MUHAMMAD ASLAM Versus FAZALUR REHMAN

This writ petition is directed against order dated 21‑10‑1979 of the learned Additional District Judge, Lahore whereby he accepted the appeal filed by the respondent No. 1 and directed petitioner's ejectment from the shop in dispute. _

2. The relevant facts giving rise to this petition are, that respondent No.1 filed an ejectment petition against Muhammad Rafi the predecessor‑in‑interest of the petitioners on the ground that he committed default in payment of rent and created nuisance in the disputed property. The application was resisted and the learned Rent Controller framed following issues arising out of the pleadings of the parties:‑

(1) Whether the respondent has committed default in payment of rent to the petitioner? OPP.

(2) Whether the respondent ha.=, committed nuisance? OPP.

(3) Whether the petition under reply is misconceived and premature? OPP.

(4) Relief.

3. After recording evidence, he decided all the issues against Fazal‑ur Rehman respondent and dismissed on 6‑12‑1977 the ejectment petition. The respondent No.1 preferred appeal against aforesaid order which was allowed on 21‑10‑1979 and the petitioner's ejectment from the shop in dispute was ordered.

4. Learned counsel for the petitioners contended that the learned Additional District Judge based his decision on legal evidence. It was pointed out that neither any rent note nor any written agreement regulating the tenancy was available on the file. The learned lower appellate Court erred to rely on an observation of learned Rent Controller made m this behalf, in previous litigation between the parties. It was stated that the previous litigation had ended in compromise. The tenancy was renewed and on that basis the respondent No. 1 filed the ejectment petition out of which the impugned order had arisen. It was pointed out that in earlier ejectment proceedings the rate of rent was Rs. 25 per month but through compromise, arrived at between the parties before Mr. Moazam Hayat, Rent Controller, it was enhanced to Rs. 50 per month. It was stated that the tenancy in the instant case was oral as observed by the learned Rent Controller in paragraph 1 of the order dated 6‑12‑1977. It was argued that the learned Addl. District Judge had fallen into error to hold that the tenancy was written and therefore, the Petitioners' predecessor‑in‑interest committed default in not paying the rent as specified in the rent note.

5. None has appeared to prosecute this petition on behalf of the respondents.

6. I have heard learned counsel for the petitioners and have gone through the tile. It is established that the tenancy in the instant case was oral and not written as erroneously assumed by the learned lower appellate authority. The reference made regarding the rent note in the order dated 8‑5‑1964 by Malik Muhammad Ramzan, the Rent Controller, Lahore was irrelevant because subsequently a compromise had taken place between the parties before Mr. Moazam Hayat, Rent Controller, Lahore on 28‑6‑1971 according to which Muhammad Rafi, predecessor‑in‑interest. of the petitioners agreed to pay rent of the shop in question at the rate of RsS0 per month with effect from 1‑7‑1971 and respondent was entitled to receive arrears of rent with effect from 1‑7‑1969 to 3‑6‑1971 at the rate of Rs. 3750 per month. The tenancy was therefore renewed through compromise.

7. I have checked up the receipts regarding deposit of rent made by the petitioners acid find that no default was committed y them. I have, however, 4directed the learned counsel to place on the record, photostat copies of the "Ps showing deposit of tent made by the petitioners. The order has bees complied with.

8. For the foregoing reasons I have no option but to allow this petition and declare the impugned order passed by the learned Additional District Judge, Lahore to be of no legal consequence. Since nobody has appeared to contest this petition, there shall be no order as to costs.

M.Y.H./3322/L Petition allowed.