' KH. IMTIAZ AHMAD, J.--- This S.A.O is directed against the order dated 18-12-2009 passed by the learned Rent Controller, Multan whereby he accepted the ejectment petition and against the order dated 2-2-2011 passed by the learned Addl. District Judge, Multan whereby the appeal was dismissed.
2. The learned counsel for the appellant contended that as far as the question of default is concerned, the default was alleged from September, 2004 but absolutely there was no evidence by the landlord that the appellant had defaulted in the payment of rent from September, 2004. Further contended that the order dated 9-1-2007 passed by the learned Rent Controller clearly shows that the appellant had paid the rent till October, 2006 and so he was directed to deposit the rent at the rate of Rs,13,000 per month, from November, 2006 till the date of the order and at the same rent in future till the final decision of the petition with enhancement of 25 % per three yeaRs, Further contended that both the courts below had even not taken into consideration the receipts which were produced as Exh.R-1 to R-20 showing therein that there was nothing due and so both the courts below had committed illegality by declaring the appellant to be defaulter. Further contended that as far as subletting of the demised property is concerned, no specific issue was framed by the learned Rent Controller in this behalf and so the appellant has been prejudiced and thus both the courts below committed illegality. Further contended that the report of FSL is also available on the record.
3. Arguments heard. Record perused.
4. In order to appreciate the contentions raised by the learned counsel for the appellant, it is appropriate to go through the pleadings and the evidence produced by both the parties.
5. The petition for ejectment was moved under section 13 of the Rent Restriction Ordinance, 1959.
The claim of the landlord was that the property in dispute was leased out through registered document dated 3-3-1994 to the respondents and the main conditions which were necessary for the disposal of the petition were that the rent from March, 1994 to March, 2003 was fixed at the rate of Rs, 10,000. Per month; for the next 10 years, the rent would be at the rate of Rs,18,000 per month; that the respondents would be liable to pay the rent regularly and without issuance of receipts, the payment of rent would not be considered as to be paid; that the respondents would not be authorized to use the property except for the purpose for which it was leased and that it was leased out for establishing the petrol pump and so the respondents started their business in the name of Hameed & Sons and keep on paying the rent for the first 10 years but thereafter, the Pakistan State Oil Company revoked the license on 22-1-2011 and so the respondents instead of selling the petrol sublet the property to one property dealer in September, 2004 who started his business as Multan Property Marketing and thereafter gave another portion of the land for keeping the cattle and for the wheat season, the remaining vacant side is sublet by the respondents. It was further alleged that from September, 2004, the rent at the rate of Rs,13,000 per month was not paid.
The petition was resisted by the respondents. Out of the pleadings of the parties, the learned Rent Controller framed the following issues:---
(1) Whether the applicant is in need of the rented premised bonafidely, for his personal use? OPA
(2) Whether the respondent has committed default in payment of rent, if so for what period? OPA
(3) Whether the respondent has damaged the rented premises? OPA.
(4) Whether the applicant is entitled to relief as prayed for? OPA.
(5) Whether the applicant has no cause of action to file this application? OPR.
(6) Whether this application is premature? OPR.
(7) Relief.
' The parties produced their evidence and after hearing the parties, the learned trial Court decided Issues Nos.1 and 3 against the petitioner while decided Issue No,4 in favour of the petitioner and on the basis of its findings on Issue No,4, decided Issue No,2 also in favour of the petitioner. Issues Nos.5 and 6 were decided against the respondents and resultantly vide order dated 18-12-2000 accepted the ejectment petition and the appeal was also dismissed by the learned Addl. District Judge, Multan vide order dated 2-2-2011.
6. As far as, the question of default is concerned, it is denied that in the order dated 9-1-2007, the learned Rent Controller while passing the order for the deposit of rent had specifically observed that the rent has been paid till October, 2006 but directed him to deposit the rent at the rate of Rs,13,000 per month from November, 2006 till 9-1-2007 amounting to Rs,39,000. This order itself shows that at least from November, 2006 to 9-1-2007, when the order was passed, the appellant had defaulted in the payment of the rent. The learned Rent Controller while discussing this aspect of the case and while giving findings on Issue No,4, observed that the tenant admitted in the cross- examination that several months prior to the filing of the instant application, he has been paying the rent to the applicant through money orders but he has not produced any receipt of said money order which fact clearly reveals that the respondents also became defaulter almost 4 to 5 months prior to the filing of the instant application. It may be mentioned here that the date of institution of the petition was 20-9-2006. In order to see that whether the said rent has been paid, the learned counsel for the appellant has placed reliance upon the receipts Exhs.R-6 to Exh.R-20. However, the statement of Muhammad Riaz AW-3 who is one of the petitioners shows that he was not confronted with the said receipts that these were issued by the petitioner. On the other hand, the respondent Abdul Hameed as RW-1 deposed that when the petitioner refused to receive the rent, then he sent the rent through money orders but he failed to produce any receipt of money order.
Further deposed in the cross-examination that in the year, 2006, he sent the rent through money orders but deposed that he was mot in possession of any such receipt. In this way, there is absolutely no illegality in the impugned orders of both the Courts below. As far as non-framing of issues with regard to sublet is concerned, the record shows that the special plea was taken by the petitioner in this behalf in the petition which was denied by the respondent and both the parties in this behalf had led the evidence. The evidence of the petitioner in this behalf is available on the record, which consist of the statement of AW-1 who was photographer and took the photographs of the site which shows that it was sublet by the respondents. The respondent in his statement as RW-1 admitted that his petrol pump was sealed by the competent authorities. He also denied that he had sublet the property to a property dealer or for keeping the cattle. In this way, when the parties were aware of the controversy and led evidence accordingly, then mere non-framing of specific issue in this behalf is not material and even otherwise, the general Issue No,4 was framed by the learned Rent Controller which reads as under:- "Whether the applicant is entitled to relief as prayed for? OPA."
6. In section 15 of the Urban Rent Restriction Ordinance, 1959, the right of second appeal has been provided but its explanation shows that an appeal under this subsection i.e. Subsection (6) of section 15 shall be heard and determined as an appeal from an appellate order under section 100 of the Code of Civil Procedure, 1908 and the provisions of Part VI of the First Schedule to the said Code relating to appeal shall, with such modifications as the context may require, apply to such proceedings. Section 100 of the Civil Procedure Code, provides the right of second appeal on three grounds. The first is that the decision being contrary to law or usages having the force or law, the second is the decision having failed to determine some material issue of law or usage having the force of law and the 3rd is that a substantial error or defect in the procedure provided by this Code or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits. After going through the record, no such right is available to the appellant.
7. For the foregoing reasons, this appeal has no force and the same stands dismissed in limine.