NASIM AHMAD KHAN Versus ADDITIONAL DISTRICT JUDGE, LAHORE

SYED HAMID ALI SHAH, J .---Father of the respondents had let the demised premises to the petitioner as far back as in October, 1973. The rent originally agreed between the parties was Rs.230 per month, which was enhanced to Rs.400 and then to Rs.500. Respondents' predecessor filed ejectment petition against the petitioner asserting therein that the premises are required for personal need and that he has no other residential property at Lahore. The petitioner contested the petition, filed written reply and controverted therein the assertions of the ejectment petitioner. Various preliminary objections were raised including the one that property has been sold-to him through agreement to sell dated 5-1-1986, resultantly the relationship of landlord and tenant has come to an end. It was also asserted in the written reply that property being a scheduled property in occupation of Lawyer, is being used as office-cum-residence involves the goodwill which petitioner has earned due to consistent use of his office. Learned Rent Controller passed the eviction order on 30-5-1994 and appeal against the eviction order met the fate of dismissal on 30-10-1995, hence this petition.

2. Learned counsel for the petitioner has contended that ejectment was sought on the ground of personal need of Akhtar Raza the predecessor of respondents Agha Pervez Raza and Roohi Rizvi. The respondents are permanent residents of Karachi. The original ejectment petition was filed on the personal requirement of deceased Akhtar Raza and for the personal need of his children. The personal need of the predecessor of the respondents abated on his death. Learned counsel in support of his contention has referred to the cases of Mst. Jamila Latif v. Ghulam Yazdani Khan 1981 SCMR 637, F.B. Davis v. Mrs. Shakar Khano Bai represented by L.Rs. 1986 MLD 1342, Muhammad Shafi and others v. Muhammad Ilyas 1986 SCMR 451 and Muhammad Aslam through its L.R. v. Wazir Muhammad PLD 1985 SC 46. The petitioner further added that amended ejectment petition was filed on 9-2-1994, after the death of Akhtar Raza. After the death of Akhtar Raza (24-1-1994) the successors of late Akhtar Raza have not asked for ejectment of the petitioner from the premises on their personal need. It was contended that during the proceeding in W.P. No.4938/1986, a consent order was passed on 22-4-1987, as a result thereof issue No.3-A was framed. On 8-6-1987. The issue was not framed according to the terms of order dated 22-4-1987 and thus the subsequent proceedings are nullity. Learned counsel has then submitted that learned Rent Controller has non suited the petitioner on the ground that there was no rebuttal. Conclusion of Rent Controller is erroneous as the legal heirs of Akhtar Raza, present respondents, have led no evidence, therefore, the question of evidence in rebuttal does not arise. Learned counsel has argued that issue No.3-A was framed in view of the order dated 4-10-1986, passed in W.P. No.4938/1986. The petitioner moved an application before the Rent Controller for permission to produce evidence on newly framed issue No.3-A. The evidence was closed illegally. It was lastly contended that no relationship of landlord and tenant exists between the petitioner and Agha Hyder Raza. Mr. Zawar Ahmed learned Rent Controller has held in order dated 29-5-1991 that relationship of landlord and tenant does not exist. The order was not challenged which attained finality, in view thereof, the proceedings for ejectment are not maintainable.

3. Learned counsel for the respondents Nos.3, 4 & 5(ii), on the other hand, has fully supported the impugned orders/judgments of Courts below and has submitted that concurrent findings are not open to challenge in writ jurisdiction. Resolution of complicated questions of facts are beyond the scope of constitutional jurisdiction of this Court. Learned counsel in support of his contentions has referred to the cases reported as Haji Said Wahab Khan v. Amjad Ali and others (2005 SCMR 840), M/s. Muhammdia Medical Hall, Khan Arm Dealers through Khurshid Alam v. Mahrnood-ul-Hassan and 3 others (NLR 1982 SCJ 23), and Muhammad Shard' and another v. Muhammad Afzal Sohail etc. (PLD 1981 SC 246). Learned counsel while referring to the cases of Haji Ibrahim v. S. Rehmatullah (Represented by L.Rs) (1985 SCMR 241) and Mst. Bashiran Bibi v. Addl. District Judge and others (1990 CLC 901) to contend that on death of the landlord, an eviction order becomes part of his heritable estate. It was. submitted by the learned counsel that determination of the questions regarding ownership or validity of an agreement to sell do not fall within the jurisdiction of Rent Controller and in this respect referred to the cases of Aadil Nadeem Rizvi v. Gohar Siddique and others (2004 SCMR 738), Muhammad Latif and another v. Muhammad Afzal and others (2004 SCMR 1614), Waheed Ullah v. Mst. Rehana Nasim and others (2004 SCMR 1568) and Wajid Ali Khan v. Sheikh Murtaza Ali and 2 others (2003 SCMR 1416). Learned counsel while referring to the cases of Haji Ibrahim v. S. Rehmatullah (Represented by L.Rs) (Supra) and Phool Din and another v. Abdul Majid (1981 SCMR 711) has submitted that eviction petition does not abate on the death of landlord. He summed up his argument by referring to various cases including Hameed Jilani Tiwana v. Abdul Aziz Ghafoor Khan and 2 others (2005 MLD 1232) and submitted that provision of C.P.C. are not applicable to the proceedings pending before Rent Controller.

3-A. Heard learned counsel for the parties and record perused.

The case has a touch of pathos. The respondents/landlords had knocked the door of the Court for simple relief of eviction around a quarter of century ago. Since then in the throes of agony and anxiety the petitioners have failed to seek eviction on the ground of personal requirement. They are deprived of the right to use their property at the alter of technicalities. The ejectment petition was instituted in the month of January, 1986 and more than 21 years have passed but the agony of landlord in seeking the ejectment of tenant on the ground of personal requirement, has not come to an end. His second generation is pursuing the eviction proceeding. The matter was delayed by resorting to procedural technicalities. The proceedings under the Urban Rent Restriction Ordinance do not require adherence to strict legal procedure. A Seeking ejectment on personal requirement is even simpler, where the statement of landlord is sufficient for ejectment order provided landlord proves that he has no other premises in his use and occupation in the same municipal area where such building or rented premises is situated.

4. Adverting to the case of the petitioner, who has submitted that at the time of filing of the ejectment petition, late Akhtar Raza sought eviction of petitioner on the ground of his personal need. The need of family or children finds no mention and as such immediately on his death the proceeding under reference have abated. This argument has no force, firstly the amended ejectment petition was filed by legal heirs of late Akhtar Raza and they have categorically stated in Para 4 of amended ejectment petition as under:--

In view of contents of para. 4, reproduced above, it cannot be said that the proceedings on death of predecessor of respondents Nos.3 & 4, have abated. Rent Controller is not bound to follow procedure provided in C.P.C. He can adopt any procedure for fair dispensation of justice. He has to see the bona fide of landlord and the inquiry through evidence in this respect. Provisions of C.P.C. as well as Qanun-e-Shahadat, 1984 do not apply strictly as Rent Controller is not a Court. Reference in this respect can be made to the cases of Hameed Jilani Tiwana (supra), Haji Khudai Nazer and another v. Haji Abdul Bari (1997 SCMR 1986), Ch. Muhammad Akmal v. Faisal Saeed Mirza and others (2004 CLC 862). Thirdly, it is settled law that need of landlord is the need of his family. Personal need does not extinguish on the death of landlord. Court in order to avoid multiplicity of proceedings and to shorten the litigation can mould relief according to the circumstances of the case, while holding so I find support from case of Haji Ibrahim (supra).

5. It has been submitted that respondents Nos.4 & 5 are settled permanently in Karachi and do not require premises for their personal use and occupation. The submission has no force. The predecessor of respondents Nos.4 and 5 has asserted in the ejectment petition that they have temporarily shifted to the house of their relative Mr. Hashim Raza and their host is unable to accommodate them further. Eviction proceedings have taken unreasonable long course, for which they could not stay with their relative and shifted to Karachi. Mere shifting to another town due to non-availability of adequate accommodation, does not disentitle the landlord to seek eviction of tenant from their premises.

6. The evidence of the petitioner was rightly closed as a direction for the final disposal of the case was given by the Appellate Court and Court while proceeding as per remand order provided an opportunity to the petitioner for production of the evidence, which the petitioner has not availed. As observed earlier, a considerable delay has been caused and yet there was no final decision. The arguments of the learned counsel for the respondent are well founded on the premises that a Rent Controller is not competent to determine the issues regarding ownership or agreement to sell. The law is settled that till such time the Court of competent jurisdiction decides about the existence of agreement of sale, the same should not be made the basis for denying the right of the landlord to receive rent or his claim to seek eviction of the tenant. There is plethora of judgments on this issue. If any case is needed, reference can be made to the cases of Aadil Nadeem Rizvi (Supra), Muhammad Latif (supra), Waheed Ullah (supra), Wajid Ali Khan (Supra), Iqbal and 6 others v. Mst. Rabia Bibi and another (PLD 1991 SC 242), Allah Yar and another v. Addl. District Judge and others (1984 SCMR 741) and Allah Ditta v. Muhammad Sarwar (1991 MLD 1335).

8(sic) Various grounds raised in this writ petition relate to the factual controversy. The petitioner has invoked jurisdiction of this Court seeking reappraisal and assessment of evidence, which is not permissible in writ jurisdiction. Writ petition is an extraordinary remedy and the resolution of complicated questions of facts are beyond the scope of constitutional jurisdiction.

9. The remedy of appeal which the statute has not provided to a litigant cannot be availed through invoking the writ jurisdiction. The Hon'ble Supreme Court of Pakistan in the case of Haji Said Wahab Khan (supra) has observed that interference in the concurrent findings must not be made under Article 199 of the Constitution.

10. For the foregoing this writ petition has no merit and the same is dismissed with costs throughout. However, the petitioner is given two months time for handing over the vacant possession of rented premises, to the respondents.

S.M.B./N-78/L Petition dismissed.