ABDUL HAFIZ KHAN vs MUHAMMAD ANWAR and others

' This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 arises out of an application under Section 13 of the Punjab Urban Rent Restriction Ordinance, 1959 filed by the petitioner wherein it was alleged that respondents No,1 and 2 were in possession of part of property bearing No,3340/3 Mohallah Saeed Abad, Khushab as tenants under him and were liable to be ejected for the reason that they had failed to pay the rent due and were defaulter and further that they had caused damage to the property which has resulted in depreciation of its value and utility.

It was also alleged that the premises in question were required by the petitioner for his own use.

2. In the written statement filed by respondents Nos.1 and 2 they denied the relationship of landlord and tenant between the parties and pleaded that they were in possession of the property bearing No,3340/4 and not 3340/3 as alleged by the petitioner. The Rent Controller after framing the preliminary issue as to the existence of relationship of landlord and tenant, recorded the evidence of the parties and by means of the order dated 15th of January, 1983 held that respondents Nos.1 and 2 were tenants under the petitioner and proceeded to direct their eviction.

3. Aggrieved by this order respondents 1 and 2 filed an appeal which was accepted by the Addl.

District Judge at Khushab who reversed the findings of the Rent Controller on the issue and held that the petitioner, was not the landlord and respondents Nos.1 and 2 not his tenants. He observed that the evidence produced by the petitioner was insufficient to show that the property in possession of respondents Nos.1 and 2 was No,3304/3. This constitutional petition is directed against this judgment of the Addl. District Judge.

4. Mr. Ghulam Sabir Kaifi, the learned counsel for the petitioner submits that while reversing the finding of the Rent Controller the Addl. District Judge has misread the record and has failed to consider material evidence and therefore, his judgment is vitiated. It was explained by the learned counsel that the petitioner had earlier filed a suit for possession which was dismissed on the ground that since the petitioner was claiming to be the landlord, the suit was barred by the provisions of Punjab Urban Rent Restriction Ordinance, 1959.

5. Raja Muhammad Akhtar Khan, the learned counsel for the contesting respondents however maintains that the findings of fact recorded by the Addl. District Judge which is the final Court of appeal are not liable to be interfered with by this Court in the exercise of its constitutional jurisdiction as it is not called upon to reappraise the evidence. The learned counsel submitted that the petitioner had failed to prove beyond any reasonable doubt, that he was the owner of the premises in possession of respondents Nos.1 and 2 and, therefore, he should have established his title before the Civil Court and could not file an ejectment petition as ruled by the Supreme Court in Rahmat Ullah's case (1983 SCM R 1064).

6. After having heard the learned counsel for the parties and perused the record I am of the view that in the circumstances of the case the remedy of the petitioner lies in obtaining a declaration about his title to the property in possession of the petitioner from the civil Court. The real dispute between the parties is as regards the identity of the property transferred to the predecessor- ininterest of the petitioner. On the present record it is difficult to resolve this issue satisfactorily beyond any reasonable doubt. As the petitioner claims to be a landlord on the basis of his title to the property, which is not free from doubt in the circumstances of the case, respectfully following the ratio in Rahmat Ullah's case (supra) I would dismiss this petition and direct the petitioner to establish his title before the civil Court before seeking his remedy before the Rent Controller.

7. The learned counsel for the respondents however, submits that the civil suit filed by the petitioner has already been dismissed. It however, appears that the suit was dismissed as the plaintiff himself had pleaded in the plaint that the respondents were tenants under him. At the time that suit was instituted no permission had been obtained by the petitioner for filing such a suit either from the Rent Controller or any of the higher forums. The apprehension of the petitioner that the suit filed by the petitioner would be barred is misconceived in view of the permission which is being granted by this Court to the petitioner to approach the Civil Court.

' As a result of what has been stated above this petition is dismissed subject to the above observation leaving the parties to bear their own costs.