' MUHAMMAD NAWAZ ABBASI, J.---This review petition under Article 188 of the Constitution of Islamic Republic of Pakistan, 1973 has been preferred seeking review of the judgment dated 9-4-2002 passed by this Court in Civil Appeal No,640 of 1995.
2. The dispute in the appeal related to allotment of evacuee agricultural land with the house constructed on it, under Displaced Persons (Land Settlement) Act, 1958. This Court having considered all aspects of the matter, concluded that neither the house was independent property to that of the agricultural land nor the Deputy Administrator and Administrator (RP) were competent to re-open the matter in exercise of their power under the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975.
3. Learned counsel for the petitioner has contended that the original order dated 15-11-1961 relating to the allotment of land with house, passed by the Additional Commissioner (Settlement) as incorporated in the RL-II, was not produced during the proceedings before the Deputy Administrator and Administrator (RP), therefore, a presumption would be raised regarding the non- existence of the said order. The second contention raised by the learned counsel relates to the character of property. It is argued that the house in question was neither a part of agricultural land allotted to the petitioner nor it was ever treatedby the Settlement Authorities as such and that it was an independent property.
4. We are afraid the above grounds urged by the learned counsel in support of this review petition having been considered at length in the judgment, were found without any substance. Learned counsel without pointing out any patent error on the face of record in the judgment, made an attempt to re-open the matter and re-argue the grounds already taken in appeal and discussed in detail in the judgment.
5. This review petition having no force is accordingly, dismissed.
2004' SCMR 415 [Supreme Court of Pakistan] Present: Mian Muhammad Ajmal and Muhammad Nawaz Abbasi, JJ MUHAMMAD SULEMAN---Petitioner versus ABDUL SATTAR ---Respondent Civil Petition No,3380-L of 2002, decided on 23rd September, 2002.
(On appeal from the judgment of Lahore High Court, Lahore, dated 22-8-2002 passed in First Appeal from Order No,184 of 2001).
(a) Cantonments Rent Restriction Act (XI of 1963)--- ----S.24---Constitution of Pakistan (1973), Art 185(3)---Appeal--Maintainability---Failure to implead necessary parties---Plea of subletting of premises was raised by landlord---Rent Controller allowed ejectment application and eviction order was passed against tenants--- Original tenant did not file any appeal against the eviction order but the petitioner who was occupant of the premises filed the appeal---High Court dismissed the appeal on the ground of non-impleading of the original tenant in the appeal---Contention of the petitioner was that he was in possession of the premises as tenant in his own right, therefore, defect of non-impleading of original tenant in appeal would not render same incompetent---Validity---Original tenant was necessary party, therefore, failure to implead him was fatal to the appeal---Premises was rented out to original tenant and the tenancy continued in his name without any change till the filing of ejectment petition by the landlord---In absence of any proof of delivery of possession of premises to the petitioner by original tenant with the permission of landlord or acknowledgement of the status of the petitioner as tenant of the premises the petitioner would be deemed to be in occupation of premises through original tenant and would have no independent right to retain the possession and resist the ejectment---Supreme Court declined to interfere with the judgment passed by High Court---Leave to appeal was refused. [p. 417] A & B
(b) Cantonments Rent Restriction Act (XI of 1963)--- ----S.17 (2) (II) (a)---Ejectment of tenant---Subletting of premises---Right of occupant of premises---Principle---In absence of any proof of delivery of possession of premises to occupant by original tenant with the permission of landlord or acknowledgement of the status of the occupant as tenant of the premises, the occupant would be deemed to be in occupation of premises through original tenant and would have no indenendent right to retain the possession and resist the ejectment petition. [p 4171 B Ch. Ehsan Sabri, Advocate Supreme Court and Tanvir Ahmed, Advocate-on-Record for Petitioner.
Nemo for Respondent.
Date of hearing: 23rd September, 2002.
' MUHAMMAD NAWAZ ABBAS', J.---This petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973 has been filed seeking leave to appeal against the judgment dated 22- 8-2002 passed by a learned Single Judge of the Lahore High Court in an appeal arising out of an ejectment petition.
2. The relevant facts in small compass are that Abdul Sattar,respondent herein the landlord of the shop rented out by him to Muhammad Iqbal, filed an application under section 17 of the Cantonments Rent Restriction Act, 1963 against said Muhammad Iqbal and his brother namely Jamal and present petitioner, who were jointly running the business in the shop on the grounds of personal need, reconstruction and subletting. The landlord pleaded in the ejectment application that present petitioner and Jamal were not party to the agreement of tenancy and they were in occupation of shop as sub-tenant without his permission. In the written reply jointly submitted by the petitioner and the said Muhammad Iqbal and Jamal it was pleaded that the premises were in occupation of the petitioner as tenant who spent considerable amount on the improvement of shop and that neitherMuhammad Iqbal was tenant of the premises nor die same were required by the landlord for personal need and re-construction. In view of the pleadings of the parties, a preliminary issue relating to existence of relationship of landlord and tenant between the parties was framed by the Additional Rent Controller and he having discussed the issue in the light of the evidence, held that the petitioner was not in possession of shop in his independent right as Muhammad Iqbal was the tenant of premises and consequently vide order dated 24-5-2001 allowed the ejectment petition. The appeal filed by the petitioner against the order of ejectment in the High Court was dismissed through the impugned judgment.
3. The appeal was filed by the petitioner without impleading Muhammad Iqbal, the tenant of the premises as party who had not filed a separate appeal, therefore, the learned Judge in the High Court observed that appeal was not properly constituted. The learned counsel for the petitioner has contended that the petitioner was in possession of the premises as tenant in his own right, therefore, the defect of no impleading the two respondents in the ejectment petition as party in the appeal would not render the same incompetent, We having attended the proposition fully agree with the view taken by the learned Judge in the High Court that Muhammad lqbal and Muhammad Jamal were necessary party therefore, their non-impleadment was fatal to the appeal. The examination of the case on merits would also show that no exception can be taken to the above view as no evidence oral or documentary was brought on record by the petitioner in proof of his tenancy.
4. The contention of the learned counsel for the petitioner that landlord having received the rent regularly from the petitioner has acknowledged his status as tenant, has no substance as there was no material on record in support thereof except the bare statement of the petitioner. The admitted position is that the premises were rented out to Muhammad lqbal and the tenancy continued in his name without any change till the filing of ejectment petition by the landlord and in absence of any proof of delivery of the possession of premises to the petitioner by Muhammad lqbal with the permission of landlord or the acknowledgment of the status of the petitioner as tenant of the premises, the petitioner would be deemed to be in occupation of premises through Muhammad Iqbal and would have no independent right to retain the possession and resist the ejectment.
6. For the foregoing reasons, this petition having no substance isdismissed and leave is refused.