Briefly stated facts as those emerge out of this petition are that Abdul Latif-Respondent No, 1, hereinafter to be referred as the landlord filed eviction petition regarding Shop No, 122 against Qamar-ud-Din petitioner alleging therein that the shop in dispute was rented out to Fiaz-ud-Din Respondent No, 2/real brother of the petitioner, at the rate of Rs,6,000/- per month. The tenancy agreement was also reduced into writing. He sought eviction inter alia on the grounds of default in payment of rent, requirement for personal bona fide use and of subletting the same to the petitioner. The ejectment petition was resisted by the petitioner/respondent therein inter alia on the grounds that relationship of landlord and tenant did not exist between the parties and that he had purchased the premises in dispute from respondent Abdul Latif and had made entire payment of the shop. Fiaz-ud-din respondent was proceeded against ex-parte before the learned Rent Controller, however, during the course of proceedings on 13.04.2008, the petitioner and respondent/landlord agreed to the appointment of referee, to decide their dispute, whereupon the learned Rent Controller with the consent of the parties appointed one Shafique-ur-Rehman son of Jalil-ur-Rehman as referee. The parties also put their thumb impression on the order sheet. Before referee could submit his report/opinion, the petitioner moved an application before the learned Rent Controller on 30.05.2008 for cancellation of appointment of the referee. In the meantime the above said referee appeared before the learned Rent Controller on 6.8.2008 and submitted his report containing his opinion. The learned Rent Controller after hearing learned counsel for the parties proceeded to dismiss the application filed by the petitioner seeking cancellation of appointment of referee and allowed the eviction petition in the light of opinion of referee.
2. That aggrieved of the order passed by learned Rent Controller the petitioner preferred an appeal, which was dismissed by learned Additional District Judge, Shujabad vide judgment dated 29.9.2008.
3. Through this appeal, the appellant assails both the orders passed by learned Courts below.
4. It is inter alia contended by Mian Habib-ur-Rehman Ansari, Advocate learned counsel for the petitioner that in the disputed shop petitioner was running a joint business with his real brother, who was a tenant under the respondent and rent deed was also executed by him, therefore, relationship of landlord and tenant existed between the Respondents No, 1 & 2; that the respondent/landlord owed a sum of Rs,2,00,000/- to the petitioner and till the realization of that amount he could lawfully retain possession; Since he was not in possession of the shop as a tenant, therefore, no ejectment order could be passed against him; the procedure followed by learned Rent Controller for deciding ejectment petition is alien to law as he proceeded to decide the petition on the statement of referee instead of recording evidence; that the referee was not appointed with the consent of the parties and observation of learned Rent Controller to that effect are against record; that the referee exceeded the terms of reference, therefore, his opinion could not be mads basis for passing the impugned judgment. Learned counsel for the petitioner also refers to Article 33 of the Qanun-e-Shahadat Order, 1984 and Section 20 of the Evidence Act, 1872 to canvass that the referee is to perform limited functions and cannot travel beyond the scope thereof. In support of his contentions he relies upon following judgments NLR 1992 Civil 218 "Kashmira Vs. Mst. Makho", PLJ 1977 Lahore 1770 "Sher Zaman Vs. Noor Zaman and others" PLJ 1977 Lahore 1999 'Abid Hussain Vs. Rafique-u-Din and others" and 1990 SCM R 763 "Ghulam Fareed Khan Vs. Muhammad Hanif Khan". While concluding his arguments submits that material irregularities and serious illegalities have been committed by the learned Courts below in passing the impugned orders and prays that both the impugned orders be set aside and the case may be remanded to the learned trial Court for decision afresh on merits or in the alternative respondent/landlord be made liable to pay Rs,2,00,000/- only, received by him from the petitioner.
5. Conversely Mr. Muhammad Javaid Khan, Advocate, learned counsel for Respondent No, 1/landlord vehemently opposes this petition and submits that the respondent Abdul Latif admittedly is the landlord/owner of the disputed shop; the relationship of landlord and tenant existed between the parties; Admittedly the petitioner was a copartner in the business, run by both the brothers, in the disputed shop; the possession of the disputed shop was handed over by respondent Fiazud-Din to the petitioner with mala fide intention and for ulterior motive; the petitioner has not paid the rent for the last number of years and thus is a defaulter and that the default is also proved from the admission of the petitioner himself that he did not pay any rent to the land lord.
6. In rebuttal learned counsel for the petitioner submits with vehemence that the possession of the shop was handed over to the petitioner by the landlord himself after receiving a sum of Rs, 2,00,000/-from him.
7. This petition was admitted to regular hearing on 29.10.2005.
8. Arguments heard. Record perused.
9. The ownership of Respondent No, 1 qua disputed shop is not denied. It is also an admitted fact that the petitioner and his brother Respondent No, 2 had been running a joint business therein.
Almost all the points urged by the learned counsel for the petitioner have been dealt with by learned Rent Controller as well as the learned appellate Court.
10. Now adverting to the case law referred by learned counsel for the petitioner (NLR 1992 Civil 218)
"Kashmira Vs. Mst. Malkho" in this case the learned Advocate was appointed as referee who submitted a report in the Court after holding inquiry. This Court, therefore, set aside the order impugned therein, which was based upon not on the personal opinion of the referee, by observing that instead he acted as an arbitrator and that he was not required to issue notice to the parties nor could record evidence and that the referee, in that case mistakenly referred in his report that he was appointed as an arbitrator and that the said referee traveled beyond the scope of agreement between the parties.
(PLJ 1977 Lahore 1770) Sher Zaman vs. Noor Zaman & others, It was held that statement of referee in the circumstances could not be treated as statement under Section 20 of the Evidence Act 1872 rather it was an award and since it was accepted by the parties as an Arbitrator, the party agreeing to abide by his statement should have been allowed to resile from his claim.
(PLJ 1977 Lahore 199) Ali Hussain vs. Rafiquddin & others, This Court while dilating upon appointment and functions of referee observed that referee is a person who acts on his own knowledge and belief and not a person who is appointed to decide matters after enquiry and taking other evidence.
(1990 SCM R 763) Ghulam Farid Khan vs. Muhammad Hanif Khan, The Honourable Supreme Court while considering provisions of Sections 8 & 14 of Arbitration Act (X of 1940).read with Article 33 of Qanun-e-Shahadat order observed that:-- "By his "faisla" he not only divided the moveable properties left by the Nawab among his heirs he even awarded cash amounts to some of them by way of compensation on equitable considerations. He also directed the cancellation of certain mutations of inheritance which had already been effected in the Revenue Record. His "faisla" therefore could hardly be treated as a statement furnishing information. Quite clearly, he understood his rote as that of an arbitrator and proceeded accordingly, even though in keeping with the statement made by the parties, he described himself as a referee. In the circumstances, the contention of the learned counsel for the appellant that the "faisal" filed by Hafiz Nasrullah Khan was an admission within the meaning of Article 33, Qanun-e-Shahadat cannot be accepted, it was quite clearly an award and the High Court was right in holding that it could not be made rule of the Court without giving an opportunity to the parties, if they so desired, to file objections thereto."
For ready reference Article 33 of the Qanun-e-Shahadat Order, 1984 is reproduced hereunder: "Admission by persons expressly referred to by party to suit Statements made by persons to whom a party to the suit has expressly referred for information in reference to matter in dispute are admissions."
11. Perusal of afore stated provisions of law as well as the judgments referred to supra leave no doubt in my mind that referee is a person, who is invited to the aid of the parties to a suit and his personal opinion is sought, resolving the controversy and his appointment is always with the consent of the parties and he must not hold any inquiries nor is supposed to collect evidence and the judgment and decree in that particular suit has to be based upon his personal opinion, which amounts to admission by the parties to the suit and the same has binding effect.
12.The case was argued at quite some length by the learned, counsel for the petitioner. The first point urged by him is that the relationship of landlord and tenant never existed between the petitioner and Respondent No, 1/landlord and that he was in possession of the shop against payment of sum of Rs, 2,00,000/- and that till the time same is returned, he can lawfully retain possession thereof. This argument has no force and is also against the record. It is an admitted fact that the petitioner was a co-partner with his real brother i,e, .Respondent No, 2, whose tenancy is not disputed by the petitioner. In my view the co-partner in a joint business, being run on the rented premises is a tenant notwithstanding that agreement of tenancy is in the name of any one of them, and ejectment petition filed by landlord against co-partners on the strength of such agreement would be competent. The second part of this argument of learned counsel is also not born from the record. It is proved from the record that Respondent No, 2, real brother of the petitioner left the business and the petitioner continued to be in possession of the said shop thereafter and his possession is in continuation of the earlier joint possession of both the brothers i,e, the petitioner and Respondent No,
2. The petitioner has failed to bring on record any evidence in support of his contention that either he purchased the shop from Respondent No, 1/landlord or ever paid the alleged amount of Rs, 2,00,000/- to him. Therefore, this argument has no force. Even otherwise by now it is well settled proposition of law that if a tenant claims possession of the rented premises on the strength of agreement to sell etc. he has to first vacate the premises and hand over its possession to the landlord and thereafter can bring a suit on the strength of his agreement or sale deed etc. in a competent Court of law. Admittedly no suit even till date has been filed by the petitioner and if the arguments of the learned counsel for the petitioner are considered on this issue as a whole, still the stance of the landlord finds support there from that Respondent No, 2 sublet the property to the petitioner without any permission from the landlord. Viewed from whichever angle arguments of the learned counsel for the petitioner are devoid of any force.
Another legal point urged by the learned counsel for the petitioner that firstly the referee was not appointed with the consent of the parties and secondly he has traveled beyond his scope within the parameters of Article 33 of Qanun-e-Shahadat Order 1984, is also against the record. It is proved from the record that the applicant himself consented to the appointment of the referee, his thumb impression is also available on the interim order sheet which were put in presence of learned counsels for the parties. No objection has ever been raised by the petitioner at any stage that he did not consent to the appointment of the referee. No doubt application was also submitted by him showing no confidence on the referee, after a considerable time, after his appointment, on the ground that he was not conducting inquiries nor had recorded statement of the petitioner and his witnesses. Even in this application, the petitioner did not raise any objection qua his appointment. Instead he sought cancellation of his appointment which by itself is an admission of the fact from the petitioner that he did consent to the appointment of the referee. It also negates the argument of learned counsel for the petitioner that the referee traveled beyond his scope. As discussed in preceding paras the referee has just to give his personal opinion, which as per record he did and the learned trial Court committed no illegality or irregularity by passing the judgment and decree on the basis thereof. In-fact the learned Civil Court acted strictly in accordance with the law on the subject.
13. The afore stated facts leave no doubt in my mind that the petitioner is in possession of the shop as a tenant and is also a defaulter. I am convinced that the petitioner is delaying the matter on one pretext or the other without any justification. Provisions of law as well as case law referred to supra is also of no help to the petitioner rather it supports the case of the landlord. I am, therefore, not inclined to interfere in the impugned orders which are not only concurrent in nature besides are well reasoned and perfectly in accordance with law which are thus up-held. This petition being devoid of merits is, therefore, dismissed with costs throughout.