1986 PLP 1685 (SCMR)

SHAFIUR RAHMAN, J.‑‑The petitioners, in occupation of a shop, feel aggrieved by the judgment of the Lahore High Court, dated 6‑12‑1983 whereby their Constitutional petition challenging an ejectment order was dismissed. The respondent No.1 claiming to be the landlord of the premises in occupation of the petitioners sought their eviction on the ground of personal need and their having damaged the property to an extent that it required reconstruction for which the sanction had been obtained. The application vas contested on the ground that no relationship of landlord and tenant existed. Two issues were framed which appeared to be preliminary, one with regard to the maintainability of the petition and the other with regard to the existence of the relationship of landlord and tenant. The Rent Controller held that the application of landlord and tenant was not proved. The ejectment application was dismissed. On appeal, the learned District Judge held that the relationship of landlord and tenant was established and then proceeded to record the following finding:‑ "The appellant claimed the ejectment of the respondents, on the three grounds. Out of it, one is his need for reconstruction of the building. In this behalf, he produced the sanctioned site plan Exh.A.W.4/1. It has remained un-rebutted. As, the respondents denied the very title of the appellant to the suit property and also denied the existence of their relationship of landlord and tenant, the tenancy automatically terminated and the respondents liable to ejectment". Against the order of ejectment, a constitutional petition was filed and both the grounds were raised, namely, that the relationship of landlord and tenant did not exist and the statutory ground necessary for getting them evicted was not at all either in issue or made out. Relying on a decision of this Court in Mst. Sughran and others v. Ehsanul Haq Bhalli 1982 S C M R 1164 the constitutional petition was dismissed. The learned counsel for the petitioner has drawn our attention to the other decisions on the subject, viz. Makhan Bano v. Haji Abdul Ghani P L D 1984 S C 17 and Province of Punjab v. Mufti Abdul Ghani P L D 1985 S C 1 to substantiate his contention that without the statutory grounds for eviction having been established either direct or by necessary implication mere forfeiture on such denial cannot automatically result in an eviction order. He has also drawn our attention to the material on which the finding with regard to the existence of the relationship of landlord and tenant between the parties was reversed by the District Judge contending that such a finding was not tenable. So far as the finding with regard to the existence of the relationship of landlord and tenant between the parties is concerned. as it is one of fact and all the material factors have been taken into account including the plea of the petitioners themselves, we consider it not open to challenge in Constitution jurisdiction. Hence leave to appeal to agitate that question is refused. As regards the other grounds there appears to be substance in the contention that after the preliminary issues had been resolved, as there was no question of default involved in the case, it was necessary that the statutory grounds should have been made out. The one of reconstruction which has been taken note of by the appellate Authority was not really then in issue as the parties were contesting it till then on the ground of maintainability of the petition, and the existence of such a relationship. Leave to appeal is, therefore, granted. Security in the sum of Rs.2,

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