ISHRAT ULLAH KHAN Versus Haji ALI AKBAR
ORDER
The brief facts out of which the present second appeal arises are that the appellant is a tenant under the respondents since 1980 in mini shop under staircase situated at the corner of Property No.P‑134/D, Street No.5, Ward No.2 Kachery Bazar, Faisalabad. The respondents filed an ejectment petition against the appellant on the ground of default before the Rent Controller, Faisalabad in the year 1982. The rent was fixed Rs.86 P.M. During the pendency of the ejectment petition the compromise arrived between the parties and the rate of rent was enhanced to Rs.300 P. M. subject to the condition that the appellant would pay the rent to the respondents against valid receipts. The ejectment petition was disposed of. The appellant failed to pay rent to the respondents in terms of the compromise in the Court of Rent Controller. The respondents sent legal notice to the appellant on 10‑7‑1995 under section 5‑A of the Punjab Urban Rent Restriction Ordinance, 1959. The contents of the notice reveals that appellant was bound to increase the rent of the shop in dispute at the rate of 25% from 1‑7‑1989 and as such from 1‑7‑1989 to 1‑7‑1992 he should have enhanced the rate of rent to Rs.375 P.M., but he kept on paying Rs.300 P.M. and as such Rs.700 are outstanding against the appellant for the said period: The appellant‑has to deposit the increased rent at the rate of Rs.468.75 P.M. for the period from 1‑7‑1992 to 1‑7‑1995 but he 'failed to‑ do so and as such the sum of Rs.6,075 are outstanding against him for the said period. Thereafter, to onward `after 3 years from 1‑7-1995 to 1‑7‑1998 the appellant failed to deposit the increased rent. Therefore, the appellant committed default amounting to Rs.8,775. The appellant submitted reply, of the notice and took a stand that appellant had deposited the rent in the Court. The respondents being aggrieved filed ejectment petition before the Rent Controller, Faisalabad on 10‑10‑1996. The appellant filed written statement, controverted the allegations levelled in the ejectment petition. Out of the pleadings of the parties learned Rent Controller framed the following issues:‑‑
(1) Whether the respondent has defaulted the payment of rent to the petitioner in respect of the property in dispute? OPA
(2). Relief.
The ejectment petition was accepted by the learned Rent Controller vide order, dated 26‑11‑1997. The appellant being aggrieved filed appeal before , the Additional District Judge, Faisalabad who dismissed the same vide judgment dated 4‑5‑1999. Hence the appellant filed this appeal.
2. Learned council for the appellant submits that ejectment order was passed by the Rent Controller on 26-11-1997. The respondents filed executing petition before the Rent Controller who issued warrant for possession on 27-11-1997. He further submits that learned Rent Controller was erred in law to issue the warrant of possession against the appellant without issuing any notice to the appellant. He further submits that the appellant did not commit any default qua the rent as he deposited the same in the court of Rent Controller; Both the courts below have decided the case by misreading and non-reading of the record. He further urges that Rent Controller issued the warrant of possession without issuing notice to the appellant therefore impugned judgments are not sustainable in the eyes of law. Learned counsel of the respondents submits that appellants filed appeal against the order of the Rent Controller passed by him in execution petition before the Additional District Judge. The number of the appeal was 84/97 which was also dismissed by the Additional District Judge vide judgment dated 10‑12‑1997. The appellant did not file any appeal against the said order. He further submits that both the Courts below gassed the order in accordance with law laid down by the superior Courts as the appellant failed to deposit the increased rent in the Court of Rent Controller in view of section 5‑A of the. Punjab Urban Rent Restriction Ordinance, 1959. In support of his contention he relied upon Haji Muhammad Ibrahim w. Haji Abdul Salam Bhatti (PLD 1996 Lahore 308). He further submits that appeal has become infructuous as the appellant did not file any appeal against the judgment and decree of the Additional District Judge passed by him in .the side of execution proceedings. He further submits that appellant did not attach the complete statement of R.W.1 who admitted that he did not deposit the increased rent in terms of section 5(A) of the Rent Restriction Ordinance. Therefore, appellant approached this Court with unclean hands and the appeal is liable to be dismissed.
3. I have given my anxious consideration to the contentions of the learned counsel for the parties and perused the record myself.
4. It is better and appropriate to reproduce the basic facts emerged out of the pleadings of the parties and evidence to resolve the controversy between the parties:‑‑
(i) Property in question is non‑residential.
(ii) The appellant occupied the property in question as tenant in the year 1960.
(iii) Rate of the rent was initially fixed Rs.86 per month.
(iv) The landlord filed ejectment petition against the appellant in the year 1982 on the ground of default in payment of rent.
(v) The matter was patched up between the parties and ejectment petition was disposed of in view of the compromise arrived between the parties to the following effect:
"Rent was enhanced from Rs.86 to Rs.300 P.M. subject to the condition that appellant will pay the rent to the respondent against a valid receipt."
(vi) The appellant did not pay the rent directly to the respondents and deposited the same in the Court of Rent controller in the absence of any order passed, by the Rent Controller.
(vii) The respondent landlord sent a legal notice to the appellant under section 5‑A of the Punjab Urban Rent Restriction Ordinance, 1959, on 10‑7‑1995.
(viii) The appellant sent reply to the landlord and stated that the rent has been paid in the Court.
(ix) The landlord filed ejectment petition before Rent Controller on 10‑10‑1996.
(x) Both the Courts below had given concurrent findings of fact against the appellant to the extent that appellant did not deposit the increased rent of shop in question at the rate of 25 % from 1‑7‑1989 till filing of ejectment petition, In terms of section 50‑A above.
It is better and appropriate to reproduce relevant portion of the examination‑in‑chief of A.W.1 Ali Akbar landlord/respondent and cross examination of R.W.1 Ishrat Ali Khan tenant/appellant:‑‑
I have reappraised the evidence on record and I am of the view that appellant did not pay the rent to the respondents/landlords in terms of the compromise arrived between the appellant and respondents in the earlier round of litigation coupled with the fact that the appellant did not pay the increased rent in view of section 5‑A of the Punjab Urban Rent Restriction Ordinance, 1959 since 1989 despite receiving legal notice dated 10‑5‑1995 till filing the ejectment petition by the respondent landlords before the Rent Controller on 10‑10‑1996. The property in question is non‑residential therefore, the rent automatically increased after 3 years in view of section 5‑A of the Punjab Urban Rent Restriction Ordinance, 1959, In arriving to this conclusion, I am fortified by the following judgments:‑‑ .
Haji Muhammad Ibrahim v. Haji Abdul Salam Bhatti (PLD 1996 Lahore 308); Utility Stores Corporation v. Abdul Mahmood Khan (2000 CLC 1306); Abdul Aleem Ansari v. Mst. Zubaida Shaheen (2000 CLC 1873); Javed Iqbal v. S.M. Khurram Wasti, Advocate (2000 CLC 126) and Pakistan State Oil v. Begum Rehana Sarwar. (2000 CLC 506).
It is settled principle of law that interference in the concurrent finding of fact can be made by the High Court only when the evidence is misread and finding is based on surmises and conjectures or based on inadmissible evidence or there existed any error or defect in the procedure which may possibly have introduced an error or defect in the decision on merits. The learned counsel of the appellant failed to point out any piece of evidence which was misread or non‑read by the Courts below. Similarly appellant's counsel failed to point out any principle which was violated or not followed by the Tribunals below. In arriving to this conclusion, I am fortified by the law laid down by the Honourable Supreme Court in Musarrat Sultana v. Muhammad Saeed (1997 SCMR 1866). It is also admitted fact that possession of shop in question had already been taken by the respondents‑landlords by process of law by filing an execution petition before the Rent Controller. The appellant being aggrieved by the order of the executing Court filed an appeal before the Additional District Judge which was dismissed. The appellant did not file any appeal against the judgment and decree of the First Appellate Court passed in execution proceedings.
In view of what has been discussed above this appeal has no merits and the .same is dismissed.
H.B.T./I‑140/L Appeal dismissed.