1990 PLP 920 (SCMR)

ABDUL KADIR SHAIKH, J.‑‑This is a petition for review of the judgment of this Court dated 2‑5‑1988 whereby Leave Granting Order in Civil Appeal No‑171‑K of 1985 between the parties was recalled, and C.P.LA. No.395‑K of 1985 which gave rise to the above appeal, was dismissed. Facts briefly stated are as under: Mst. Fatima Ashraf, first respondent herein, let out the premises in dispute by an agreement dated 1‑12‑1975 to National Construction Company, second respondent, on monthly rent of Rs. 5,

700. The second respondent afterwards sublet the premises to Mrs. Shahna7 Sehgal, petitioner herein, and certain others who are not parties to this petition; it is however a controversial question whether subletting was made with permission of the landlady or not. Later, the landlady, the first respondent, made an application for ejectment of second respondent from the premises and joined the sub‑tenants as parties. First respondent also applied to the Rent Controller for a direction to be issued to second respondent and the sub‑tenants under section 16 of the Sindh Rented Premises Ordinance, 1979 for deposit of arrears of rent and future rents. In these proceedings, petitioner contended that she had paid rent in respect of the portion of the premises sublet to her to the second respondent at the rate of Rs. 1,800 per month up to July 1977 and thereafter she was depositing rent in the Court of the Rent Controller in Miscellaneous Rent Case No. 272 of 1978. The other sub tenants also made assertions to the same effect. Learned Rent Controller however took the view that the first respondent is liable to deposit rent as he is the original tenant of the applicant (second respondent herein)'', and since he "has not produced any proof that the rent has been paid to the applicant for the disputed period", he directed the second respondent by the order dated 19‑4‑1984 to deposit arrears of rent from December 1976 to March 1980 amounting to Rs.2,28,000 before 10‑8‑1980 and also deposit further rent at the rate of Rs.5,700 per month from April 1980 for each succeeding calendar month. On the failure of the second respondent to deposit rent as above, learned Rent Controller struck off the defence of the said respondent by the order dated 8‑2‑1981 and directed that the vacant possession of the disputed premises he handed over to the first respondent. Petitioner challenged this order in an appeal before the Sindh High Court but it was dismissed by the judgment dated 6‑8‑1985. Leave to appeal was, however, granted by this Court in order to appreciate the plea raised on behalf of the petitioner that learned Rent Controller and the High Court failed to appreciate that petitioner is a sub‑tenant in respect of the portion of the disputed premises in her possession with express consent of the first respondent, and she had been paying rent. not to the first respondent, but to the second respondent company, which for purposes of rent laws is petitioner's landlord; and since petitioner had denied the existence of relationship of landlord and tenant between her and the first respondent it was incumbent on the Rent Controller to decide this question as a preliminary issue in the case before directing petitioner's eviction from the premises occupied by her as a sub‑tenant. However, at the regular hearing of the appeal on 2‑5‑1988 the appeal was ' dismissed for the reasons which may be reproduced hereunder: "At the hearing of the appeal today, learned counsel for the appellant is unable to support the assertion from record before us that appellant is proved to be the sub‑tenant in respect of the portion of the premises in her occupation with the consent of the first respondent. Since the very basis on which leave to appeal was granted has no support, no exception can be taken against the impugned judgment of the High Court. In view of the position of the case reflected today, leave granting order is recalled, and the petition is dismissed. The parties are, however, left to bear their own costs." It is now prayed by this petition that the above judgment be reviewed for the reason that petitioner is a sub‑tenant of the first respondent, and the sub tenancy was created with the written consent of the first respondent and it stands proved by certain documents produced in support of the review petition. We called upon the learned counsel for the petitioner to refer to any document from the paper‑book of Civil Appeal No. 171‑K of 1985 which was the record before the Court at the hearing on 2‑5‑1988, in support of the assertion that appellant is proved to be the sub‑tenant in respect of the portion of the ` property in her occupation with the consent of the first respondent, in spite of the observations made in the judgment under review that he was unable to do so. He was not able to do so even today, and in this behalf sought to rely upon certain documents produced in the paper‑book of the review Petition. Admittedly, these documents were not included in the paper‑book of Civil Appeal No. 171‑K of 1?85 although these were within the knowledge of the learned counsel and could have been easily included in the paper‑book or even a request for their inclusion could have been made at the hearing of the appeal. So far as the judgment of this Court dated 2‑5‑1988 is concerned, there is no error apparent on the face of the record, and the review petition cannot succeed. It is therefore dismissed, but the parties are left to bear their own costs. A.A./S‑517/S Review declined.