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Writ Petition No. 3516 of 1982, decided on 14th March, 1984.

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)--

---Ss. 13(2) & 13-A--Ejectment--Relationship of landlord and tenant- Proof--House in dispute owned by two brothers in equal shares--Landlord purchased said house to extent of other brother's share--Landlord, held, was to be regarded as joint owner to extent of 1/2 share, though it was not partitioned--Judgment of Appellate Court that there existed no relationship of landlord and tenant between parties, declared to be without lawful authority being not based on facts on record--Case remanded to Appellate Court to decide appeal afresh in circumstances.

Zulfiqar Ali Bhatti for Petitioner.

Ahmad Hussain Shah Bokhari for Respondent No. 3. Respondent No. 4: Ex parte.

Date of hearing: 24th January, 1984.

JUDGMENT

The facts forming the background of this writ petition briefly are that the petitioner filed a petition before the Rent Controller, Lahore under section 13(2) of the Urban Rent Restriction Ordinance, 1959 against respondents Nos. 3 and 4 seeking the ejectment of respondent No.3 from property bearing House No.19 (ground floor) Street No. 5 Prem Nagar, Lahore. It was alleged by the petitioner that the portion of the house, the subject-matter, was purchased by tht_ petitioner from respondent No.4, vide a registered sale-deed, date: 24-1-1978. It was one of the terms of the transfer that on the sale becoming absolute the possession (' the ground floor of the house was to be delivered to the petitioner d if by that time the portion sold happened to be on rent in that a nt respondent No.4 was to assign the rent to the petitioner and issue necessary direction to the tenant.

When the sale became absolute a notice under section 13-A was served on respondent No.3 who was by that time keeping the premises at a monthly rent of Rs.300. The rent for the months of August, 1978 to January, 1979 was demanded by the petitioner from respondent No.3 which was neither paid to him not tendered by respondent No.3, as such he committed default as to the payment of rent. It was also alleged that the premises were required by the petitioner bona fide for its own occupation and use.

2. Respondent No.3 resisted the petition for ejectment by denying the relationship of landlord and tenant. According to the pleadings of the parties the learned Rent Controller framed the following preliminary issues:-

(1) Whether the relationship of landlord and tenant exists between the parties O . P . P :

(2) Whether the petition is filed by a duly authorised person O.P.P.

(3) Relief.

The learned Rent Controller on issue No. 1 gave his finding in favour of the petitioner by holding that the relationship of landlord and tenant had been proved. Issue No.2 was also decided in favour of the petitioner.

The learned Rent Controller observed that respondent No. 3 was a defaulter, consequently he ordered the ejectment of respondent No. 3, vide his order, dated 12-7-1980.

3. Being aggrieved therefrom respondent No. 3 filed an appeal which came to be decided by Ch. Nafees Ahmad Bajwa, Additional District Judge, Lahore. The learned Additional District judge in taking his view of the evidence reversed the finding of the learned Rent Controller on issue No. 1 and decided the same in the negative. However, the finding on issue No. 2 was upheld but in view of his finding on issue No.l he accepted the appeal, set aside the order of the learned Rent Controller and dismissed the petition for ejectment with costs, vide his judgment, dated 8-3-1982.

4. In this writ petition having been brought from the said judgment of the learned Additional District Judge the learned counsel on both the sides have been heard. The learned counsel for the petitioner has supported the order of ejectment passed b; the learned Rent Controller and the learned counsel for respondent No. 3 has supported the judgment of the learned Additional District Judge.

5. The case is liable to be remanded to the learned Additional) District Judge for a decision afresh in the appear in view of the admitted position, that Muhammad Ashfaq and Muhammad Akhlaq, the two brothers were owners to the extent of share each, the property had not so l far been partitioned between the two brothers and Muhammad Ashfaq had sold his share to the petitioner who had served a notice to respondent No.3, whether it was open to the learned Additional District Judge so as to say that the relationship of landlord and tenant did not exist at all. If the petitioner were regarded as the joint owner of the house not partitioned then the relation to that extent of the tenant did exist in which case the tenant was under an obligation to pay a proportionate rent to the petitioner as joint landlord.

6. Resultantly the judgment, dated 8-3-1982 of the Learned Addl. District Judge, Lahore is declared as without lawful authority for having not resolved issue No.l in keeping with the facts on the record and within the true perspective of law. The case is remanded to the learned Addl. District Judge, Lahore to decide the appeal Afresh. In the circumstances of the case there is no order as to the costs since the error has proceeded from the Court.

H. B. T.

Order accordingly.

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