MUHAMMAD SULEMAN vs ABDUL SATTAR

ORDER

' MUHAMMAD NAWAZ ABBAS', J.---This petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973 has been filed seeking leave to appeal against the judgment dated 22- 8-2002 passed by a learned Single Judge of the Lahore High Court in an appeal arising out of an ejectment petition.

2. The relevant facts in small compass are that Abdul Sattar,respondent herein the landlord of the shop rented out by him to Muhammad Iqbal, filed an application under section 17 of the Cantonments Rent Restriction Act, 1963 against said Muhammad Iqbal and his brother namely Jamal and present petitioner, who were jointly running the business in the shop on the grounds of personal need, reconstruction and subletting. The landlord pleaded in the ejectment application that present petitioner and Jamal were not party to the agreement of tenancy and they were in occupation of shop as sub-tenant without his permission. In the written reply jointly submitted by the petitioner and the said Muhammad Iqbal and Jamal it was pleaded that the premises were in occupation of the petitioner as tenant who spent considerable amount on the improvement of shop and that neitherMuhammad Iqbal was tenant of the premises nor die same were required by the landlord for personal need and re-construction. In view of the pleadings of the parties, a preliminary issue relating to existence of relationship of landlord and tenant between the parties was framed by the Additional Rent Controller and he having discussed the issue in the light of the evidence, held that the petitioner was not in possession of shop in his independent right as Muhammad Iqbal was the tenant of premises and consequently vide order dated 24-5-2001 allowed the ejectment petition. The appeal filed by the petitioner against the order of ejectment in the High Court was dismissed through the impugned judgment.

3. The appeal was filed by the petitioner without impleading Muhammad Iqbal, the tenant of the premises as party who had not filed a separate appeal, therefore, the learned Judge in the High Court observed that appeal was not properly constituted. The learned counsel for the petitioner has contended that the petitioner was in possession of the premises as tenant in his own right, therefore, the defect of no impleading the two respondents in the ejectment petition as party in the appeal would not render the same incompetent, We having attended the proposition fully agree with the view taken by the learned Judge in the High Court that Muhammad lqbal and Muhammad Jamal were necessary party therefore, their non-impleadment was fatal to the appeal. The examination of the case on merits would also show that no exception can be taken to the above view as no evidence oral or documentary was brought on record by the petitioner in proof of his tenancy.

4. The contention of the learned counsel for the petitioner that landlord having received the rent regularly from the petitioner has acknowledged his status as tenant, has no substance as there was no material on record in support thereof except the bare statement of the petitioner. The admitted position is that the premises were rented out to Muhammad lqbal and the tenancy continued in his name without any change till the filing of ejectment petition by the landlord and in absence of any proof of delivery of the possession of premises to the petitioner by Muhammad lqbal with the permission of landlord or the acknowledgment of the status of the petitioner as tenant of the premises, the petitioner would be deemed to be in occupation of premises through Muhammad Iqbal and would have no independent right to retain the possession and resist the ejectment.

6. For the foregoing reasons, this petition having no substance isdismissed and leave is refused.