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Civil Petition No. 751 of 1983, decided on 28th July, 1986.
(Against the Judgment and order of the Lahore High Court, Lahore, dated 20‑4‑1983 in W.P. No. 1615 of 1983).
‑‑‑Art's. 185(3) & 199‑‑Leave to appeal‑‑Grant of‑‑Ground taken before Supreme Court not taken while arguing Constitutional petition in High Court‑‑Factual plea raised by petitioners having received attention of appellate authority and not having been urged in Constitutional petition in High Court, held, could not be made ground for maintaining petition for leave to appeal where view taken by appellate authority suffered from no legal or jurisdictional infirmity‑‑Leave to appeal refused.
M. Ilyas Khan, Advocate Supreme Court instructed by Ch. M. Z. Khalil, Advocate‑on‑Record for Petitioners.
Nemo for Respondents.
Date of hearing: 28th July, 1986.
The petitioners, the tenants of a shop in Sargodha, seek leave to appeal against the judgment of the Lahore High Court, dated 20‑4‑1983 whereby by an elaborate order their Constitutional petition challenging the order of ejectment passed by the first appellate authority on 19th of January, 1983 was dismissed.
The respondents landlords sought the eviction of the petitioners from a shop let out to them, on numerous grounds like default, damage, subletting and bona fide personal need. A number of issues were framed and after recording evidence the application for ejectment was rejected as none of the grounds were held established. On appeal, the learned District Judge held subletting and bona fide personal need established and held as follows:‑‑
"I am wholly convinced that the requirement of the landlords in respect of the disputed premises is absolutely genuine and bona fide; and I would, therefore, reversed the finding recorded by the Rent Controller regarding issue No.7."
The appellate authority had also held the issue of subletting established.
The Constitutional petition filed by the petitioner was dismissed by the High Court concluding as follows:‑
"This being so, even if it is assumed that the issues of subletting and damage were incorrectly decided the order of the learned District Judge on the question of bona fide personal requirement of the landlords is based on proper appreciation of evidence, warranting no interference in the exercise of writ jurisdiction."
Mr. M. Ilyas Khan, Advocate the learned counsel for the petitioners has taken us through the statement of the witnesses and the documents placed on record to make out that the landlords have shifted their residence from Sargodha to Hafizabad in order to attend to their extensive agricultural land there, and after their having done so there was no need left for them to occupy the shop in Sargodha, the one in possession of the petitioners.
This specific ground does not appear to have been taken while arguing the Constitutional petition in the High Court as it finds no place in that judgment. The first appellate Authority had attended to it and recorded the following finding of fact:‑
"It is conceded by the appellants that they had stayed for a few months at Hafizabad and they had stayed for a few months at Hafizabad and they had occasionally been visiting that place in order to look after their lands which privilege of theirs cannot deprive them of their right to claim their personally occupied by the appellants and their mother and the three shops that they own at Sargodha are in occupation of the tenants. Thus, it cannot be said that they are not personally in possession of the house or are not living at Sargodha."
As the factual plea now raised by the petitioners has received the attention of the appellate authority and was not urged in the Constitutional petition in the High Court, it cannot be made a ground for maintaining this petition as the view taken by the appellate authority suffers from no legal or jurisdictional infirmity. There is no merit in the petition and the leave to appeal is refused.
M.I. Petition dismissed.
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