2007 PLP 2247 (YLR)

MUHAMMAD MUJEEBULLAH SIDDQIUI, J.

This petition is directed against the concurrent findings of facts by the learned Rent Controller and the first appellate authority against the petitioner/tenant on the issues of default in payment of rent and personal bona fide need of the landlord/respondent No.l. The nature of Constitutional Petition, the Revision Application and Second Appeal are entirely different from the first appeal. In these proceedings the Court is not supposed to reappraise the facts by the learned Courts below, until and unless it is shown that the findings suffer from gross misappreciation of admitted facts or are against the evidence on record. Nothing of the sort has been pointed out and, therefore, I am not persuaded to reappraise the evidence in , the proceedings under Article 199 of the Constitution of Islamic Republic of Pakistan. At this stage, it would be appropriate to observe ,that the appellate/revisional Court and the Court exercising extraordinary original jurisdiction under the Constitution are loosing the distinction in the nature of proceedings in Revision, Constitutional Petition and Second Appeal from the First Appeal. This is one of the reasons_ for backlog of the cases in the Courts in spite of abolition of provision for Second Appeal in Rent cases and some other proceedings. As no excess of jurisdiction lack of jurisdiction; illegality or material irregularity, causing miscarriage 'of justice has been brought to my notice, therefore, it is held that the orders passed by the learned two Courts below are not open to any exception, except that there is a plea by the petitioner/tenant that he had acquired the property on pugree of Rs.1,80,

000. A specific plea was taken in this behalf in para.3 of the written statement. The landlord/respondent No.1 did not deny this assertion in his affidavit-in-evidence and in cross-examination. He stated that, "it is not in my knowledge that opponent had taken the premises in question after payment of pugree amount of Rs.1,80,000 to the Thaikadar in 1993. It is not in my knowledge that Noroze deals all the affairs of building with the Thaikadar." The petitioner/opponent tenant stated in para.3 of his affidavit-in-evidence that he obtained the premises from the building contractor on Goodwill and pugree basis after payment of huge pugree amount i.e. Rs.1,80,000 in 1993 and all the flats are on goodwill/pugree basis in building." In cross-examination, he was asked certain questions about the receipts, which he produced in support of the contention, but there was no specific suggestion to the effect that the assertion was incorrect. The Honourable Supreme Court has held in several cases that if a tenant has acquired a premises on payment of pugree then at the time of vacating the same he is entitled to receive back the pugree amount. The learned two Courts below have failed to advert to this aspect of the case which has caused miscarriage of justice of this extent. Mr. Abdullah Chandio, learned counsel for the respondent No.1 contended that although the petitioner had alleged the acquiring the premises on payment of pugree but he was not able to establish this fact in the evidence. He is however not able to deny that in spite of specific assertion in the written statement in this behalf, the respondent No;1/landlord did not deny this fact in his affidavit-in-evidence and in cross-examination also the reply was evasive. The reply of the respondent No.1 has been reproduced above and need not be repeated. The denial of a fact should be specific. The evasive denial is not to be treated as denial in accordance with the general principles of pleadings contained in C.P.C. Although C.P.C. is not applicable to rent proceedings, but general principles of C.P.C. are applicable to these proceedings also. Likewise the learned counsel for the respondent No.1 was required to suggest specifically to the petitioner in his cross-examination that the assertion about payment of pugree was not correct. Mr. Abdullah Chandio has frankly conceded that no specific suggestion was made in this behalf to petitioner in cross-examination. In the above circumstances, I am of the view that the learned two Courts below while allowing the ejectment application ought to have directed for payment of pugree amount by the landlord to the tenant. In the above circumstances, the orders of learned two Courts below on the point of ejectment are maintained with further direction that the respondent No.l shall pay back the pugree amount to the petitioner. The respondent No.1 is directed to deposit the amount of Rs.1,80,000 with the Nazir of this Court within three months which shall be disbursed to the petitioner on vacating the premises in question. The petition is allowed. The period of six months for vacating the premises is allowed subject to payment of monthly rent to the respondent No.1 through money order before 10th of each succeeding Calendar month. If default is made in this behalf, the petitioner shall be liable to vacate the premises forthwith. After expiry of period of six months, the petitioner shall vacate the premises voluntary and in case he fails to vacate the premises, the Executing Court shall issue writ of possession without any notice to the petitioner. H.B.T./M-80/K??????????????????????????????????????????????????????????????????????????????????? Order accordingly.