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Writ Petition No. 30 of 1981, decided on 9th October, 1984.

--S. 15--Provisional Constitution Order (1 of 1981), Art. 9--Appeal- Jurisdiction of Appellate Authority--Matter of believing or disbelieving witness, held, fell within ambit of jurisdiction of Appellate Authority- There being no material placed on record to show any misreading or gross mis appreciation of evidence of parties on part of Appellate Authority, order of Authority could not be declared illegal merely on basis of oral assertions or conjuctures in constitutional jurisdiction of High Court.

Nasir Ahmad v. Nazar Muhammad P L D 1974 Lah. 489 ref.

Tariq Sher for Petitioner.

Asif Saeed Khan Khosa for Respondent.

Nemo for Respondent No.1. .

Date of hearing: 9th October, 1984.

This is a writ petition filed by a tenant to challenge the validity of the order of the learned District Judge/appellate authority under the Rent Restriction Ordinance, Dera Ghazi Khan, dated 2-12-1980 accepting the eviction application filed by the landlord and ordering the tenant's eviction.

2. The brief facts are that the respondent landlord Haji Muhammad Sharif purchased the property on 23-2-1969 from the original transferee under the Displaced Persons (Compensation and Rehabilitation) Act, 1958 Mst. Eidu daughter of Jamal Shah. The property was in possession of Din Muhammad writ petitioner and thus he became statutory tenant under the landlord. The proceedings for eviction were initiated by the respondent landlord on the grounds that the tenant was not paying the rent and was also impairing the value of the house. The tenant while controverting the allegations made in the eviction application also raised the pleas of res judicata and limitation and denied the relationship of landlord and tenant between the parties and thus challenged the jurisdiction of the Rent Controller to try the eviction application. He also claimed that the landlord had sold the house in dispute to him and that a remedy by way of suit for specific performance had been restored to by him. A further plea raised was that the tenant had spent a sum of Rs.3,000 on the repairs of the house which he was entitled to recover from the landlord. The Rent Controller framed three issues relating to jurisdiction, existence of relationship of landlord and tenant between the parties and whether the application was barred by res judicata. The Rent Controller had directed the tenant to deposit arrears of rent before 15-5-1978 and on his failure to do so within the stipulated period struck off the defence. There was an appeal filed by the tenant before the learned District Judge who accepted the same, vide his order, dated 7-10-1978 and remanded the case for a finding on the point whether notice under section 13-A of the Rent Restriction Ordinance had been served or not.

3. In remand, the Rent Controller after recording the evidence decided the question against the landlord and dismissed his ejectment application. This time the landlord went up in appeal which resulted in the passing of the impugned order/judgment, dated 2-12-1980. The learned District Judge in the course of dealing with issues Nos.1 and 2 which were considered ,together preferred to rely upon the evidence of Ghulam Nabi Postman to the effect that he had gone to serve the notice on the tenant but he refused to receive it. The learned District Judge as appellate authority was further of the view that there was nothing to be found in the cross-examination of the postman to disbelieve his testimony in regard to his endorsement on the registered envelope proving the factum of the refusal of the tenant. He distelieved the evidence of the tenant tendered in that behalf. It was also held that the notice in question for all intents and purposes will be treated as notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and in such a situation notice under section 13-A of the Rent Restriction Ordinance 1959 was not absolutely necessary because the landlord sought the ejectment on ground other than default in payment of rent as well. As. regards issue No.3, it was held that since the previous application was not dismissed on merits but on a technical ground, therefore, there arose no question of the application being barred by res judicata. It was finally held that since the default in payment of rent was admitted, the eviction application was being accepted implying thereby that it was a case of contumacious denial of tenancy. Reliance in this respect was placed on a decision of this Court reported as Nisar Ahmad v. Nazar Muhammad P L D 1974 Lah. 489.

4. After hearing the learned counsel for the parties, I feel that the learned District Judge as appellate authority has relied upon the evidence of the postman to prove that the notice sent to the petitioner had been refused to be accepted by him and has disbelieved the evidence of the petitioner tenant on the same point. The matter of believing or disbelieving the witnesses falls within the ambit of jurisdiction of the appellate authority. There is no material placed on the record to show any misreading or gross misappreciation of the evidence of the parties. So much so that the petitioner has not properly documented his petition and only the order of the District Judge, dated 2-12-1980 and the order of the Rent Controller in remand, dated 14-6-1980 have been filed. The material on the record is thus miserably deficient to enable the petitioner to substantiate his plea. The petitioner who wishes to succeed in the course of constitutional jurisdiction has thus failed to discharge his burden by properly documenting the petition to enable this Court to appreciate the submission in support of the writ petition. Even the copies of the exhibits which have been referred to by the Tribunals below and from which inferences have been drawn have not been appended. It was open to the petitioner to make a request for summoning of the record if he was serious for substantiating his objections. Nothing to this sort was done. The petitioner could also' have filed the certified copies of the evidence in order to enable this Court to adjudicate in the matter. I am in no position to appreciate whether the notice Exh.A/6 fulfilled the requirements of law and could; be construed as a comprehensive notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 read with section 13-A of the Rent Restriction Ordinance, 1959 or not. The question cannot be decided in the absence of essential material. In such a situation it is the petitioner who has failed to make out a case and he must suffer therefor. The impugned order, therefore, cannot be declared to be without lawful authority and of no legal effect merely on the basis of oral assertions or conjectures and surmises. The view taken by the learned District Judge in such as could have been taken in the given circumstances of the case.

The net result is that this writ petition fails and is hereby dismissed. However, in the circumstances of the case there will be no order as to costs.

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