2003 PLP 734 (MLD)

4. It is better and appropriate to reproduce the basic facts emerged out of the pleadings of the parties and evidence to resolve the controversy between the parties:‑‑ (i) Property in question is non‑residential. (ii) The appellant occupied the property in question as tenant in the year 1960. (iii) Rate of the rent was initially fixed Rs.86 per month. (iv) The landlord filed ejectment petition against the appellant in the year 1982 on the ground of default in payment of rent. (v) The matter was patched up between the parties and ejectment petition was disposed of in view of the compromise arrived between the parties to the following effect: "Rent was enhanced from Rs.86 to Rs.300 P.M. subject to the condition that appellant will pay the rent to the respondent against a valid receipt." (vi) The appellant did not pay the rent directly to the respondents and deposited the same in the Court of Rent controller in the absence of any order passed, by the Rent Controller. (vii) The respondent landlord sent a legal notice to the appellant under section 5‑A of the Punjab Urban Rent Restriction Ordinance, 1959, on 10‑7‑1995. (viii) The appellant sent reply to the landlord and stated that the rent has been paid in the Court. (ix) The landlord filed ejectment petition before Rent Controller on 10‑10‑1996. (x) Both the Courts below had given concurrent findings of fact against the appellant to the extent that appellant did not deposit the increased rent of shop in question at the rate of 25 % from 1‑7‑1989 till filing of ejectment petition, In terms of section 50‑A above. It is better and appropriate to reproduce relevant portion of the examination‑in‑chief of A.W.1 Ali Akbar landlord/respondent and cross examination of R.W.1 Ishrat Ali Khan tenant/appellant:‑‑ I have reappraised the evidence on record and I am of the view that appellant did not pay the rent to the respondents/landlords in terms of the compromise arrived between the appellant and respondents in the earlier round of litigation coupled with the fact that the appellant did not pay the increased rent in view of section 5‑A of the Punjab Urban Rent Restriction Ordinance, 1959 since 1989 despite receiving legal notice dated 10‑5‑1995 till filing the ejectment petition by the respondent landlords before the Rent Controller on 10‑10‑1996. The property in question is non‑residential therefore, the rent automatically increased after 3 years in view of section 5‑A of the Punjab Urban Rent Restriction Ordinance, 1959, In arriving to this conclusion, I am fortified by the following judgments:‑‑ . Haji Muhammad Ibrahim v. Haji Abdul Salam Bhatti (PLD 1996 Lahore 308); Utility Stores Corporation v. Abdul Mahmood Khan (2000 CLC 1306); Abdul Aleem Ansari v. Mst. Zubaida Shaheen (2000 CLC 1873); Javed Iqbal v. S.M. Khurram Wasti, Advocate (2000 CLC 126) and Pakistan State Oil v. Begum Rehana Sarwar. (2000 CLC 506). It is settled principle of law that interference in the concurrent finding of fact can be made by the High Court only when the evidence is misread and finding is based on surmises and conjectures or based on inadmissible evidence or there existed any error or defect in the procedure which may possibly have introduced an error or defect in the decision on merits. The learned counsel of the appellant failed to point out any piece of evidence which was misread or non‑read by the Courts below. Similarly appellant's counsel failed to point out any principle which was violated or not followed by the Tribunals below. In arriving to this conclusion, I am fortified by the law laid down by the Honourable Supreme Court in Musarrat Sultana v. Muhammad Saeed (1997 SCMR 1866). It is also admitted fact that possession of shop in question had already been taken by the respondents‑landlords by process of law by filing an execution petition before the Rent Controller. The appellant being aggrieved by the order of the executing Court filed an appeal before the Additional District Judge which was dismissed. The appellant did not file any appeal against the judgment and decree of the First Appellate Court passed in execution proceedings. In view of what has been discussed above this appeal has no merits and the .same is dismissed. H.B.T./I‑140/L Appeal dismissed.