1984 PLP 1231 (SCMR)

Date of hearing: 14th April, 1984. SHAFIUR RAHMAN, J.‑‑ The petitioner is a tenant under orders of ejectment. He seeks leave to appeal against the judgment of the Lahore High Court, dated 11th March, 1984 whereby a constitutional petition filed by him challenging the ejectment order passed by the Rent Controller and affirmed in appeal by the District Judge was dis missed in limine. House No.I1641, Teli Mohallah, Rawalpindi, was transferred to one Abdul Ghafoor under Displaced Persons (Compensation & Rehabilita tion) Act, 1958. He died and among others Abdul Shakoor inherited. It was then sold to the respondent by a registered deed, dated 22nd August, 1978. The respondent served a notice under section 13‑A of the West Pakistan Urban Rent Restriction Ordinance, 1959 on the peti tioner who as it appears declined to receive it. He thereupon on the 7th of January, 1979 filed an ejectment application against the petitioner on the ground of default in the payment of rent and on account of personal need. The petitioner at first denied the title and interest of the respondent and disputed his claim to be the landlord of the property. A preliminary issue was framed and it was decided on the 23rd of June, 1980 whereby such a relationship was held established. Thereafter, issues on merits were framed and were decided in favour of the respon dent whereupon the Rent Controller passed an ejectment order on 4th May, 1981. The appellate Court maintained the order of ejectment only on one ground, namely, of default and not on personal need. The petitioner invoked the constitutional jurisdiction of the High Court to challenge his eviction on numerous grounds including that it was not a case of default and the finding of default had been recorded on no evidence. The High Court found that the finding recorded was sustainable and the constitutional jurisdiction was of no avail to the petitioner in the matter. The learned counsel for the petitioner contended that the peti tioner had been depositing rent in advance. He deposited rent for the period 1‑7‑1978 to 31‑12‑1978 on 30‑7‑1978. For the period 1‑1‑1979 to 31‑12‑1979 he deposited the rent on 3‑1‑1979 and for the period 1‑1‑1980 to 30‑6‑1980 he deposited the rent on 22‑5‑1980 and he made these deposits in the name of Abdul Shakoor the previous landlord on the ground that no notice under section 13‑A of the transfer of the house from Abdul Shakoor to the petitioner was ever received by him. These deposits according to the learned counsel, were also taken note of by the Rent Controller who passed an order under section 13(6) of the Rent Restriction Ordinance on 29‑7‑1980. Hence the petitioner could not be considered to be in default. In any case he had paid the rent and he should have been exonerated even if there was any technical default. As regards, the service of the notice, a clear finding of fact has been recorded by the appellate authority and is as follows:‑ "The Notice Exh . A‑8 and the registered envelope in which the notice was sent to the appellant and the A . D .receipt show that the notice was correctly and properly addressed to the appellant. The registered envelope further show that the appellant did not receive it as being not claimed The registered envelope, and acknowledgement receipt show that it was properly addressed to the appellant. In such circumstances it wilt be presumed that the service of notice was effected upon the appellant." As regards the nature of defence taken up by the petitioner and the deposits made by him, the Rent Controller recorded the following findings:‑‑ "Pleadings show that the respondent is persistently contending that the petitioner is not the owner of the suit property and sale‑deed is only Benami transaction. In his order dated 23rd June 1980, my learned predecessor has resolved this issue once for all by holding that the Rent Controller is not competent to go into the question of title. The said order has become absolute and final because, the respondent has not challenged said order. The order under section 13(6) Ordinance VI, 1959 was passed but the respondent did not comply with the said order strictly and vide order dated 26th January 1981 his defence was struck off and petition was granted. The respondent, perhaps could not reconcile the changed situation till last moment. That is why in his statement he stressed again and again that he was not ready to accept the petitioner his landlord. Though the respon dent afterwards started depositing the rent in the name of the petitioner but default already committed for the period 22‑8‑1978 to 30‑7‑1980 could not clear the liability of the respondent, thus, the default continued." In view of these findings of fact recorded by the Rent Controller and the first appellate authority, it was indeed not open to the High Court to interfere in the constitutional jurisdiction and we do nut finds any merit in this petition. On an undertaking given by the petitioner that he will voluntarily surrender the property without waiting for the execution of the eviction order and pay rent for the property, we have allowed him a further period of three months from today for making necessary arrangements for handing over the vacant possession of it to the petitioner. Except for this concession, the petition for leave to appeal is dismissed. S. Q. Petition dismissed.