JAVED IQBAL BUTT vs Sheikh FIYAZ ALI by L.Rs,

ORDER

' The respondents, brought an ejectment application against the appellant, from the shop bearing No,37/1, Store Market, Model Town Cooperative Society, Lahore, on the grounds of default and personal need. The shop in question belongs to Model Town Cooperative Society, and was rented out to one Sh. Fiyaz Ali, predecessor-in-interest of the respondents, who undisputedly inducted the appellant in possession of the shop as a tenant on the payment of rent. He thereafter, brought the ejectment application on the grounds mentioned therein, but has died during the pendency thereof, and the present respondents have succeeded him in the case.

2. Anyhow, in reply to the ejectment application the appellant in preliminary objection No,1 has though evasively denied the relationship of tenancy, however, strangely in paragraph 3 on merits, took up the position that the rent was tendered to Sh. Fiyaz Ali, who refused and thereafter, the appellant started depositing the same in the Court. The learned Rent Controller, vide order dated 23-7-2001, directed the appellant to make deposit of the arrears as also the future rent in terms of section 13(6) of the Punjab Urban Rent Restriction Ordinance, admittedly, this order was not complied with, resultantly, the defence of the appellant was struck off, vide order dated 21-7-2003; this order was challenged by the appellant in appeal, but without any success.

3. Learned counsel for the appellant contends that the appellant was never a tenant of Sh. Fiyaz Ali, for the reason that the property is owned by the Model Town Cooperative Society, Lahore, and under the rules, such premises could not be sublet by Sh. Fiyaz Ali; it is only as per the agreement between Sh. Fiyaz Ali and the appellant, under a licensing agreement, the appellant used to deposit the rent of the premises in favour of the Model Town Society and occupied the premises as a licensee of Fiyaz Ali, thus, no tenancy, in law ever came into existence. It is further argued that, Mst.

Farkhanda Atnanullah, who was the general attorney of Sh. Fiyaz Ali, had received .An amount of Rs,1,50,000 from the appellant on 14-5-1997, through an agreement, and this amount was a security for the payment of the rent etc., resultantly, such could be adjusted towards the alleged non- payment of rent therefore, no default. Can be imputed to the appellant, he has also submitted that, Mst. Farkhanda, after the death of Sh. Fiyaz Ali, fraudulently on the basis of the earlier power of attorney, has got her daughter Dur-e-Sadaf entered in the record of the Model Town Cooperative Society in place of Sh. Fiyaz Ali, therefore, on this account as well, the relationship of the present appellant with Sh. Fiyaz Ali or his successors has extinguished. It is lastly submitted that, the ejectment application though originally was filed by Sh. Fiyaz Ali, but subsequently it could not be validly continued by his successors Mazhar Fiyaz Sheikh and Azhar Fiyaz Sheikh, the respondents, for the reason that they had never given any valid authority to Mst. Farkhanda, to act on their behalf as their attorney. Because they admittedly, are residing in U.S.A. And the power of attorney appended alongwith the ejectment petition, is not attested by the Pakistan Consultant in U.S.A. As required under the Qanun-e-Shahadat Order, 1984, moreover, it is witnessed at Lahore, which visibly means that it is a fraudulent and forged document, having never been executed abroad.

4. I have heard the learned counsel for the parties though in preliminary objection No,1, evasively the appellant had denied the relationship of tenancy, but at the same time in paragraph 3 on merits, has stated that he had been paying the rent to Sh. Fiyaz Ali, the respondents' father, who refused to receive the same and thereafter in his name the rent was deposited with the Government Treasury, under the permission of the Court. Besides, in the memo. Of first appeal, the appellant has clearly conceded that, he was inducted in possession of the property as a tenant by Sh. Fiyaz Ali, however, his defence was that the property could not be sublet to him, because Sh.

Fiyaz Ali himself was a tenant under the Model Town Society, and there was no permission of the Society to create a sub-tenancy. Obviously, this plea is inconsistent with the reply to the ejectment application. Moreover, is a matter between Fiyaz Ali and the Society, but on this account the appellant could not deny the relationship of the tenancy.

5. It is on the basis of the important admission made by the appellant in reply to the ejectment application, as mentioned above, and the evasive denial of tenancy that, the Court directed him to make deposit of the arrears as also the future rent, in terms of section 13(6) of the Punjab Urban Rent Restriction Ordinance. Under the law, the appellant could not disobey and non-comply the order, on the ground that he had paid some money to Mst. Farkhanda Amanullah, as an attorney of Sh. Fiyaz Ali, because this payment is not admitted by the respondents and was an issue which could be resolved after the evidence. Thus, it was incumbent upon the appellant, to have first complied with the order under section 13(6) and then to prove his defence about the payment of Rs,1,50,000 to Mst. Farkhanda Amanullah as security for and on behalf of Sh.. Fiyaz Ali and its effect.

But of his own could not refuse to comply the order on the above pretext.

6. As regards the other two pleas that, the power of attorney in favour of Mst. Farkhanda Amanullah on behalf of Mazhar Fiyaz Sheikh and Azhar Fiyaz Sheikh, is forged and fake, and that Mst.

Farkhanda has got the property transferred in favour of her daughter Dur-e-Sadaf and the tenancy on account of this between the appellant and Sh. Fiyaz Ali, stood extinguished, suffice it to say that these pleas are not raised in the written statement; it is settled law that, a plea not mentioned in the pleadings cannot be considered by the Court.

7. In the light of above, I do not find that any error has been made by the two forums below, in passing eviction order against the appellant. No case for interference in the second appeal is called for. However, enabling the appellant, to shift his business to some other premises, he is granted two months time from today to vacate and hand over the vacant possession to the respondents. This appeal having no merit is hereby dismissed.