1984 PLP 1133 (SCMR)

The points for the consideration whereof the writ petition initially admitted are contained in the order of the High Court dated 24th of January, 1984 a copy of which has been placed on the record of this petition. They amongst others included the point that the respondent landlady had by her conduct shown that she was more interested in the enhancement of the rent rather than the eviction of the petitioner ; that an annexe built in the same premises was sold by the respondent landlady during the pendency of the case without an explanation as to why she could not occupy the said property in the premises of the building in dispute ; that the tenant had spent about Rs. 35,000 on improvement and that the said amount having been made the subject of negotiations between, n the parties was permitted by the landlady to be adjusted in monthly rent and that the agreement apart from being beneficial to the petitioner in several other ways would convert the tenancy into one of fixed term and that he would not be liable to eviction for another 14 years and 7 months. A learned Single Judge in the High Court when deciding dealt with these points and repelled the same on factual as also legal plan. On account of the order that we have decided to pass in this case it is not necessary to deal with the treatment of these points by the learned Judge of the High Court because that might prejudice the case of either party in so far as the disputed amount of Rs. 35,000 is concerned. Admittedly the writ jurisdiction of the High Court which in exercised by virtue of its Constitutional position and power is discretionary. This Court has by now in a number of cases, since the right to file second appeal in the Punjab was taken away pointed out that in cases of fac tual controversies the High Court would ordinarily not exercise its Constitutional jurisdiction in matters of ejectment of tenants. It is also uncontroverted legal position that the power to grant leave to appeal by this Court from judgment and order of the High Court is highly discretionary and it is only when in addition to there being some legal point for consideration the Court finds the matter fit for reconsideration that the leave to appeal is granted. In the foregoing context it would be of advantage to reproduce here the last paragraph of the impugned judgment :‑ "Lastly, counsel canvassed that the respondent lady being very old and having no other family member did not need as much accommo dation for her personal use and that her failure to appear in the witness‑box was quite material. It goes without saying that it is prerogative of the landlord to select any of the premises belonging to him. Her attorney explained her need at length. The reason apparently for failure on her part to appear in the witness‑box was that being a pretty old person residing at Lahore, she ‑could not make it convenient for herself to attend the Court. The petition was pending since 1977 and had been remanded two‑three times. Probably, she had been sceptic about her statement on any given date and avoided appearance. Conversely, the learned Additional District Judge was right in observing that there was sufficient evidence of the petitioner residing in England alongwith his family for years. It was a material circumstance. According to the latest pronouncement of the Supreme Court in Muhammad Sharif v. Muhammad Afzal Sohail etc. P L D 1981 S C 246 the findings of fact, however, erroneous those may be, could not be upset in writ jurisdiction." We specifically asked the learned counsel with regard to the under lined portion as to whether it was factually correct and then put him on notice as to why it should not be treated as a case of abandonment by the tenant and leave be not refused on the ground that it is not a fit case for the grant thereof. It was also pointed out to him that the case as notes to the above‑reproduced part of the High Court judgment is pend ime since 1977 and that there have been several remands. The learned counsel to be fair to him, candidly stated and rightly so that at relevant times in so far as the ejectment proceedings are concerned, the petitioner was in England. He also made the further statement by prefixing it with the sentence that he would never tell a lie, that the wife and a daughter are living with the petitioner abroad and it is not known when he would return and that it is on account of the illness that he has been compelled to stay abroad for such a long period. Learned counsel also informed the Court that the only member of the family of petitioner living in the premises in question is a daughter ; who when ques tioned further learned counsel stated, is under the supervision of the son- in‑law of the petitioner who lives in that part of the same premises which according to the petitioner's contention was added by way of improvements pit a considerable cost. This appears to us to be a case of abandonment by the petitioner in favour of his son‑in‑law, without there being a new tenancy in favour of the son‑in‑law whose position in that context would not be in any way better than that of a licensee or at the most sub‑tenant. Learned coun sel did avail of the opportunity, on the notice to show cause as to why the petition should not be dismissed on this short ground namely that it is not a fit case for grant of leave to appeal. He remained unable to con vince us regarding this point and also of the bona fides of his client to seek leave to appeal. While doing so he however raised a legal point that in case this Court dismissed the petition on the aforestated ground now will the dispute and controversy regarding the assertions and denial of the parties that Rs. 35,000 were spent on the improvements in the premises will be resolved. This without furnishing any ground for granting leave to appeal might be a subject for decision by a civil Court in accordance with the lave and the dictates of justice but without affecting the liability regarding ejectment. We accordingly dismiss this petition on the ground that it is not a fit case for leave to appeal with the observation that when the premises are vacated in pursuance of the orders of eviction, It would be no bar to the petitioner making claim subject to the procedural as also substantive law, regarding the amount, which as it appears from the proceedings, is a disputed one. With these remarks this petition is dismissed. S. Q. Petition dismissed.