1981 PLP 855 (SCMR)

ABDUL KADIR SHUKH, J.--This is a petition for special leave to appeal from the judgment of Peshawar High Court dated 17th May, 1981 upholding the order of the Additional District Judge, Peshawar passed on appeal at the instance of Mst. Nasim Akhtar, respondent herein, and in result directing petitioner's ejectment from the demised premises. On 4th May, 1977, Mst. Nasim Akhtar applied for petitioner's ejectment on the ground of his default in payment of rents at the rate of Rs. 150 per month from March, 1975 onwards, and also that the shop in question was bona fide required for the use of her husband, Maqsood Elahee, for carrying on his business. In defence, the petitioner while admitting that he bad never paid any rent to Mst. Nasim Akhtar pleaded that no relationship of landlord and tenant existed between them. On the pleadings of the parties, the Rent Controller framed two issues as under: "(1) Whether the relationship of landlord and tenant exists between the parties? (2) Relief." The Rent Controller decided the first issue against Met. Nasitn Akhtar and accordingly dismissed the ejectment application by the order dated 11th January, 1977, but on appeal, the Additional District Judge took the contrary view, and as a equal to the decision on the first issue, be held that, it was a clear case of non-payment of rent by the tenant and he therefore ordered petitioner's ejectment. The High Court confirmed this view, and dismissed the second appeal filed - by the petitioner, and he now seeks special leave to appeal. M. Fazal Elahi Khan, learned counsel for the petitioner submits that the petitioner had alleged that the shop in question was in his possession on behalf of the husband of Mst. Nasim Akhtar, namely Maqsood Elahi, and as such the denial of relationship of landlord and tenant was not unqualified which could attract the penalty of ejectment as a result of the decision on the first issue. Learned counsel further submits that the petitioner had been depositing rent in Court under an order of the Rent Controller, and therefore, on this aspect of the case, it was necessary to decide the crucial question whether the petitioner was a defaulter in payment of rent so as to be ejected from the premises. There is no merit in the submissions made by the learned counsel for the reason that the High Court has pointed out that the petitioner had himself admitted that he had never paid any rent to Mst. Nasim Akhtar and in paragraph 2 of the written statement he had emphatically denied the relationship of the landlord and tenant between the two, and therefore was a futile exercise to remand the case to the Rent Controller for giving finding on the question whether the tenant had paid rent to his landlady. So far as the plea that petitioner had deposited rent in Court is concerned, reference to the copy of the order of the Rent Controller dated 11th January 1977 shows that the petitioner was allowed by the Rent Controller to deposit rent for the period from 1st June, 1976 to January, 1977 at the rate of Rs. 150, and no documentary proof was produced o is even now available with the petitioner to prove that he had paid rent regularly for the earlier period from March 1975 to June 1976. On these facts, no fault can be found with the High Court for the view that the record of the case to the Rent Controller would have been an exercise futility. The petition is dismissed limine. At the request of the learned counsel, the petitioner is granted four months' time to hand over possession of the demised premises, provided he deposits rent in Court in terms of the orders already passed in the case in this behalf. Petition dismissed.