P L D 1994 Peshawar 271 (PLP)

MUHAMMAD BASHIR KHAN JEHANGIRI, J: ‑‑This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, is directed against the orders dated 24‑5‑1992 and 10‑4‑1994, passed by the learned Rent Controller, Charsadda and the learned Additional District Judge, Charsadda respectively ordering the petitioner's ejectment from the disputed shop. The shop was let out to the petitioner by Said Ahmad Shah, the previous owner, who had gifted it to respondent No.1. In the application instituted on 10‑10‑1988, the ejectment of the petitioner was sought on the grounds of default in payment of rent; bona fide personal requirement of the landlady and; the petitioner having committed such acts as had impaired the value and utility of the shop. The application was allowed by the learned Rent Controller by his order dated 24‑5‑1992 on the sole ground of default in payment of rent. The issues on the question of personal requirement of respondent No.1 and impairing the value and utility of the shop were found against respondent No.1.

2. The petitioner's appeal was dismissed by the learned Additional District Judge, Charsadda, acting as appellate authority under the West Pakistan Urban Rent Restriction Ordinance (No. VI of 1959) on 10‑4‑1994 affirming all the findings of the learned Rent Controller.

3. Aggrieved by the orders of the learned Rent Controller and the learned appellate authority, the petitioner has impugned the legality of the aforesaid orders in this writ petition.

4. The learned counsel for the petitioner, in support of this petition, has raised the following contentions:‑‑ (a) That notice under section 13‑B (previously it was section 13‑A) of the N.‑W.F.P Rent Restriction Ordinance which had to be served upon the petitioner through registered post acknowledgement due was not served accordingly with the result that the petitioner could not be adjudged to have been guilty of default in payment of rent: and (b) that the findings of the Courts below suffered from glaring mis reading and non‑reading of the evidence and maintained that `Kardar' of respondent No.2, namely, Zaman Shah R.W. who used to collect rent from the petitioner "according to custom of Charsadda" "informed orally for the increase of the rent and transfer of the ownership in favour of respondent No.1'.

5. After hearing the learned counsel for the petitioner at some length, we are of the considered view that there is no merit in these submissions. It will be seen that the plea pressed into service in ground (a) ante was neither taken up specifically in the written statement nor in the witness‑box and nor in the memorandum of appeal. It was perhaps agitated for the first time before the appellate authority at the time of arguments. Nonetheless, it was repelled by A. the appellate authority for the following cogent reasons:‑‑ "So far as the relationship of landlady and tenant is concerned admittedly it is there as is evident from para. No.3 of the replication submitted by the tenant appellant. Since the ejectment of the tenant appellant has been made on the ground of his default in payment of rent, therefore, I have to see as to whether he is a defaulter or otherwise and in this respect suffice it to refer to the evidence and record available on file. The landlady in support of her petition in addition to her general attorney has got examined officials of Excise and Taxation and C & W Departments. Mian Akram Shah her general attorney has supported the contents of the ejectment petition filed by the landlady. The tenant appellant has got examined himself as R.W.3 and he in his cross‑examination has deposed that he is paying the rent to Zaman Shah `Kardar' of the landlady. He further added that he has never paid the rent to the landlady directly. He has, however, made it clear that Zaman Shah has got no power of attorney whatsoever on behalf of the landlady and appearing as R.W.1 Zaman Shah named above in his cross‑examination has admitted that he has never received any rent whatsoever neither on behalf of the landlady nor her husband."

6. It has been conceded not only in the written statement but also in the witness‑box that the petitioner was aware that the disputed shop had been transferred to respondent No.1. It will be seen that the transferee from the original landlord would be covered by the definition of landlord as a person for the time being entitled to receive rent in respect of the rented building or land. Such being the case, the relationship of landlord and tenant came into existence between the parties before us once the tenant had not challenged the knowledge, of such transfer firstly in the written statement, secondly in the witness‑box and lastly in the memorandum of appeal. The tenancy in the circumstances was thus in no way dependent upon the service of notice under section 13‑A or 13‑B of the N.‑W.F.P. Rent Restriction Ordinance.

7. The contention that the finding on the question of default in payment of rent is not sustainable in law on the ground of misreading or non‑reading of evidence has no substance, as both the Courts below have come to the conclusion, after examining the evidence brought on the record, that the plea of the petitioner that he was paying rent of the shop to Zaman Shah `Kardar' of respondent No.1 was misconceived inasmuch as he was not proved to have been authorised by her to receive the rent. The appellate authority also reached a definite conclusion that even Zaman Shah had declined either to have acted as `Kardar' of respondent No.1 for receiving the rent or to have ever received any rent. Both the Courts below have rightly observed that the petitioner being the tenant of respondent No.1 had miserably failed to prove the payment of rent due for the year in dispute.

8. We are of the considered view that the fording on the question of default recorded by the learned two Courts of competent jurisdiction is not shown to have been the result of misreading or non‑reading of any evidence. Again the controversy as to whether the petitioner was or was not a defaulter in payment of rent is essentially a question of fact which has been adjudged by the forums competent to decide the same. The decision on a question of fact made by a competent Tribunal can be challenged before the High Court under Article 199 of the Constitution only on the ground that it is a case of either no evidence or of so glaring a mis reading or non‑reading of evidence as shocking to the conscience; otherwise the appreciation of evidence like the appellate Court is not the function of the High Court while dealing with the case in its extraordinary jurisdiction.

9. There is thus no force in this petition. The same is dismissed in limine. A.A./1589/P Petition dismissed.