1982 PLP 1526 (CLC)

Allah Wasaya Malik for Respondent. Date of hearing : 31st March, 1980. This second appeal under section 15 (4) of the West Pakistan Urban Rent Restriction Ordinance, 1959 is directed against the order dated 29th June, 1977 passed by the learned Additional District Judge upholding the decision of the learned Rent Controller dated 6th October, 1976, whereby he bad accepted the ejectment petition filed by the respondent and passed the order of eviction against Muhammad Ibrahim.

2. Briefly the facts of the case are that the respondent had sought the ejectment of Muhammad Ibrahim (deceased), predecessor‑in‑interest of the appellants, on the grounds of default in the payment of rent, personal need and damage to the property. Muhammad Ibrahim deceased resisted the application and inter alia pleaded that the house in question belonged to his forefathers and, therefore, was occupying the same as its owner. The pleadings of the parties gave rise to the following issues : ‑ (1) Whether the relationship of. landlord and tenant exists between the parties ? O P P. (2) Whether this Court has the jurisdiction to try the case ? O P P. (3) Relief. After recording the evidence and hearing the arguments, the learned Rent Controller decided both the issues in favour of the respondent and consequently passed the eviction order. This order was unsuccessfully challenged by way of appeal before the learned Additional District Judge who dismissed the appeal vide his order dated 29th June, 1977.

3. This appeal was admitted to a regular bearing to consider the question as to whether after the decision of issue No. I in the affirmative, the tenant was entitled to further hearing on the question of default in the payment of rent. 1n view of the judicial pronouncements of the Superior Courts of the country Abdul Khalig Qureshi v. Saeed Hassan Shah and 5 others (1979 C L C 118) and Muhammad Shah Alain v. Muhammad Abdul Ghafoor (1979 S C M R 443) the learned counsel for appellants does not press this point but argues that the finding recorded by the two Courts below under issue No. 1 suffers from misreading and non‑reading of the evidence. It was maintained by the learned counsel for the appellant that the house in question had been given to the wife of Muhammad Ibrahim deceased (appellant No. 4) by her parents.

4. Learned counsel for the respondent on the other hand has submitted that the contentions raised by the learned counsel for the appellants are without any substance. He controverted the plea that the findings recorded by the two Courts below suffer from misreading or non‑reading of any material evidence. The learned counsel for the respondent submits that in the written statement filed by Muhammad Ibrahim deceased the plea raised was to the effect that the house belonged to his forefathers whereas in this Court altogether a different plea has been raised.

5. Learned counsel for the appellants took me through the statements of Muhammad Ibrahim P. W. 1 and Ali Nawaz P. W. 3 and further invited my attention to the site p[an Exh. A.

4. From this evidence the learned counsel for the appellant unsuccessfully attempted to establish the alleged ownership of the disputed house vesting in appellant No. 4. (Learned counsel for the appellant, has not been able to persuade me to believe that the Courts below have either misread or omitted to read any material evidence available on the file. It is an admitted position that the house in question, which is numbered as J‑50, is located within municipal limits and if there had been any substance in the plea raised by the original tenant, then efforts would have been made to bring on file the record of the local body. I may not be understood to mean that the record of the local body was sufficient piece of evidence to conclusively establish the alleged ownership, but at least it could prima facie create doubt in the claim of the respondent. Be that as it may, the plea originally raised or now being raised is belied by the fact that Muhammad Ibrahim deceased had remitted the rent through money orders. If this property had either belonged to him or to his wife, there was no occasion for him to remit the rent of the house in question by money order. Confronted with this, the learned counsel for the appellants submitted that the rent so remitted pertained to house bearing property No. J‑50/B. This again is a new plea, which cannot be permitted to be raised for the first time in the second appeal.

6. For the foregoing reasons, this appeal has no merits and is dis missed with costs. However, the appellants are allowed two months time to vacate the disputed premises. M.Y.H. Appeal dismissed.