2000 PLP 1248 (SCMR)

CH. MUHAMMAD ARIF, J.

This petition is directed against the judgment dated 24-6-1999 of the Lahore High Court, Bahawalpur Bench, Bahawalpur passed in Writ Petition No.2320 of 1993/BWP.

2. There is no need for making a detailed reference to the facts leading to the instant petition under Article 185(3) of the Constitution of the Islamic Republic of Pakistan against the dismissal of present petitioner's writ petition against the ejectment orders passed by the learned Rent Controller and the appellate authorities. Suffice it to say that the question with regard to default in making the payment of rent as agreed was decided against the petitioner and the ejectment ordered by holding that the withdrawal of the suit by the petitioner on 18-3-1992 revived the status of the petitioner as tenant in the disputed premises. The observations made by the learned Judge in Chambers in paras. l 1. to 15 read thus:

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11. On careful consideration of the pleadings, documents and material annexed with this petition, the facts which appear from the record are that admittedly the petitioner acquired the premises on rental basis .from Muhammad Ibrahim Shah, predecessor of respondents Nos.2 to 4 on a monthly rent of Rs.35 which was enhanced to Rs.45. It is not denied that initial induction of the petitioner in the premises was that as a tenant and that the tenancy was in favour of the predecessor of respondents Nos. 2 to 4 and that the petitioner has been making payment of rent. The defence was that one Abdul Rehman compelled -the petitioner to purchase the property through a registered sale-deed and, therefore, the respondents Nos.2 to 4 could not seek ejectment unless the question of title was determined. It was alleged that the petitioner had filed a suit for adjudication of title.

12. In the earlier round of ejectment proceedings the learned Additional District Judge, while deciding the appeal observed that it would be open to the respondents to seek eviction of the petitioner in the case, the question of title alleged to have been raised by him, through registered sale-deed is decided against him. It was noted that the petitioner had filed a civil suit of title. It was also noted that the petitioner was inducted in the premises as a tenant of Muhammad Ibrahim Shah, predecessor of respondents Nos. 2 to

4. In view of title claimed by the petitioner on the basis of suit, thr ejecment was not ordered to get the matter finally adjudicated upon. Same was the position in the writ petition which was decided with the similar remarks.

13. After the decision of the writ petition, the petitioner opted not to follow up the suit and virtually abandoned his claim by withdrawing the suit with the remarks that there was no need to pursue the suit. Resultantly the suit was dismissed as having been abandoned and relinquished on 18-3-1992.

14. In view of the dismissal of the suit, no question of title remained pending for adjudication, therefore, the respondents Nos.2 to 4 filed the ejectment petition on the ground of default. The petitioner again denied the relationship of landlord and tenant which issue has been decided 4gainst the petitioner in appeal.

15. The arguments that there. were no adjudication of, title in favour of respondents Nos. 2 to 4 and thus the ejectment could not succeed, is untenable. The reason being that the petitioner was inducted as tenant which was proved on record. Initial induction of the petitioner as a tenant by the predecessor of respondents Nos.2 to 4 is also not disputed. The petitioner wanted to have a shelter of sale deed front Abdul Rehman, which according to him was executed under coercion. The petitioner did not produce any title in favour of Abdul Rehman and obviously the sale-deed allegedly executed by Abdul Rehman in the name of the petitioner was ineffective in law as the petitioner himself claimed that -the same was created under coercion and police pressure. Be that as it may, the petitioner was no longer interested to rely on that document or to get declaration of title. In this backdrop the petitioner abandoned his claim in the suit, withdrew the same, which was dismissed as having not been pressed arid given up. After having abandoned the claim, 'the petitioner cannot again plead alleged sale-deed or title to the property. Since relationship was otherwise proved, therefore, due to non-payment of rent, ejectment was the only consequence. The earlier order in the ejectment proceedings was not res judicata as the rights f respondents Nos.2 to 4 to file ejectment petition, on the decision of the civil suit, was not fore-closed. Rather the respondents Nos.2 to 4 were allowed to file ejectment petition on the decision of question of title. Since the suit. of the petitioner for seeking title was: dismissed as withdrawn, and no new suit could be filed under Order 23, Rule 1 of C.P.C. and no issue of title was pending in the Civil Court, the learned Rent Controller was justified in directing eviction of the petitioner as the plea of default stood proved. The impugned orders do not suffer from error of law or misreading of record."

3. The learned counsel for the petitioner has reiterated the earlier stand of his client that as the dispute with regard to title of the property has not been decided by the Civil Courts, the possession of the petitioner as tenant cannot be disturbed. We are afraid, the plea loses sight of the fact that the petitioner has only himself to blame for not pursuing his earlier suit regarding title and its unconditional withdrawal heightened the effect of ejectment proceedings against his interests.

4. The instant petition lacks merit and is liable to be dismissed. We order accordingly.

5. As the premises in dispute are commercial in nature the petitioner is allowed two months' time to vacate the same. Q.M.H./M.A.K/M-50/S Petition dismissed.