SIRAJ DIN Versus Malik ABDUL MAJEED
Siraj Din petitioner herein, by means of this Constitutional petition has challenged order dated 26‑7‑1978 passed by the learned Rent Controller and order dated 16‑4‑1979 of the learned District Judge, Lahore, whereby petitioner's ejectment from the disputed property was ordered by them.
2. The relevant facts in brief giving rise to this petition are that the respondent No. 1 on 28‑9‑1976 filed petition seeking ejectment of the petitioner from the disputed property on the grounds that he required the same for his personal need; the tenant has committed default in payment of rent and damaged the property. The application was resisted by the petitioner. It was maintained in the written reply that he was statutory tenant in the disputed property. He was not served with a notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, therefore, no relationship of landlord arid tenant existed between the parties. He denied the allegation of default committed by him rather stated that he had paid rent to the respondent.
The learned Rent Controller framed following preliminary issues:‑‑
(1) ??????? Whether a valid notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, was served upon the respondent, if not what is its effect?
(2) ??????? Whether the petitioner has any cause of action against the respondent?
(3) ??????? Whether the relationship of landlord and tenant exists between the parties?
The learned Rent Controller vide his order dated 26‑7‑1978 decided all the issues in favour of Malik Abdul Majid respondent and directed petitioner's ejectment from the disputed property. The petitioner challenged the aforesaid order in appeal which was dismissed on 16‑4‑1979 by the learned District Judge, Lahore. Hence this petition.
3. Learned counsel for the petitioner contended that the petitioner did not categorically deny the relationship of landlord and tenant and it was denied for want of service of notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. It was not a contumacious denial. It was, therefore, incumbent upon the learned Rent Controller as well as the first appellate authority to have provided opportunity to him to prove the payment of rent after it was found that service of notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 was not necessary. It was next contended that no issue about the default in payment of rent was framed. The findings of respondents Nos. 2 and 3 holding the petitioner a defaulter were untenable.
4. Learned counsel for the respondent No. 1 on the other hand, argued that the petitioner admittedly came into possession of the property after 1958 but raised false plea and denied relationship of landlord and tenant between the parties on the ground that the notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 was not served upon him. This plea having been found false it was not necessary to hold further inquiry as to whether the petitioner had committed default in payment of rent of the disputed premises to the respondent. It was also stated that the petitioner while appearing before the learned Rent Controller in his examination‑in‑chief stated that the respondent did not receive rent from him but in cross‑examination stated that he had paid rent.
5. I have considered respective contentions raised by learned counsel for the parties and have perused the documents on the file. Learned counsel for the petitioner did not place on the record evidence recorded by the learned Rent Controller. However, learned counsel for the respondent No. 1 has filed a copy of the statement of the petitioner made before the learned Rent Controller. The petitioner had admitted in his statement that he came into possession of the property in dispute 4/5 years prior to 1965. Obviously, therefore, he was not entitled to claim benefit of notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. Respondents Nos. 2 and 3, therefore, rightly held that there was no need of the service of such a notice. The petitioner had taken a wrong plea in the written statement for denying the relationship of landlord and tenant between the parties. The plea having proved false did not entitle him to claim inquiry into the matter as to whether he committed default in making payment of rent of the disputed premises to the landlord. The perusal of petitioner's statement further shows that in the examination‑in‑chief he admitted that the respondent did not receive rent from the petitioner and in the cross‑examination he added that he did not remit the rent to the respondent through money order after he refused to receive the same. He, however, contradicted himself by subsequently adding that the respondent received rent from him when he went to pay the same in his house but he did not issue any receipt. Although the learned Rent Controller did not frame issue as to whether the petitioner committed default in payment of rent, nevertheless the petitioner himself made attempt to show that he was not defaulter in payment of rent. His statement alone was sufficient for the learned Rent Controller to infer that he had not paid rent to the respondent.
6. After hearing learned counsel for the parties at length I am not inclined to exercise discretionary writ jurisdiction in favour of the petitioner' who had not brought on the record anything to show that he had paid rent of the disputed property to the landlord and his denial of relationship of landlord and tenant between the parties was bona fide.
7. ???????? This petition has no merit and is hereby dismissed with costs.
8. ???????? This also disposes of C.M. No. 967 of 1980.
MA.K./3235/L
Petition dismissed.