1990 PLP 1830 (CLC)

(3) Whether the petition is bad because of misjoinder of parties? OPR. (4) Whether the property in possession of respondent No.3 is a separate property than the property allegedly rented out to the respondent No.1? OPR. (5) Whether the application is mala fide? OPR (6) Whether the application is without cause of action? OPR. (7) Whether the respondent No.4 is in possession of a part of the premises in dispute as sub‑tenant under respondent No.1? OPP.

8. Relief."

3. The landlord in order to prove his case examined Muhammad Siddique Palwari as AW1, Abdul Karim as AW2, Muhammad Ayub as AW3, Muhammad Ijaz as AW4, Jalilul Qadar as AW 5 while landlord himself appeared as AW

6. The respondents in the ejectment petition examined Nasim Ahmad as RWl, Abdul Ghani as RW 2 and Abdur Rauf as RW 3, Muhammad Sharif as RW4, Muhammad Younas as RW H, Muhammad Ramzan as RW 9, Ijaz Ahmad as RW 10 while respondents Nazakat Ali, Zaffar Zia and Malik Muhammad Aslam appeared as RW5, RW 6 and RN' 7 respectively. The learned Rent Controller after hearing the argmnents proceeded to decide issues No. 1, 2, 7 in favour of the landlord, issue No.4 was decided against respondent No.1 while issues No.3, 5 and 6 were decided against the respondents. The petitioners in these Constitutional petitions assailed the ejectment order through separate appeals before the appellate authority under section 15 of the Punjab Urban Rent Restriction Ordinance, 1959. The appeals were dismissed vide order dated 22‑11‑1989. Now they have filed the present petitions.

4. The petitions were admitted to regular hearing and notices were issued to the respondents. The respondent No.1 has contested the petitions. The learned counsel for the petitioners in support of the petitions have argued that the Courts below failed to appreciate that there was no cogent and clear evidence as to construction of the two disputed shops in the courtyard and as to their subletting to the petitioners in Writ Petitions No. 1234/90 and 1235/90. In this behalf reliance is placed on Abu Bakar v. Ch. Muhammad Abduilah (1986 M L D 227), Muhammad Ibrahim v. Haji Raza Hussain (1987 M L D 515) and Shaheen Oil Traders v. Imdad Ali Shah and 2 others (1980 C L C 1558). The learned counsel in this behalf has referred to the statements of the AWs. It is submitted that it is a case of non‑reading of material evidence. Reliance is placed on Daood Ahmad v. Sabira Moqaddas (P L D 1990 Lahore 158) to argue that in such a situation this Court can interfere in the Constitutional jurisdiction. The learned counsel for the petitioner Malik Muhammad Aslam further submitted that issue No.2 is redundant as his client had not claimed two shops allegedly constructed in the courtyard. It is added that according to the statements of AWs 3 and 6 courtyard is still in existence. In any case the addition and alteration was not proved to have impaired the value and utility of the premises. In this behalf reliance is placed on the case of Muhammad Mirza v. Muhammad Hussain Ghani (P L D 1983 Karachi 162). The learned counsel for the other two petitions submitted that neither the landlord has established the size nor identified the so‑called courtyard, therefore, the finding of the Courts below that the two shops in possession of his clients have been constructed in the courtyard are without basis.

5. On the other hand, learned counsel for respondent No.1 landlord has argued that factual controversy cannot be raised in Constitutional jurisdiction and the same has been foreclosed by concurrent findings of two Courts below. The learned counsel in this behalf has referred to the case of Muhammad Ali v. Mumtaz Hussain Lali, Addl. District Judge and another (P L D 1989 Lahore 187).

6. I have given my anxious considerations to the arguments of the learned counsel for the parties, gone through the record and precedent cases relied on by them. The first point urged in support of the writ petitions is that there is no clear and cogent evidence on record to prove subletting of the premises by the petitioner. It is submitted that the evidence is weak and shaky and the Courts below have failed to appreciate the evidence. There is a merit in the argument but this does not help the petitioners because the matter does not end here and simple transfer of possession also furnishes a valid ground for ejectment. Before proceeding any further it is worthwhile to refer to the provisions of section 13 (2) clause (ii) (a) of Punjab Urban Rent Restriction Ordinance, 1959. The same reads as under:‑ "(ii) The tenant has without the written consent of the landlord:‑ (a) transferred his right under the lease or sublet the entire building or rented land or any portion thereof; or" It is clear from the above provision that `subletting' as well as `transfer' of the entire premises or part thereof without the written consent of the landlord furnishes a ground for ejectment of the tenant. Therefore, the argument that landlord has failed to prove subletting of part of the premises will not automatically entail dismissal of the ejectment petition. In the present case the landlord has clearly alleged that Malik Muhammad Aslam tenant has parted with the portion of the premises which is now in possession of Nazakat Ali and Ijaz Ahmad, therefore, the question for determination is whether the shops of Nazakat Ali and Ijaz Ahmad have been put up in the courtyard, part of the premises let out to Malik Muhammad Aslam or not? The two Courts below have decided issue No.4 against the writ petitioners and there is nothing wrong with the concurrent findings of fact. The learned Rent Controller in this behalf has ‑held that the shops of Nazakat Ali and Ijaz Ahmad have been built in the part of the premises let out to Malik Muhammad Aslam. The relevant portion of the order reads as under: "Thus, by the word "whole", it is logically construed the detail of Nos. of rooms and the courtyard and nothing more nor less. The courtyard had an open space at that time and there were no shops. The respondent No.1 and Nazakat Ali AW 5 admitted that in the corner of the courtyard, there was a "watertap" which used to be utilized by children of Primary School which was being run on the upper portion of the same building. It was further admitted by Abdul Rauf PW 3 that the shop of Nazakat Ali respondent No.2 was constructed on the plea where the `ex‑watertap" used to be in the past. As such this fact naturally proved that shop of respondent No.2 was on an area which was already under the tenancy of the respondent No.l Similarly, Abdul Ghani RW 2 and Abdul Rauf PW 3 admitted that both the shops stood constructed in the courtyard." This is not all. AW 3 Muhammad Yousaf has clearly stated that there was only one main gate for entering the premises. The relevant portion of the statement reads as under:‑ This witness was not cross‑examined on this point, therefore, his statement will be deemed to have been accepted. I have asked the learned counsel for the parties to pinpoint location of main gate of the premises. They unanimously pointed out the place marked `CW in red ink on Ex. P4, Ex. P2 Aks Shajra and Ex. P5 Building plan also lend support to the version of landlord. This evidence clearly established the plea of respondent No.1 landlord beyond any shadow of doubt that the shops in possession of Nazakat Ali and Ijaz Ahmad have been constructed in the C courtyard, part of the premises let out to Malik Muhammad Aslam, therefore, transfer of the part of the premises even gratis by said tenant to others furnishes a valid ground for ejectment. Subletting alone is not actionable. The legislature definitely had in mind that there may be cases where tenant parts with rented premises or part thereof gratis. In that case if the interpretation of the petitioners is accepted then the landlord has no remedy. This is patently against the language employed by the leglislature. Even otherwise it is cardinal principle of interpretation of statutes that intepretation which advances remedy is ordinarily to be adopted. The learned counsel for the writ petitioners have failed to refer to' any misreading or non‑reading on the point of transfer of the part of the courtyard to Nazakat and ]jaz.

7. Now coming to issue No.2 the argument of the learned counsel for the writ petitioners that the landlord has failed t0 prove any damage or impairment of the value and utility of the premises. Before proceeding with the argument it is relevant to refer to the section 13 (2) clause (iii) of Urban Rent Restriction Ordinance. The same reads as under:‑ "the tenant has committed such acts as are likely to impair materially the value or utility of the building or rented land: or It is clear from the above provision of law that the acts complained of must be likely to impair materially the value or utility of the premises. The learned counsel for the respondent argued that the shops were constructed without his permission, therefore, furnishes valid ground for ejectment. I am afraid, that the learned Rent Controller was ill‑advised to frame issue No.2. The issue as it stands does not reflect any of the grounds specified in section 13 of the Ordinance for ejectment of a tenat while on the other hand if this issue is deemed to reflect above‑quoted provision of law, then the landlord has failed to prove its main ingredient Le act committed is likely to impair materially the value and utility of the premises. The learned counsel for the writ petitioners rightly submitted that there was no effort on the part of the landlord to prove any damage or impairment and rightly referred to the case of Muhammad Mirza v. Muhammad Hussain Ghani (P L D 1983 Karachi 162). The result is that there is no merit in these petitions. Therefore, the same are dismissed with costs. However, the petitioners are allowed time upto 30th June, 1990 to vacate the premises. H.B.T./M‑21.77/L Petitions dismissed