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Civil Petition for Special Leave to Appeal No. 117 of 1975, decided on 26th February, 1975.

(On appeal from the judgment and order of the Lahore High Court dated 27-1‑1975 in S. A. O. No. 37 of 1975).

----S. 13(6)‑Ejectment on ground of default in payment of rent‑Lessee resisting ejectment application on ground that what was leased to him by lessor was an open site which in fact belonged to Local Authority and not to lessor and that lessee had raised structure on site at his expense, therefore, lessee was not liable to ejectment at instance of lessor‑Lessee further pleading that he had since received notice for said local authority to vacate premises by removing structure‑Lessee in spite of order from Rent Controller for deposit of arrears of rent with specific period not depositing same but filing appeal Held, though open site over which lessee had built up structure did not belong to lessor but lessee having admitted to be person in occupation admitted himself as tenant of owner of structure Lessee, therefore, not estopped from pleading absence of relationship of landlord and tenant and liable to ejectment not only on account of default but also for striking off defence in circumstances.

S. M. Nasim and Malik Sher Bahadur, Advocate Supreme Court instructed by Sh. Abdul Karim, Advocate‑on‑Record for Petitioner.

Nemo for Respondent.

This petition is by a tenant whose ejectment has been ordered by the Rent Controller for being in arrears of rent and whose appeals before the Additional District Judge and the High Court have failed.

The petitioner resisted the application for his ejectment oil the ground that what was leased to him by the respondent in 1960, was an open site which in fact belonged to the Lahore Improvement Trust and not the respon dent and that he (the petitioner) had raised a structure on the site at his own expense, therefore, he was not liable to ejectment, at the instance of the respondent herein. The petitioner also pleaded that he had since received a notice from the Lahore Improvement Trust to vacate the shop by removing the structure.

The learned Rent Controller found that the petitioner had executed a rent note in favour of the respondent on 9‑9‑1961 agreeing to pay rent at the rate of Rs. 60 p. m. Even in subsequent litigation between the parties, regarding the premises in dispute, the petitioner against made a statement before the Rent Controller on 21‑10‑1967 admitting his occupation of the premises in dispute as tenant under the respondent on a monthly rental of Rs. 60. Therefore, the Rent Controller rejected the plea raised by the petitioner and ordered his ejectment, the fact that the petitioner had not paid the rent from 1‑10‑1967 to 30‑6‑1968, not being seriously disputed. The order of ejectment has been maintained by the appellate authority and the High Court. The High Court has taken the view that in view of the clear admissions in 1961 and again in 1967, the petitioner was estopped from disputing the title of the respondent in the premises in dispute, not withstanding the notice purported to be issued by the Lahore Improvement Trust, claiming ownership of the site. The learned Single Judge went on to observe that it appeared that the petitioner had manoeuvred the issuance of the notice by the Improvement Trust to forestall his ejectment from the, premises in dispute.

In support of this petition, learned counsel for the petitioner submitted that the two admissions relied upon by the learned Rent Controller and the learned Judge in the High Court, so as to operate as complete estoppel against the petitioner to dispute the title of the respondent in the premises in dispute, were not properly proved in proceedings culminating in this petition. The fact that in the first application for ejectment, the petitioner had admitted his tenancy under the respondent in respect of the premises in dispute was not denied. It was not denied either that the copies of the statements in the earlier ejectment proceedings were brought on the record of the instant proceedings and exhibited. Not only that, it appears that in the instant proceedings the Rent Controller bad on 30‑9‑1968 ordered the petitioner under section 13(6) of the Ordinance to deposit Rs. 660, as arrears of rent within a specific time. Instead of complying with the order, the petitioner filed an appeal which was dismissed by the appellate authority on 12‑7‑1969. His second appeal in the High Court succeeded on 7‑12‑1972, but the case was remanded to determine whether the Rent Controller had jurisdiction in the case. The preliminary issue was again found against the petitioner vide order dated 7‑11‑1974. That being so, the petitioner is not only liable to ejectment on account of default, but also because of the striking off his defence under section 13(6) of the Ordinance.

There is no merit in this petition, which is hereby dismissed.

M. Z. M. Petition dismissed.

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