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Writ Petition No. 1902 of 1982, decided on 16th January, 1985.

---Ss. 2(c)(i) & 13--Civil Procedure Code (V of 1908), O. I, r. 10--Relationship of landlord and tenant--Plea raised in High Court--Consequences--Petitioner raised plea in High Court that he was paying rent to wife of landlord and claimed to be tenant under wife of landlord--Plea raised in High Court and not raised in Courts below, did not find support from evidence on record--Plea, held, frivolous, mala fide and raised by petitioner simply to delay proceedings--Such plea which tenant was not prevented to raise in Courts below, could not be raised at belated stage in High Court.

---S. 15--Provisional Constitution Order (1 of 1981), Art. 9--Writ jurisdiction--Held, unless defect in jurisdiction could be found orders of Rent Controller or of Appellate Authority would not be open to challenge in Constitutional jurisdiction:

Muhammad Sharif and another v. Muhammad Afzal Sohail and others P L D 1981 S C 246 rel.

Aamer Aziz Syed for Petitioner.

Ch. Abdul Razzaq for Respondent No. 3.

Date of hearing: 16th January, 1985.

This writ petition arises out of ejectment proceedings. Mr. Zubda-Tul-Hussain, Rent Controller, Lahore has ordered the eviction of the petitioners from a house vide his order, dated 25-10-1981. The petitioners challenged the orders in appeal but Mr. Muhammad Sarfraz Cheema, learned Additional District Judge, Lahore dismissed the appeal on 13-4-1982. The petitioners have invoked the constitutional jurisdiction of this Court. The writ petition was admitted to consider the question whether tender of rent by the son to the wife of the landlord was a good tender.

2. The facts of the case are that the house in question was rented out to late Muhammad Abdullah petitioner No. 1 in 1969 at the rate cf Rs.300 per month. In 1980 an ejectment application was brought against Muhammad Abdullah on the ground cf default and personal need. Ijaz Ahmad petitioner No.2 son of late Muhammad Abdullah moved an application under Order 1, rule 10 for being impleaded as a party as according to him he was the tenant and not his father. The landlord without conceding the tenancy in favour cf Ijaz Ahmad filed an amended petition and impleaded Ijaz Ahmad as a party to the proceedings. After taking evidence the Rent Controller cacre to the conclusion that Muhammad Abdullah was tenant and not Ijaz Ahmad, the son. For this purpose reliance was placed on the evidence of Muhammad Saeed P.W.1, who acted as an agent on behalf of the landlord and arranged the tenancy and even received rent from the tenants on behalf of the landlord. The case of Ijaz Ahmad petitioner No. 2 was that he was a tenant in the property and not his father and that he was a tenant under Zuhra Ihsanullah, wife of Ihsanullah Taseer, the owner of the property. Ijaz Ahmad took up the plea that Mst. Zuhra Ihsanullah alone was competent to bring the ejectment application and not Ihsan Ullah Taseer who had actually brought the ejectment application. The Rent Controller did not accept the plea and found that Muhammad Abdullah was a tenant under Ihsan Ullah Taseer. As regards the question whether the tender of rent by the son of the tenant to the wife of the landlord was a good tender, this plea has been taken for the first tine only in the writ petition. The learned counsel for the respondent is right in submitting that the petitioners cannot be permitted to raise- this plea at this stage. He has referred to a long list of authorities which need not be referred to at this stage.

3. I have gone through the evidence with the help of the learned counsel. The plea raised now in the High Court that the rent was being paid to the wife of Ihsanullah Taseer does not find support from evidence. Muhammad Saeed who may be treated as a central figure in the controversy has stated that it was he who used to collect the rent and then pass it on to the wife. He was not even cross-examined on the question whether Muhammad Abullah was the real tenant or not. The plea raised by the son now that it was the wife who was the landlord in the eye of law, is not available to him, because, it was Muhammad Saeed, who is acting as an agent of the landlord and could be treated as a landlord for this purpose but not the wife.

4. The learned counsel for the petitioners has also argued that this was not a case where ejectment should have been ordered straightway after the relationship of landlord and tenant between Ihsanullah and Muhammad Abdullah was proved in spite of the denial of Muhammad Abdullah. He has submitted that only where the denial was mala fide or frivolous such an order would be justified. The facts of the case, as they are, do not provide for a concession to the petitioners even on this plea. Ijaz Ahmad has frivolously raised the objection that his father was not a tenant. This objection has been raised only in order to create confusion in order that the proceedings be delayed. If he waspaying rent on behalf of his father, as he has placed now, in the High Court, there was nothing preventing him from doing so before the Rent Controller. Similarly even if he was paying rent to the wife of Ihsanullah, he cannot in law object to the competence of the ejectment petition being' brought by Ihsanullah. The objection taken by Ijaz Ahmad was, therefore, not only frivolous but also mala fide and upon proof of the relationship of landlord and tenant contrary to the plea of the tenants, the Rent Controller was justified, in the circumstances of the case, to order the ejectment of the tenants.

5.The learned counsel for the respondent has also argued that after the abolition of the second appeal the scope of the writ petition was much more restricted than that of the second appeal. In this connection he has referred to the case of Muhammad Sharif and another v. Muhammad Afzal Sohail etc. P L D 1981 S C 246. The objection is well taken and unless defect in jurisdiction could be found the orders of the Rent Controller or of the appellate authority would not be open to challenge in a constitutional jurisdiction.

In view of the above considerations I find no merit in the writ petition. It is dismissed with no order as to costs. The petitioners are allowed a period of one month to hand over the vacant possession of the property to the respondent..

H.B.T. Writ refused.