1982 PLP 1071 (SCMR)

ABDUL KADIR SHAIKH, J.-Facts shortly stated are that Mst. Umat-ul Salam, respondent 1, filed an application for ejectment of her tenant Akhtar Ali, respondent 2, under section 13 of the West Pakistan Urban Rent Restric tion Ordinance, 1959 on the ground that he had sublet the rented shop to Khan Shah, respondent 3, without her consent. The Rent Controller rejected the ejectment application but on appeal at the instance of Mst. Umat-ul-Salam the Additional District Judge, Peshawar held that the tenant Akhtar Ali had unauthorisedly sublet the shop to Khan Shah, and he, accordingly, directed their ejectment from the demised premises. Akhtar Ali and Khan Shah challenged the order of the Additional District Judge in second appeal in Peshawar High Court, but it was dismissed, and the order of the High Court was finally upheld by this Court in C. P. S. L. A. No. 177-P of 1978 filed by Akhtar Ali and Khan Shah which was dismissed on 7th January, 1979.

2. The petitioner Roghan Shah son of Khan Shah, the aforesaid unauthorized sub-tenant, then filed a suit in the Court of Senior Civil Judge, Peshawar on 3rd January, 1980 for grant of declaration that he is the tenant of Mst. Umat-ul-Salam for the past five-six years, on monthly rent of Rs. 120, and he is not liable to be evicted from the shop in dispute in execution of the order passed in ejectment proceedings filed by Mst. Umat-ul-Salam against Akhtar Ali and Khan Shah. The plaintiff also prayed for the consequential relief of permanent injunction restraining Mst. Umat-ul-Salam from ejecting him from the shop in dispute. Along with the plaint in suit, the plaintiff also filed an application for issuance of temporary injunction restraining Mst. Umat-ul-Salam from ejecting him from the shop on the basis of the eviction order passed in ejectment proceedings against Akhtar Ali and Khan Shah.

3. Learned trial Judge rejected petitioner's application by the order dated 1st March 1980 on the ground that he has not placed on the file any document which could show that he ever remained as tenant in the property in dispute on behalf of the defendant No. 1 (Mst. Umat-ul-Salam). Learned trial Judge further observed as under "The record shows that the defendant No. 1 had brought an ejectment application against the defendants 2 and 3 in respect of the property in dispute. That application was contested by the defendants 2 and 3 up to the Supreme Court of Pakistan. Defendant No. 3 is the father of the plaintiff. Defendant No. 3 had admitted the defendant No. 1 as his landlady but did not allege that his son the plaintiff was in fact the tenant in the property in dispute. Plaintiff too has not bothered to implead himself as party in those proceedings. This apparently shows that the plaintiff has got no prima facie case. The balance of convenience lies in favour of the defendant No. 1 as the issuance of the temporary injunction would deprive her from reaping the fruits of an order which has been obtained by her a very long litigation against defendants 2 and

3. Plaintiff would not suffer any irreparable loss, if he is ejected from the suit property in pursuance of order passed by a Court of law, which has been confirmed by the most superior authority of this country. In such circumstances, plaintiff's application is devoid of merits."

4. Petitioner's appeal against the order of the trial Judge was however allowed by the Additional District Judge, Peshawar on the ground that he was not a, party to the proceedings filed by Mst. Umat-ul-Salam against Akhtar Ali and Khan Shah and he was, therefore, not bound by the order passed in that case. As a result Mst. Umat-ul-Salam was restrained by a temporary injunction from ejecting the petitioner from the shop in dispute.

5. Challenge made by Mst. Umat-ul-Salam against the order of the Additional District Judge in revision application to Peshawar High Court however, succeeded as the Acting Chief Justice of the High Court upheld the views of the learned trial Judge reproduced earlier.

6. Petitioner now seeks special leave to appeal from the judgment of the High Court and the learned counsel appearing for him submits that the High Court has erred in interfering with the order passed by the learned Additional District Judge which is based on evidence on record and is backed by sound judicial reasons.

7. On query whether petitioner has any documentary evidence in support of the claim that he is the tenant of the shop in dispute, learned counsel for the petitioner conceded that except for oral evidence he has no other evidence to produce in this behalf'. In the circumstances of the case no exception can be taken with the view that prevailed with the learned trial e Judge that the petitioner has not placed on file any document which would show that he had ever remain as the tenant of Mst. Umat-ul-Salam, and, therefore, the petitioner has not been able to make out prima facie a good ease for grant of relief prayed for. The High Court, therefore, very rightly upheld the order of the learned trial Judge and set aside the one passed by the First Appellate Court, and we find no justification whatsoever for inter ference in this case. 8 The petition is dismissed in limine. Petition dismissed.