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Civil Petition for Special Leave to Appeal No. 1404 of 1983, decided on 18th January, 1984.

(Against the judgment of Lahore High Court dated 6‑11‑1983 in Writ Petition No. 4713 of 1983).

‑‑Art. 185 (3)‑West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S. 13‑Concurrent finding of fact by Courts below.‑High Court from material on record, under constitutional jurisdiction also finding that petitioner who admittedly was tenant was trying to perpetuate occupation of property without paying rent to any landlord‑Finding of fact‑Finding of fact recorded by tribunal having exclusive jurisdiction in matter suffering from no legal error‑Supreme Court cannot reappraise such material‑Supreme Court satisfied that High Court in refusing interference in constitutional jurisdiction with such finding proceeded on correct principles of law and equity‑Leave to appeal refused.‑[Finding of fact].

Abdul Majid Sheikh, Advocate Supreme Court and Tanvir Ahmed, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing : 18th January, 1984.

The petitioner, a tenant, seeks leave to appeal against the judgment of the Lahore High Court dated 6‑11‑1983 whereby a constitutional petition filed by him against the ejectment order passed by the Rent Controller and affirmed in appeal by the Additional District Judge was dismissed.

Mahmood Khan, the predecessor‑in‑interest of respondent No. 1 was transferred a portion of Nehal Singh building. His heirs and successors‑in‑interest instituted an eviction application against the petitioner but failed before the Rent Controller on 15‑9‑1970 on the ground that the portion transferred to them could not be identified from the joint transfer made in favour of a number of persons. They were directed to take their claim to civil Court and get it settled there first. An appeal filed against this order was dismissed in default and its restoration was refused. In August, 1978 Muhammad Jahangir Khan, respondent No. 1, by a registered deed purchased the portion earlier transferred to Mahmood Khan and claimed to have served a notice under section 13‑A of the Rent Restriction Ordinance on the petitioner. On his refusal to pay rent or to acknowledge him as transferee of the portion in his occupation be filed an ejectment application which was dismissed by the Rent Controller on the 29th of April, 1980 on the ground that the earlier application in respect of the same portion having failed, the title of respondent No. I required adjudication by civil Court. An appeal was filed by respondent No. I which was allowed by the Additional District Judge taking note of the events which had happened after the dismissal of the earlier ejectment application. These are noted in the appellate order of the Additional District Judge dated 21‑7-1981 and are as follows:‑

"Thereafter a transfer order has been issued to the legal representatives of Muhammad Mahmood Khan deceased specifying the exact portion of the property transferred to them. The appellant has purchased the property in dispute from the said legal representatives. Since now it has been indicated in the transfer order as to which portion of the property has been transferred to the predecessors‑in‑interest of the appellant, the decision given in the previous ejectment application does not in any way bar the present application. The Transfer Order referred to above has been placed on record by the appellant. In this view of the matter, the impugned order is erroneous and liable to be set aside. The learned Rent Controller is very much competent to determine the relationship of landlord and tenant between the present parties on the basis of the Transfer Order mentioned above."

Allowing the appeal, the Additional District Judge remanded the proceed ings to the Rent Controller for fresh decision.

The Rent Controller finding that the relationship of landlord and tenant was established between the parties, notice under section 13‑A was served and the petitioner did not claim to have paid any rent to the transferee ordered his ejectment. An appeal filed by the petitioner failed before the Additional District Judge. He thereupon challenged the decision by a constitutional petition which too was dismissed.

The learned counsel for the petitioner contends that the respondent No. 1 bad not in any manner improved his position from that of his predecessor‑in -interest who was directed to get the matter adjudicated from the civil Court. The transfer document which was held to have been made a difference to the claim, subsequent to its rejection by the Rent Controller in 1970, did not, in fact, have the effect of so affecting the claim because in it also the property transferred to Mahmood Khan was not described by metes and bounds nor was it identifiable as such. According to the learned counsel the previous decision could not be ignored and hard the field.

The question raised by the learned counsel for the petitioner was, in fact, the substance of the controversy before the appellate Court twice. Once when the remand order was passed on 21‑7‑1981 and the next time on the 15th of September, 1983 when the appeal against ejectment was rejected. On both the occasions the finding clearly was that the transfer order issued to the respondent No. 1 subsequent to the earlier adjudication made the difference and showed the respondent to be the transferee of the property. This was a finding of fact. The High Court has considered it and has come to the conclusion that it was supportable from the material on record. In addition to it, the High Court in the constitutional and equitable jurisdiction has recorded the following conclusion:‑

"I have carefully considered the material available on the record and after hearing the submissions of the learned counsel for the petitioner, I have been left with the impression that the petitioner who admittedly is the tenant is trying to perpetuate occupation of the property without paying any rent to any landlord. The pleas of the petitioner have been threadbare examined by the Rent Controller as well as the appellate authority on questions of fact properly determined. There is thus no scope left for my interference in exercise of my discretionary constitutional jurisdiction with the concurrent orders of the two Courts below in the circumstances of the present case." ,

A finding of fact has been recorded by the Tribunal having exclusive jurisdiction in the matter which is found to suffer from no legal error as such. A reappraisement of the same material cannot take place in this Court and we are satisfied that in refusing interference in the constitutional jurisdiction with such a finding the High Court proceeded on correct principles of law and equity. Leave to appeal is, therefore, refused.

M.Z. M. Leone refused.

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