1988 MLD 772 (PLP)

This Constitutional petition assails order dated 23‑1‑1980 passed by the learned Additional District Judge, Faisalabad, viz. respondent No.1 and further impugns the maintainability of ejectment proceedings pending before the learned Rent Controller, i.e. respondent No.2 in respect of the disputed premises filed by Abdul Ghafoor respondent No.3.

2. The facts leading upto the instant constitutional petition, briefly stated, are that property No.120, Ward No.8, Karkhana Bazar, Faisalabad, which consists of different shops contiguous to each other and is admittedly an evacuee property was transferred to different persons. Three shops contiguous to each other forming part of property No.120 having a common staircase were transferred to Islam‑ud‑Din predecessor‑in‑interest of the petitioners herein, Muhammad Bakhsh and Abdul Hayee. Abdul Ghafoor respondent No.3 has purchased the shop which was transferred to Abdul Hayee.

3. In 1978, Abdul Ghafoor respondent No.3 filed ejectment application under the provisions of the Rent Restriction Ordinance, 1959 against the petitioners seeking their ejectment from the roof of Shop No.6, Ward No.8 of property No.120 which he purchased from Abdul Hayee, the original transferee of that shop. The ejectment application of respondent No.3 was contested by the petitioners who raised number of preliminary objections which led to the framing of the following preliminary issues:‑‑ (1) Whether this Court has necessary jurisdiction to adjudicate upon the matter? O.P.R. (2) Whether the petition is premature for want of notice under section 13‑A of the Ordinance and section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958? O.P.R. (3) Whether the petition is barred by the principle of sub judice? O.P.R. (4) Whether there exists relationship of landlord and tenant between the parties? O.P.P. (4‑A) Whether the Rent. Restriction Ordinance is applicable to the disputed roof? (5) Relief.

4. After considering the parties' evidence in respect of the aforementioned preliminary issues and after hearing them, the learned Controller vide his order dated 31‑3‑1979 decided all the preliminary issues in favour of respondent No.3 and thus set aside the preliminary objections raised‑ by the petitioners. Subsequently, on merits, he framed only one issue viz:‑‑ (1) Whether the petitioner requires the shop in dispute in good faith for his own use and occupation? (2) Relief.

5. This issue was found by the learned Rent Controller against respondent No.3 and thus he dismissed his ejectment petition.

6. Respondent No. 3 preferred an appeal before the learned Appellate Authority, i.e. the Additional District Judge, Faisalabad, who vide his impugned order dated 23‑1‑1980 accepted the appeal and remanded the case to the learned Controller with the following directions:‑‑ (a) An order under section 13(6) of the Ordinance VI of 1959 be passed against the respondents in favour of the petitioner. (b) The issue regarding the alleged default in the payment of rent be framed and be adjudicated upon in accordance with the law. (c) The parties shall be afforded opportunity to lead more evidence, if they so like.

7. The aforesaid order dated 23‑1‑1980 passed by the learned Additional District Judge, Faisalabad, has been impugned through the present constitutional petition.

8. It has been mainly contended in the under‑consideration constitutional petition that the roof of the shop from which ejectment of the petitioner is sought, does not fall within the ambit of a rented building. In regard to the said roof no tenancy, contractual or statutory, has ever been constituted between the petitioners and respondent No.3. It has also been urged that no notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 was ever served by respondent No.3 on the petitioners.

9. The admitting note dated 23‑9‑1980 of this Court reads as follows:‑‑ "The learned counsel submits that the learned Rent Controller does not have any jurisdiction to entertain a petition for eviction in respect of a roof. It is further argued that no notice under section 30, Displaced Persons (Compensation and Rehabilitation) Act, 1958 had been served. The petitioner had earlier filed an appeal being SA.O. No.191 of 1980 on similar grounds which was admitted by my learned brother Mr. Justice Nisar Ahmad. This petition raises important questions relating to jurisdiction. Admit Notice. Further proceedings are stayed meanwhile, subject to notice:"

10. In the above circumstances, the most crucial point which emerges from the present petition and requires determination is as to whether roof in question from which the ejectment of the petitioners is sought by respondent No.3 is a rented building and whether in regard to the said roof, relationship of landlord and tenant subsists between the parties. On this point, the learned Controller has already recorded a finding in favour of respondent No.3. It is note worthy that the findings of the learned Rent Controller on the question of existence of relationship of landlord and tenant between the parties and about the maintainability of ejectment petition were challenged by the petitioners before the learned Appellate Authority who vide his order dated 13‑2‑1980 upheld the findings of the learned Rent Controller and dismissed the petitioners' appeal. The order passed by the learned Additional District Judge, on 13‑2‑1980 has not been impugned in the present constitutional petition and the same has thus attained finality. The impugned order of the learned Additional District Judge dated 23‑1r. 1980 does not contain any findings regarding the points on which the present constitutional petition is based. In the impugned order the question of subsistence of relationship of landlord and tenant between the parties and the issue pertaining to the maintainability of ejectment petition under the provisions of the Rent Restriction Ordinance, 1959, about the roof in question have not been dealt with as these questions were decided by the learned Rent Controller as preliminary issues vide his judgment dated 31‑3‑1979 while the appeal which has been disposed of by the learned Additional District Judge through the impugned order dated 23‑1‑1980 was directed against the subsequent judgment dated 9‑9 1979 passed by the learned Rent Controller whereby he decided the issue on merits about the personal need in good faith against respondent No.3 and dismissed his ejectment petition. Even in this appeal no cross‑objections were filed by the petitioners challenging the findings of the Controller regarding the preliminary issues.

11. It would thus transpire from the above observations that as a matter of fact the grounds on which the present constitutional petition is based are no more available to the petitioners as the findings of the learned Controller in regard to these contentions have already attained finality on account of the order of the Appellate Court dated 13‑2‑1980 which has not been challenged through the present constitutional petition.

12. Even if we advert to the merits of the case it may be observed that according to section 2(a) of the Rent Restriction Ordinance, 1959, "building" means any building or part of a building let for any purpose, whether being actually used for that purpose or not, including any land, godowns, outhouses, together with furniture let therewith, but it does not include a room in a Sarai, hotel, hostel, or boarding house. Roof is essentially a part of the building and, therefore, ejectment of a tenant from roof may be sought under the provisions of the Rent Restriction Ordinance, 1959, provided the roof is let to a tenant for residential or commercial purposes.

13. In the circumstances of the instant case, the predecessor‑in‑interest of the petitioners, was already using the roof in question as part of his compound. But after the transfer of the shop including the roof in favour of the predecessor of respondent No.3, tenancy got constituted in respect of the roof in question between :he predecessor‑in‑interest of respondent No.3 and the predecessor‑in-interest of the petitioners. In Khuda Dad Khan v. Muhammad Abdul Hanan and 6 others 1980 C L C 500 it has been held by this Court that the moment a property in the pool is transferred, the occupant becomes tenant of the transferee by operation of law and the notice contemplated in proviso (rb) to section 30(1) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, has nothing to do with the creation of this relationship. Reliance on behalf of the petitioners has been placed on Muhammad Tufail v. Barkat Ali P L D 1967 Kar, 151, In this ' case, it was held that a right to use the roof of another person's shop was an easement of necessity and as such the user could not be held to be a tenant of the person owning the shop and, therefore, no ejectment could be passed against him. This authority is distinguishable on facts inasmuch as residential portion above the shop was in fact transferred to the person who was using the roof. In the present the shop including the roof was transferred to the predecessor‑in-interest of respondent No3 and not to the petitioners or their predecessor‑in -interest.

14. The petitioner's objection about the non‑service of notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and section 13‑A of the Rent Restriction Ordinance, 1959 has also already been disposed of by the Controller and the Appellate Aiwhorit,. The said order of the Appellate Authority has not been impugned in the present constitutional petition.

15. As regards the propriety of the impugned order whereby the learned Appellate Authority has directed the Controller to first pass an order under section 13(6) of the Rent Restriction Ordinance, 1959, it may be observed that after coming to the conclusion that relationship of landlord and tenant subsists between the parties in regard to the roof in question it was obligatory for the rent roller to pass an order regarding the deposit of the past as well as future rent. In Abdur Rehman v. Muhammad Tufail 1979 C L C 143, it has‑been held by this Court that subsection (6) of section 13 of the Ordinance makes it obligatory for a Rent Controller to direct a tenant to deposit arrears of rent, if any, and ,the future rent. This erection is to be given not only in a case in which the ejectment is sought solely on the ground of default or that ground is one of the grounds raised for securing the eviction of a tenant but also to every case for ejectment of a tenant regardless of the nature of the pleas raised therein. The upshot of the above discussion is that the grounds on which the instant constitutional petition is based and which also find mention in the admitting note have already been dealt with by the learned Rent Controller while disposing of the preliminary objections of the petitioners vide his order dated 31 3‑1979. An appeal filed against the said order was dismissed by the learned Appellate Authority on 13‑2‑1980. The said order of the Appellate Authority has not been impugned in the present constitutional petition. No exception can be taken to the order dated 23‑1‑1980 passed by the learned Appellate Authority whereby the case has been remanded to 'the Controller for passing an order under section 13(6) of the Ordinance VI of 1959 and for framing an issue on the question of default.

17. In this view of the matter, the present Writ Petition is devoid of any merit and is consequently dismissed leaving the parties to bear their own costs. M.Y.H./ Petition dismissed.