Court instructed by Karam Elahi Bhatti, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 10th March, 1984.

M.S.H. QURAISHI, J.‑

‑ The petitioner is aggrieved by the order of the Peshawar High Court, dated 1‑10‑1983, whereby the respondents/ landlords' second appeal was accepted and the petitioner was directed to hand over vacant possession of the shop in question.

2. The shop, which was an evacuee property, had been transferred in favour of one Nizam Din under a P.T.O. and P.T.D. dated 8‑3‑1961 and 9‑12‑1963, respectively. Nizam Din moved an application under section 13 of the West Pakistan Urban Rent Restriction Ordinance for the ejectment of the petitioner on the ground of non‑payment of rent. On the petitioner's denial of relationship of landlord and tenant. an issue was framed on that question but before the same could be decided, the parties arrived at a compromise and the ejectment application was, at the instance of Nizam Din, dismissed. He, thereafter, sold the property to the present respondents who later instituted an ejectment proceeding on the grounds of non‑payment of rent and personal need. In this proceeding, too, the relationship was denied. The issue was decided against the respondents and in consequence the ejectment application was dismissed by the Rent Controller on 19‑2‑1979. The reason for the dismissal was that by the withdrawal of the earlier petition instituted by Nizam Din, in which the question of relationship had been in issue, that question had become res judicata and that since the respondents were claiming under Nizam Din, no such relationship can be said to exist between these and the petitioner. The respondents' appeal before the District Judge failed for precisely the same reason, whereupon they moved the High Court in second appeal which was accepted by the impugned order as aforesaid.

3. It is not denied that the shop in question was an evacuee property, that it has been transferred under a P.T.D. in favour of Nizam Din, that Nizam Din had served a notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and that the present respondents had purchased the shop from Nizam Din and had themselves also sent a notice to the petitioner. It is also not denied that the petitioner has been in occupation of the property since before the transfer made in favour of Nizam Din. That being so, the High Court was fully justified in holding that the transfer of the property brought into existence a statutory relationship of landlord and tenant between Nizam Din and the petitioner and after its purchase by the respondents, between them and the petitioner. The High Court also found, after examination of the material relevant to the disposal of the earlier ejectment petition of Nizam Din, that the issue of relationship struck in that petition had neither been determined by the Controller nor otherwise dealt with in the compromise and that, therefore, the withdrawal of that petition did not operate as res judicata in regard to that question.

4. Learned counsel lastly urged that there was a plea of estoppel also raised which had yet to be determined but he was unable to mention the basis of such plea.

5. We thus find no merit in this petition which we accordingly dismiss.

S. Q. Petition dismissed.

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