1991 PLP 1576 (MLD)

Ss. 2(c)(i), 13(2)(i) & 15

Constitution of Pakistan (1973), Art. 199-- Constitutional jurisdiction, exercise of

Tenant denied relationship of landlord and tenant between parties contending that landlord had executed an agreement to sell in respect of house in dispute in his favour

Tenant admittedly had failed to prove the execution of alleged agreement to sell beyond any doubt

Appellate Authority on basis of evidence on record found that relationship of landlord and tenant existed between parties and as non-payment of rent by tenant was an admitted fact, ordered ejectment of tenant from house in dispute on ground of default

Order of Appellate Authority not suffering from any illegality or jurisdictional defect could not be interfered with in Constitutional jurisdiction of High Court. Muhammad Ghani for Petitioner. Najam-ul-Hassan Kazmi for Respondent No.1. Date of hearing: 13th March, 1991. Muhammad Hanif Khan respondent filed an application for the ejectment of Muhammad Hafeez petitioner from a house situate in Sham Nagar. Chauburji, Lahore on the ground of default. According to him eversinee the purchase of the said house by him on 26-10-1977 the petitioner failed to pay rent to him. The petitioner contested the petition and denied the relationship of landlord and tenant between the parties. According to him the respondent had executed an agreement to sell the house in dispute in his favour on 12-10 1978 for a consideration of Rs.45,000 and had received Rs.25,000 as earnest money from him and handed over the possession of the house to him. On the pleadings of the parties, an issue was framed about the existence of the relationship of landlord and tenant between the parties. After recording evidence the learned Rent Controller by order dated 27-5-1984 held that the relationship of landlord and tenant between the parties ceased on the execution of agreement to sell as contemplated by section 53-A of the Transfer of Property Act and in consequence dismissed the ejectment petition. Feeling aggrieved Muhammad Hanif Khan respondent filed an appeal which was accepted by Mr. Fazal Karim, District Judge, Lahore (now Judge of Lahore High Court) vide his judgment dated 6-6-1985 and reversed the finding of the learned Rent Controller and found that the relationship of the landlord and tenant existed between the parties and ordered ejectment of the petitioner. Hence this writ petition.

2. It is contended that there has been a misreading of the evidence by the learned District Judge and that he has misapplied the law and the impugned order has resulted in miscarriage of justice.

3. The petitioner's case mainly rested on the agreement to sell dated 12-10-1978, Exh.R-1 by virtue of which he claimed to have purchased it from Muhammad Hanif Khan respondent on payment of Rs.25,000 as earnest money. From the evidence it stands established that the petitioner was already in possession of the house as a tenant when the alleged agreement to sell dated 12-10-1978 Exh.R-1 was executed between him and Muhammad Hanif Khan respondent. His mainstay was on the said agreement. It is an admitted fact that the suit filed by him for specific performance of contract against the respondent was dismissed on appeal by the learned District Judge, Lahore on 6-6-1985. Civil Revision riled by him against the said judgment has also been dismissed by this Court today. The learned District Judge by a very detailed and well-reasoned judgment held that; the petitioner had failed to prove the execution of agreement to sell Exh.R.l beyond any doubt. Muhammad Hafeez petitioner who was to prove the execution of agreement to sell Exh.R.l did not personally appear in the witness-box. Faizi Pirzada, the scribe of agreement Exh.R.l while appearing in the witness-box stated that he did not know the respondent and as such was unable to identify him. Muhammad Siddique and Mian Siddique Ali gave contradictory statements on the continuation or cessation of tenancy between the parties on the execution of the agreement Exh.R.l. It is a settled proposition of law that party personally knowing circumstances of the case is duty bound to appear as its own witness and submit to cross-examination failing which truth of that party may be discredited. The non-payment of rent by the petitioner to the respondent is an admitted fact.

4. For the foregoing reasons the learned District Judge had rightly held that the relationship of landlord and tenant existed between the parties. As non-payment of rent by the petitioner was an admitted fact, he rightly ordered his ejectment from the house in dispute. Finding no illegality, muchless, jurisdictional defect in the order of the learned District Judge, I dismiss the writ petition with costs. The petitioner shall deliver vacant possession of the house in question to the respondent within a period of two months. H.B.T./M-2863/L Petition dismissed.