2014 PLP 791 (YLR)

ABID AZIZ SHEIKH, J.

This writ petition has been filed against the judgment dated 8-2-2011 passed by learned Rent Controller, Sialkot, whereby the ejectment petition filed by respondent No.3 was accepted and judgment dated 14-1-2012 passed by learned Addl. District Judge, Sialkot, whereby the appeal filed by the petitioner was dismissed.

2. Succinctly the facts of the case are that respondent No.3 Mst. Surraya Begum has filed an ejectment petition against the petitioner in respect of Shop No.22/529 (detail of which is given in Para No.1 of the ejectment petition) on the ground of default in payment of rent as well as for personal need. After framing of issues and recording of evidence, the ejectment petition was allowed vide impugned judgment dated 8-2-2011 by the learned trial Court and the appeal of the petitioner was dismissed by the learned Appellate Court vide impugned judgment dated 14-1-2012.

3. Learned counsel for the petitioner argued that the trial Court as well as Appellate Court have wrongly decided the issues, especially Nos.1 and

2. Learned counsel submits that the petitioner was not a defaulter as he was initially paying the rent regularly to the respondent No.3 and subsequently depositing the same with the trial Court and therefore, the issue No.1 has been wrongly decided. Further submits that the respondent No.3/ejectment petitioner was owner of the property only to the extent of 9 x 10 feet and remaining area was encroached upon by the respondent No.3 from Pakistan Evacuee Trust Property Board and brothers of the petitioner have purchased the said property and filed a suit for removal of encroachment. Submits that the petitioner was the co-owner of the property, therefore, the ejectment order could not be passed against the petitioner. Reliance is placed on case Mst. Sanobar Sultan and others v. Obaid Ullah Khan and others (PLD 2009 SC 71) and Syed Izhar ul Hassan Rizvi v. Mian Abdul Rahman and others (1992 SCMR 1352). The learned counsel further argued that impugned order dated 28-2-2011 was passed without deciding the petitioner's application under section 26 of the Punjab Rented Premises Act, 2009 for appointment of local commission, therefore, the impugned order is illegal.

4. On the contrary, the learned counsel for the respondent No.3 argued that there is concurrent finding, of two Courts below and in absence of any jurisdictional defect, the said findings cannot be interfered with by this Court in its constitutional jurisdiction. Further submits that petitioner has not paid any rent after November, 2007 and no documentary proof was produced on the record of trial Court or Appellate Court to show that the rent was regularly paid by the petitioner to respondent No.3 and subsequently in Court. It is further argued that no title document has been produced by the petitioner to show that his brothers had purchased property from Pakistan Evacuee Trust Property Board and thus he has become co-owner of the rented property. Adds that the suit for removal of encroachment by the petitioner's brothers is still pending adjudication and till the decision of that suit, it cannot be said that he has become the co-owner of the property, therefore, the case-law relied upon by the petitioner is not applicable. Learned counsel, for the respondent No.3 further argued that admittedly the petitioner's father was tenant of respondent No.3 since 1963 and after the death of his father, the petitioner became tenant of the property subject to new terms and conditions, therefore, the tenancy is not denied and as the petitioner's predecessor and thereafter, the petitioner was in possession of the property since 1963 as tenant, there was no occasion for any encroachment by the respondent No.3 in the disputed property as alleged. Submits that the judgments of two Courts below are absolutely valid.

5. I have given my anxious consideration to the arguments raised by learned counsel for the parties and have also gone through the record.

6. The first question for determination is whether issues regarding default of the petitioner were correctly appreciated in the impugned judgments. The respondent No.3 filed ejectment petition against the petitioner on the ground that she is owner of the demised property and the same was given to the father of the petitioner on rent in October, 1963. The rent has been regularly paid by the father of the petitioner. It is further alleged in the ejectment petition that the shop was given to the petitioner after the death of his father according to new terms and conditions and petitioner had been paying rent thereafter. The aforesaid contention of the respondent No.3 has not been denied by the petitioner and there is no dispute that the petitioner is tenant of respondent No.3. Mst. Surraya Begum, respondent No.3, appeared as AW-1 and submitted her affidavit as Exh.A-1 and affirmed that the petitioner/ respondent No.1 did not pay the rent from November 2007. During cross-examination, she also denied the suggestion that the petitioner/respondent No.1 was paying rent regularly. Aman Ullah appeared as AW-2 and Muhammad Tanvir as AW-3 who have fully supported the statement of respondent No.3 (AW-1). The respondent No.3 produced copy of registered Sale-deed No.1594 as Exh.A-4 and agreement regarding rent as Mark-A. On the contrary, the petitioner/ respondent No.1 appeared as RW-1 and submitted his affidavit as Exh.R-1. He affirmed that the disputed shop was obtained by his father on rent at the rate of Rs.300 per month. He further added that after the death of his father; he took possession of the shop from respondent No.3 and rent of the shop was increased upto Rs.6,000 per month. He, however, denied that he is defaulter in paying the rent. Muhammad Khalil appeared as RW-2 and Maqsood Ahmad as RW-3 who supported the contention of the petitioner. From the above, it is evident that petitioner has not denied the tenancy and the main controversy involved in this matter is regarding the payment of outstanding rent. The petitioner has not produced any document on record to show that the rent has been paid by him from November, 2007 onward. No rent receipts were produced by the petitioner before the trial Court or even as additional evidence before Appellate Court. The learned counsel for the petitioner though argued that the rent has been deposited in the Court, however, frankly admits that neither any receipt of deposit of rent in Court has been produced before the trial Court nor any effort was made to produce the said documents as additional evidence. In the circumstances, such documents which are not part of record and have not been exhibited cannot be considered and the concurrent findings of both the Courts below on issues Nos.1, 3 and 4 are neither perverse nor result of any misreading or non-reading of evidence available on record.

7. The second argument of the petitioner that petitioner is co-owner of the property is also not supported by documentary evidence available on record. The petitioner is not in a position to refer to any document on record to show that petitioner has title of some part of property or there is any decree in favour of the petitioner declaring him as co-owner of the property. Exh.P-5 is merely a map of respondent's property and it is neither a title document nor confers any right to the petitioner regarding rented property. Further pendency of a suit for removal of encroachment by the petitioner's brothers does not entitle the petitioner to retain the admittedly rented property without paying its due rent, therefore, the issue No.2 was also correctly decided by Courts below and the case-law relied upon by the petitioner is not applicable to the present case.

8. The argument raised by the petitioner that impugned ejectment order was passed on 28-2-2011 without deciding the petitioner's application for appointment of local commissioner is also not sustainable and contrary to the record. According to record, the said application was duly heard and dismissed on 15-10-2010 by learned Special Judge Rent.

9. In any case while deciding Writ petition, this Court does not act like a Court of Appeal and concurrent findings of two Courts below cannot be interfered with by this Court in its constitutional jurisdiction unless there is misreading or non-reading of evidence or finding is based on no evidence or patent illegality or jurisdictional defect has been committed by the Courts below. As discussed above, no such defects are found in the impugned orders. Reliance is placed on case Muhammad Ramzan and 12 others v. The Member (Revenue), Board of Revenue Punjab, Lahore and 7 others (1994 SCMR 55) and Shajar Islam v. Muhammad Siddique (PLD 2007 Supreme Court 45).

10. In view of above, the instant writ petition is without substance and same is dismissed with no order as to cost. A.G./A-7/L Petition dismisse