1980 PLP 756 (SCMR)

MUHAMMAD AFZAL ZULLAH, J.‑Leave to appeal is sought from the judgment dated 23rd of December 1979 passed by the Lahore High Court whereby the second appeal filed by the petitioner against his eviction from a house was dismissed on the ground that the petitioner having denied the relationship of landlord and tenant between the parties, had failed to establish his plea‑ and accordingly, the rent not having been paid, he was liable to be evicted. The petitioner's case was that the relationship between the parties was not of tenant and landlord, that the respondent on receipt of Rs. 3,000 from the petitioner on 3‑2‑1964 had agreed vide Exh. D. 1 to mortgage the house through a properly executed registered deed; and that although the formal mortgage deed was not executed nevertheless the petitioner could not be treated as a tenant under the West Pakistan Urban Rent Restriction Ordi nance as on account of the agreement he was not liable to pay the rent. That being so the respondent could not file an eviction application before the Rent Controller for petitioner's eviction as a tenant. This plea however, not having been accepted upto the High Court, the petitioner has sought leave to appeal through this petition. Learned counsel has not denied that no rent was paid by the petitioner to the respondent for over a decade. He has, however, reiterated the petitioner's plea namely, that on account of the execution of the document Exh. D. 1, which for all purposes, according to the learned counsel should have been treated as mortgage deed and could have been compulsorily registered, the petitioner should have been treated as a tenant. He also argued that the case being not of statutory tenancy, the petitioner, on account of the execution of the document Exh. D. 1 by the respondent in favour of the petitioner, could not be brought under the definition of tenant as contained in section 2 (f ) of the West Pakistan Urban Rent Restriction Ordinance. The argument raised by the learned counsel has no factual basis. All the learned Courts gave concurrent findings of fact against the petitioner with regard to the proof of the execution of the document Exh. D. 1 which was alleged to have been executed by Mohammad Sadiq son of the respondent landlady. The petitioner had failed to establish that Mohammad Sadiq had a special power of attorney to execute the document Exh. D. 1 behalf of his mother. The petitioner did not summon/examine Mohammad Sadiq in order to establish that he in fact executed the document and/or that he was authorised by his mother to do so. Reliance of the learned counsel on other material in the absence of cogent direct evidence, is of no help to the petitioner. Admittedly, he is rent defaulter for such a long time. This is not a fit case for grant of leave. This petition is accordingly dismissed. Petition dismissed.