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Writ Petitign No.5397 of 1983, decided on 26th January, 1985.

---S.13--Martial Law Regulation No.118--Eviction--Relationship of landlord and tenant--Establishment of--Property in dispute admittedly belonging to trust/petitioner was taken on lease for setting up private school therein--School set in there subsequently was taken over by Government in 1972 in pursuance of Martial Law Regulation No.118--Contention of landlord that Government had stepped into shoes of lessee and become tenant of petitioner--Held, had force--Relationship of landlord and tenant established between parties in circumstances.

---S.13--Ejectment--Relationship of landlord and tenant--Plea of default--Relationship of landlord and tenant proved between parties by irresistible evidence--Rent Controller, held, could order ejectment of tenant without holding inquiry into plea odefault

raised by petitioner/ landlord.

Eitzaz Ahsan for Petitioners.

S.M. Zubair, Asstt. A.-G. for Respondents.

Date of hearing: 26th January, 1985.

Facts giving rise to this writ petition are that the petitioner, Madrassa Zia-ul-Aloom, which is a .trust, filed an application under section 13 of the Punjab Urban Rent Restriction Ordinance, 1959, for eviction of respondents Nos. 2 and 3, namely, Government of the Punjab through Secretary, Education Department, Lahore, and the Director of Education, Lahore Region, Lahore, hereinafter referred to as the respondents, from certain premises. It was inter alia alleged by the petitioner that the respondents had not paid rent since Ist October, 1972. The respondents resisted the application denying that there was relationship of landlord and tenant between the parties. The learned Rent Controller, who was seized of the application, framed an issue of the question of tenancy and after recording the parties' evidence decided that the respondents' occupied the disputed premises as tenants of the petitioner. He, therefore, by his order, dated the 10th May, 1983, directed the respondents to vacate the disputed premises. The respondents went in appeal before an Additional District Judge who reversed the finding of the Rent Controller and dismissed the ejectment application vide his order, dated the 26th September, 1983. The petitioner has now invoked the constitutional jurisdiction of the Court to assail the drder of the learned appellate authority.

2. It was contended by learned counsel for the petitioner that the premises in question belonged to the petitioner and were taken on lease by one Irshad Ahmad in 1970 for setting up a private school therein and that he (Irshad Ahmad) was occupying the premises as tenant when the school was taken over by the Government in 1972 in pursuance of Martial Law Regulation No.118. Argument proceeds that since Irshad Ahmad was running the school at the time when it was taken over by the Government the respondents stepped into the shoes of Irshad Ahmad and became tenants of the petitioner.

3. The petitioner examined Taj Muhammad (A.W.1), Haji Noor Muhammad (A.W.2) Irshad Ahmad (A.W.3) and Manzoor Ahmad (A.W.4) and also produced rent note, Exh.P.1, executed by the said Irshad Ahmad, to prove its case. The respondents produced two witnesses, namely, Mst. Anwar Sultan (R.W.1) and Tasneem Kausar (R.W.2). It was stated by them that before it was taken over by the Government, the school was run by the trust (petitioner) and not by Irshad Ahmad.

4. In reply to the arguments of learned counsel for the petitioner, it was urged by the learned Assistant Advocate-General, who appeared on behalf of the respondents, that there was nothing on the record to show that the premises in dispute belonged to the trust, namely, Madrassa Zia-ul-Aloom (petitioner), and that if it were shown that the premises vested in the trust, the respondents would be treated as tenants for the petitioner.

5. It is in the evidence of Mst. Anwar Sultana and Tasneem Kausar, who were examined by the respondents as their witnesses, that the premises in question belonged to the trust. Thus, it is clear from the respondents' own evidence that the disputed property vested in the trust when the school being run there was taken over by the Government. Therefore, according to the above concession of the learned counsel A for the respondents, there exists the relationship of landlord and tenants between the parties. Resultantly, I set aside the finding of the learned Additional District Judge on the question of tenancy and restore that of the learned Rent Controller.

6. Since the respondents had denied tenancy but it has been proved that they were occupying the disputed premises as tenants of the petitioner, the learned Rent Controller could order their ejectment without holding inquiry into the plea of default raised by the petitioner. In this view of the matter, the learned Additional District Judge was not justified in setting aside the order of the learned Rent Controller.

7. Resultantly, I accept this writ petition, set aside the order of the learned Additional District Judge and restore that of the learned Rent Controller. The respondents are, however, allowed four months time to vacate the disputed premises. During the period the order of eviction will not be executed. There shall be no order as to costs.

H.B.T Writ issued.