1982 PLP 1280 (CLC)

S. M. Zamir Zafdi for Petitioner. Ch. Muhammad Rashid Ahmad for Respondents Nos. 1 to 4. Nemo for Respondents Nos. 5 and 6. Date of hearing : 16th June, 1982. The facts leading to this writ petition are that a building in R. A. Bazar, Lahore Cantonment, was abandoned by an evacuee. It had a shop with residential portion in the rear. The shop was transferred to the petitioner, Niaz Ahmed, while the residential portion was transferred to respondent No. 1, Muhammad Hussain. The shop was transferred as shop No. 34 and the residential portion as house No. 183. Respondent No. 1 filed an applica tion for ejectment of the petitioner from a room in the said building, herein after referred to as the room in dispute, alleging that it was part of the house transferred to him and was occupied by the petitioner as a statutory tenant by virtue of the provisions of section 30 of the Displaced Persons (Compensa tion. and Rehabilitation) Act, 1958. It was on the ground of default that respondent No. 1 sought eviction of the petitioner. The application was resisted by the petitioner contending that the room in dispute was store‑room forming part of the shop and thus the relationship of landlord and tenant did not exist between the parties. He did not allege the payment or tender of rent and denied his liability to pay rent for the room in dispute. During the pendency of the ejectment application, the residential portion was transfer red by respondent No. 1 in favour of respondents Nos. 2 to 4, Abdul Ghafoor and others and, thereupon they were also made parties to the proceedings. After recording the parties' evidence it was held by the Rent Controller, who was seized of the ejectment matter, that the room in dispute was part of the residential portion and, therefore, relationship of landlord and tenant existed between the parties. Since the petitioner has not alleged the payment or tender of rent, the learned Rent Controller ordered his eviction without holding further inquiry into the question of default. The petitioner filed an appeal against the order of the learned Rent Controller but without success. He has, therefore, invoked the Constitutional jurisdiction of this Court to assail the orders of the two tribunals below 2. It was contended by learned counsel for the petitioner that the learned lower‑Tribunals had misread certain documents produced in evidence and had omitted to take into consideration a material document hawing great impact on the point in issue and thus their orders were open to interference by this Court. In this connection, he made reference to copies of entries in General Land Register, Exhs. R. 4 and R. 5 in which the area of said shop is entered as 615 Sq. Ft. while the area of the above house is given as 80 Sq. Ft. It was pointed out by the learned counsel that respective areas of the shop and house were not taken into consideration by the learned Rent Controller or the learned Additional District Judge (who had decided the appeal). He also invited my attention to copy of building plan Exh. R. 3 in which the room in dispute has been shown as store‑room of the shop. Admittedly, this room is annexed to the petitioner's shop on the one side and to the respondent's house on the other. During the pendency of the writ petition before me certain controversy arose with respect to the reconstruction of the room in dispute whereupon I had appointed a local commissioner. He had reported that there were two doors of the room in dispute opening into the shop. One of these doors has a wooden frame and planks but the other had been temporarily covered with bricks. According to the petitioner this covering was done by the respondents by raising a wall. No order regarding the re‑construction of the room in dispute was, however, made by me because the parties wanted me to decide the writ petition, .out of turn, instead of making an order in regard to the re‑building of the room in dispute, which I had agreed to do. 3. I have carefully gone through the orders of the two tribunals below and I find that they have not taken into consideration the area of the shop and that of the house as given in Exhs. R. 4 and R. 5. The learned Additional District Judge had not at all taken into consideration the building plan, Exh. R. 3, while it was misconstrued by the learned Rent Controller inasmuch as according to the learned Rent Controller it was a demarcation plan. With regard to these documents it was submitted by one of the respondents that they had been tampered with at the instance of the petitioner. If it was so, the learned lower tribunals should have discarded the said documents for being not genuine but this was not done by either of the two. I believe that the said three documents had lot of bearing on the question involved in this case and since they were not duly considered by the learned lower tribunals their orders will have to be struck down for being without lawful authority. 4. Resultantly, I accept this writ petition, set aside the orders of the two tribunals below and send back the case to the learned Rent Controller with the direction that he shall allow the parties to produce additional evidence regarding the genuineness or otherwise of the documents Exhs. R. 3, R. 4 and R. 5. He shall also record additional evidence of the parties regarding the area of the house and the shop in question with and without the room in dispute or appoint a local commissioner to find out their areas. After doing this, he shall re‑decide the ejectment application by taking into consideration the evidence already on the record and the additional evidence and the local commissioner's report, if any. Since the parties have been litigating for a long time the learned Rent Controller shall decide the case afresh before the coming summer vacations. If an appeal is filed against his order it shall also be disposed of within two months of the presentation of the appeal. There shall be no order as to costs. 5. The parties are directed to appear before the learned Rent Controller on 6‑7‑1982. M.Y.M Appeal dismissed.