1985 PLP 518 (SCMR)

‑‑‑Art.185(3)‑‑West Pakistan Urban Rent Restriction Ordinance (VI of 1959), Ss.13 & 13‑A‑‑Leave to appeal granted to consider questions o substantial nature viz,:‑ (i) Whether institution of ejectment application could be considered as a notice by itself under S.13‑A of Ordinance VI of 1959, disturbing concurrent findings of fact by two Courts below; (ii) Whether High Court could refer to photostat copies of notice and postal envelopes which were just placed on file to show issuance to or service of notice; (iii) Whether High Court order based on above‑mentioned inadmissible documents was vitiated; (iv) Whether Rent Controller was not competent authority to enquire into validity of title of landlady; and (v) Whether finding regarding non‑existence of relationship of landlord tenant could be interfered with in second appeal when there was no misreading or omission of evidence. Niaz M. Siddiqui, Advocate Supreme Court and Sh.Abdul Karim Advocate‑on‑Record for Petitioners. Nemo for Respondent. Date of hearing: 12th November, 1979. KARAM ELAHEE CHAUHAN, J.‑‑The dispute in this case is about a residential premises situated in Hassan Park Balal Ganj near T.B. Hospital, Lahore. Mst. Aziz Begum (hereinafter called the landlady) filed an application for ejectment of the petitioners from the aforesaid property on the ground of default in payment of rent, personal need, and damage to the property. The application was dismissed by the learned Rent Controller on 12‑1‑1977. The landlady filed an appeal which also met the same fate and was dismissed by the learned Additional District Judge on 13‑4‑1977. The landlady then filed a second appeal being No.346/77 which brought fruit inasmuch it was accepted by a learned Single Judge of the Lahore High Court on 28‑10‑1979 who ordered eviction of the tenants/ petitioners on the ground of default in payment of rent. The petitioners have come up in a petition for leave to appeal against the same to this Court.

2. Learned counsel for the petitioners has argued that in this case the landlady (who claimed to be a transferee from Muhammad Akmal P.W.) did not issue any notice to them under section 13‑A of the West Pakistan Urban Rent Restriction Ordinance VI of 1959, intimating the factum of any alleged transfer of the property in dispute in her name. On this subject there were concurrent findings of the two Courts below which were disturbed by the High Court but nevertheless that Court observed that the institution of the ejectment application could be considered as a notice by itself. In this respect the High Court also referred to certain photo stat copies of notice and postal envelopes, which had just been placed on the file for the purpose of showing issuance to, or service of the notice on the petitioners. These documents it was argued were not admissible in evidence and the order of the High Court, which is based on the aforesaid, is vitiated for that reason. Another point raised is that the High Court took the view that the learned Rent Controller was not a competent authority to inquire into the validity of title of the landlady. It was submitted that it was solely on the bases of the aforesaid title that the petitioners were being alleged to have become tenants at the respondents. In the circumstances an inquiry into the factum and validity of the title was very much relevant and the High Court erred in ignoring this aspect of the matter. It is also pleaded that a finding of fact regarding non‑existence of relationship of landlord/tenant could not have been interfered with in second appeal, as there was no misreading or omission of evidence.

3. In our opinion the points raised are of substantial nature, which require consideration. Leave to appeal is granted. The stay granted earlier is continued subject to the deposit of rent by the petitioners at the rate of Rs.60 per month from 15‑9‑1971 upto date within three months and future rent at the same rate within the terms of section 13 of the Ordinance. Security Rs.5,

000. M. I. Leave granted.