NAZIR AHMAD vs Mst. SARDAR BIBI and others

ORDER

' ALI HUSSAIN QAZILBASH, J.--This is a petition for leave to appeal from the judgment of a learned Single Judge of the Lahore High Court, dated 5-10-1988.

2. The facts relevant are that Mst.Sardar Bibi respondent sought the ejectment of the petitioner from the suit shop on 7-11-1982. The grounds for the ejectment taken were default in the payment of rent since November, 1979 and personal requirement for doing business through her daughter's son. The petition was resisted and both the grounds were refuted. The pleadings resulted in the framing of issues with regard to default in the payment of rent since November, 1979, the personal requirement of the respondent of the suit shop in good faith and also that the petitioner was a wilful defaulter.

3. The Rent Controller recorded the statement of the respondent in support of the ejectment petition and the evidence of the petitioner was to be recorded when the petitioner on 6-5-1984 moved an application bringing to the notice of the Rent Controller that two persons, namely, Mst.Zeenat Bibi and Farzana Zafar, were co-sharers in the suit shop and that they should be joined as parties to the ejectment petition. The respondent resisted this application, as a result of which the Rent Controller dismissed the same on 19-6-1984. The petitioner's revision against the said order was dismissed by the Additional District Judge, Kasur. The Rent Controller then started with the proceedings and in spite of the notice the petitioner failed to appear before the Rent Controller and thus an ex parte order of ejectment was passed against the petitioner on 4-9-1985. The petitioner then filed an appeal against the ex parte order of ejectment, and it was during the pendency of the appeal that the petitioner purchased the share of Mst.Zeenat Bibi to the extent of 49/288 through a registered sale-deed. The petitioner moved an application before the appellate Court to seek amendment in the grounds of appeal of his becoming a co-sharer in the suit property. The permission to amend the grounds of appeal was allowed but it is not clear whether amendment appeal was filed or not. On 10-11-1986 the petitioner filed yet another application before the appellate Court for impleading two other co-owners as parties to the appeal but this application was dismissed on 7-2-1987.

4. The learned Additional District Judge on hearing the appeal allowed the same on 29-3-1987 and remanded the case to the Rent Controller with the direction for marking exhibits on documents placed on the record and for re-deciding the case on the same record.

5. After the remand when the case was again taken up by the Rent Controller, the petitioner moved a fresh application praying that since he became a co-owner in the property, the ejectment petition was incompetent and was liable to be dismissed. This was again resisted by the respondent: The Rent Controller having turned down the plea of the petitioner of his becoming a co-owner in the suit property, passed ejectment order against him on 12-1-1988 on the grounds of default in the payment of rent and also on the issue of bona fide requirement of the suit shop by the respondent for personal need. The petitioner then filed an appeal before the Additional District Judge where the question of his becoming a co-owner in the suit shop was also raised but the learned appellate Court vide its judgment dated 3-5-1988 dismissed the same. The writ petition filed by the petitioner met the same fate vide the impugned order.

6. We have heard the learned counsel for the petitioner at considerable length and are of the view that as per the record the findings of the Courts below are unexceptionable. The learned counsel for the petitioner here before us admitted that the petitioner entered into the shop in dispute as a tenant under the respondent at a monthly rent of Rs.40 which was subsequently enhanced to Rs.60. He also admitted the execution of the rent deed. In view of Mis clear and categorical admission, the petitioner, notwithstanding the purchase by him of a certain share from the disputed property, could neither challenge the status of the respondent as landlady qua the suit property nor the existence of relationship of landlord and tenant between the parties. Therefore, under no circumstances the petition for ejectment of the petitioner could be said to be incompetent and the Courts below were justified in holding so. Since the evidence produced by the petitioner at the trial to rebut the grounds in the ejectment petition was insufficient, so it cannot be said that the Courts below have decided the case wrongly.

7. The contention of the learned counsel that the petitioner having become an owner in the suit property could not be proceeded against under the Rent Restriction Ordinance has no merits.

Admittedly the alleged sale transaction of a certain share in the suit property took place during the pendency of the ejectment proceedings. The Rent Controller who was exercising a limited jurisdiction under the Rent Restriction Ordinance could not adjudicate upon the ownership rights of the parties. The petitioner is, therefore, at liberty to seek his remedy in the Civil Court as observed by the learned Judge in his Chambers.

8. The petition is thus dismissed.