MUHAMMAD ISMAIL vs Mian MUHAMMAD AMAULLAH
This matter arises from an ejectment petition filed by the respondent against the petitioner for default in rent payments regarding a building site in Lyallpur. The Rent Controller dismissed the application, but the District Judge reversed the decision on appeal, finding a default of four consecutive months and ordering ejectment. The High Court dismissed the subsequent second appeal, holding that the factual finding of default was unchallengeable under section 101, C.P.C. Upon a petition for leave to appeal before the Supreme Court, the petitioner contended that the appellate authority failed to properly exercise its discretion by not considering the substantial investment made in erecting a building on the land. The Supreme Court held that while the expense of raising the structure is a circumstance that may be considered by the rent authorities, an ejectment order in such cases can only be executed by delivering symbolic possession of the site, leaving the landlord to pursue further legal remedies in a civil court for the removal of structures. The petition for leave to appeal was accordingly dismissed.
- Whether a finding of default in rent by the first appellate court can be challenged in a second appeal?
- Can the expense incurred by a tenant in erecting a building on leased land be considered by rent authorities when ordering ejectment?
- How is an order of ejectment executed when a tenant has raised a structure on the leased site?
- Section 101, Code of Civil Procedure 1908
- Section 13, Rent Restriction Ordinance
ORDER
1. MUHAMMAD YAQUB ALI, J.-The respondent moved an application for ejectment of the petitioner from a building site situated in Lyallpur on the ground of default in payment of rent for four months.
2. The Rent Controller found that the petitioner had made an oral tender of rent which was declined by the respondent and dismissed the application.
3. On appeal by the respondent the District Judge came to the contrary conclusion and held that there was no oral tender of rent by the petitioner and in view of default for four consecutive months, he allowed the application and ordered ejectment of the petitioner. A second appeal preferred by the petitioner was dismissed by the High Court on the ground that the finding by the First Appellate Court that there was default in payment for four months was not open to challenge under section 101, C. P. C.
4. The petitioner now seeks leave to appeal inter alia on the ground that in the circumstances of the case the discretion vested in the District Judge under section 13 of the Rent Restriction Ordinance as appellate authority was not properly exercised. It was contended that the petitioner has erected a building on the leased land at a cost of Rs. One lac which circumstance has not been given due weight in ordering ejectment.
5. Mr. Sharif Baqir appearing for the respondent maintained that as the petitioner could not be directed to remove the structure of the building in the proceedings under the Rent Restriction Ordinance, the expense incurred by him on the raising of the structure, if any, was not a relevant factor in ordering ejectment under section 13. The argument so far as it goes is correct. Only a civil Court can, in appropriate proceedings, pass a decree for removal of the structure raised by a tenant, but it does not mean that the Rent Controller or the District Judge as appellate authority was precluded from taking this circumstance into consideration while deciding to direct ejectment of the petitioner. However, it follows that the order for ejectment passed by the District Judge can be executed only by delivery of symbolic posses--sion of the site to the respondent and thereafter he will have to pursue such further legal remedy as may be available to him in law. In this view we do not consider it a fit case for interfering with the order of the High Court.
6. The petition for leave to appeal is dismissed.