SECRETARV TO THE GOVERNMENT OF PUNJAB, EDUCATION DEPARTMENT, CIVIL SECRETARIAT. LAHORE Versus ADDITIONALDISTRICT AND SESSIONS JUDGE, LAHORE

ORDER

SAAD SAOOD JAN, J. ‑‑This is a petition for special leave to appeal from the order dated 30‑9‑1987 of the Lahore High Court whereby in constitutional jurisdiction it declined to interfere with the order of ejectment made by the Additional District Judge, Lahore under the provision of the Punjab Urban Rent Restriction Ordinance.

2. The property in dispute is a house situate in Rahmanpura, Ichhra, Lahore. It was owned by respondent No.2 and was being used for running a private school. After the nationalization of the schools under Martial Law Regulation No.118 the management of the school, including the possession of the house in dispute, was taken over by the Education Department of the Provincial Government. Subsequently, by an order dated 30‑7‑1977, the house was requisitioned by the Provincial Government under the West Pakistan Requisitioning of the Immovable Property (Temporary Powers) Act. .

3. On 11‑2‑1980 responder No.2 filed an application before the Rent Controller under section 13, Urban Rent Restriction Ordinance, to seek eviction of the petitioners. The petitioners objected to the maintainability of the application on the ground that the house stood requisitioned. The learned Rent Controller upheld the objection and dismissed the application. Respondent No.2 filed an appeal before the Additional District Judge. By an order dated 10‑5‑1981, the Additional District Judge accepted the appeal, holding that in view of the decision of the High Court in Muhammad Tufail v. Province of Punjab etc. PLD 1978 Lahore 87, the order of requisition was bad in law. He then remanded the case to the Rent Controller for its disposal in accordance with law. The petitioners challenged the legality of the order of the learned Additional District Judge in writ jurisdiction in the High Court but without any success (W.P.No.4764 of 1981).

4. After the dismissal of the petitioners' constitutional petition, the Rent Controller started the proceedings afresh in compliance with the order of remand made by the Additional District Judge. On 13‑6‑1982, he made an order under section 13(6) of the Punjab Urban Rent Restriction Ordinance, calling upon the petitioners to deposit the future rent before the fifteenth of each succeeding month. He also framed the following issues incorporating the grounds upon which respondent No.2 had sought eviction of the petitioners:

(1) Whether the petitioners have not paid and tendered the monthly rent of the disputed premises?

(2) Whether the petitioners have materially impaired and damaged the value and utility of the disputed premises?

(3) Whether respondent No.2 wants to re‑construct the disputed premises in good faith?

(3‑A) What is the actual rate of monthly rent of the premises in dispute?

(4) Relief.

Respondent No.2 did not press issue No.3 and led no evidence in respect of issue No.2. After considering the evidence of the parties on the other two issues, the learned Rent Controller held that the rent of the disputed premises was Rs.200 per month and that the petitioners had never wilfully defaulted in payment of the rent; accordingly, he dismissed the application.

5. From the order of the learned Rent Controller respondent No.2 filed an appeal before the Additional District Judge. The learned Additional District Judge found that the petitioners had not deposited the rent for the months of January and February, 1980 before the fifteenth of the succeeding months. On the basis of this finding, he accepted the appeal and directed the ejectment of the petitioners. The petitioners challenged the order of eviction in constitutional jurisdiction before the High Court but failed. They now seek leave to appeal from this Court.

6. In support of this petition it is contended that the finding of the learned Additional District Judge on the question of default was based on no evidence and for that reason the order of eviction was illegal. It is argued that there was no agreement between the parties fixing the date by which the rent was to be paid; that being so, under section 13(2)(i), Urban Rent Restriction Ordinance, the rent could be paid within 60 days from the period for which it was payable. In this case, the rent for the months of January and February was paid to respondent No.2 well before the expiry of 60 days.

7. The contention raised on behalf of the petitioners needs examination. Leave to appeal is granted. Let the appeal be listed for hearing in the next week. In the meanwhile status quo with regard to possession to be maintained.

M. I./S‑134/S Leave granted.