MUJAHID MUSTAQEEM AHMED, J: By this constitutional petition, the petitioners have assailed the impugned orders dated 24.04.2013 and 29.10.2013, passed by learned Special Judge (Rent) Rent Tribunal, Bahawalpur and learned Additional District Judge, Bahawalpur respectively, by which ejectment petition filed by respondents/landlord stood allowed.
2. It is second round of litigatior , in ejectment petition regarding a shop situated at `Addah Pul Noor Pur Noranga, Bahawalpur , filed by Muhammad Latif and Khalid Mehrnood Arain-respondents No.3 & 4, under The Punjab Rented Premises Act, 2009, against the petitioner/tenant Saif-ur-Rehman and and Muhammad Naeem (respondent No.5 before this Court). The grounds of ejectment taken in ejectment petition are non- payment of rent since 15.05.2007, partial subletting of shop by Saif-ur-Rehman to Muhammad Naeem - respondent No.5 and damage to the shop. Saif-ur-Rehman, present petitioner No.1 and Muhammad Naeem-respondent No.5 contested the ejectment petition and denied relationship of landlord and tenant.
During pendency of ejectment petition, Khalid Mehmood Khawaja deceased (now represented through legal heirs) and Wajid Mehmood (petitioner No.2 & 3 in writ petition, both brother in law/sala of Saif ur- Rehman) at their instance were impleaded as respondents and they took the plea that Khalid Mehmood Khawaja was owner of 1 Marla shop, purchased from original owner-Muhammad Ismail vide mutation of sale No.1540 Exh.Al, attested on 25.02.2006, on the basis of registered sale deed dated 12.11.2005 (copy of sale deed not produced).
3. To resolve the factual controversy , learned Special Judge Rent (Rent Tribunal) framed following issues:- ISSUES
1. Whether their exists relationship of land lord and tenant between the parties? OP Parties. 1-A. Whether respondents No.3 & 4 are in possession of the tenancy shop and the petitioners have no nexus with it? OPR (Respondents No.3 and 4)
4. After recording evidence of the parties, vide impugned order dated 24.04.2013, passed by the learned Special Judge Rent, Bahawalpur, these issues were answered against the present petitioners and ejectment order was passed in favour of respondents/land lords. Only petiticner-Saif-ur-Rehman assailed this judgment before the learned Additional District Judge, Bahawalpur, who vide judgment dated 29.10.2013, dismissed the appeal. As such the petitioner alongwith his brothers-in-law i.e Khalid Mehmood and Wajid Mehmood, has assailed these orders/judgments in this writ petition mainly on the grounds that the same suffer from misreading and non-reading of evidence and as such not sustainable.
5. Heard. Record perused.
6. The landlords to prove issue No.1 have produced AW l/Masood-ul-Haq, Stamp Vendor, who deposed that stamp paper was purchased by present petitioner-Saif-ur-Rehman for execution of rent deed. AW- 2/Muhammad Ibrahim Sheikh, Advocate/Notary Public, proved his verification on rent deed (Exh.A1). AW- 3/Allah Bachaya, deed writer has supported execution of rent deed and attestation of the same by petitioner No.1 and witnesses. AW-5/Muhammad Latif and AW-6/Muhammad Amin are marginal witnesses of rent deed (Exh.A1) and they proved their signatures on it. They were not cross examined by petitioner No.1 and under law it will be presumed that he has accepted their testimony based on truth. One of the landlords Muhammad Latif as AW-4 proved his affidavit Exh.A2, wherein he supported the case taken in ejectment petition. He was cross examined at length but without any premium to the defence set up by the present petitioners. In rebuttal, petitioner-Saif-ur-Rehman as RW-1 proved his affidavit Exh.R1, reiterating his case set in written statement. He conceded that Khalid Mehmood and Wajid Mehmood Khawaja are his Thupizad' and their sister has been married with him. RW-2/Syed Naeem Akhtar (respondent No.5 in writ petition) proved his affidavit Exh.R2. During cross examination he admitted that he was running make shift shop of vegetables in front of rented shop. He conceded that the shop was previously owned by Muhammad Ismail and petitioner-Saif-ur-R hman was running a book shop in it. None from Khalid Mehmood and Wajid Mehmood Khawaja (respondents in ejectment petition claiming owner.ship of shop) has put appearance in witness box inspite of the fact that their affidavits are on record. As such their right of evidence has been closed by the learned Special Judge Rent vide orders dated 22.0:5.2012. Their omission to appear in witness box or produce any evidence leads to draw the inference that they have miserably failed to prove issue No.2. Exh.A1 is rent deed dated 28.03.2007 executed by present petitioner No.1 in favour of landlords/respondents, duly attested by AW-2/Notary Public. The photocopy of C.N.I.C. of the present petitioner No.1 is also annexed with it.
7. Learned counsel for the petitioners Mr. Abdul Majeed Bhatti Advocate, has vehemently argued that vide mutation of sale No.1540 Exh.A1 attested on 25.02.2006 on the basis of sale deed, Muhammad Ismail/original owner had sold away 1 Marla land situated in Khata No.301, Mouza Noor Pur Noranga, Bahawalpur to Khalid Mehmood Khawaja. As such he is co-sharer and against co-sharer ejectment petition is not maintainable and only remedy available to the landlord is to file a suit for partition. To substantiate this legal preposition reliance has been placed on PLD 2009 Supreme Court 71 `Mst.
Sanobar Sultan and others Versus Obaidullah Khan and others' and 1992 SCMR 1352 `Syed Izhar-ul- Hassan Rizvi Versus Mian Abdur Rahman and others'. To my view, the facts of reported cases are quite distinguishable as in those cases, the tenant has purchased the rented property and as such it has been laid down that he did cease to be a tenant under the landlord. Whereas in the instant case, Saif-ur- Rehman-petitioner has not purchased the shop and as such his status is still of :enant. Learned counsel for the petitioners has further maintained that the ejectment proceedings are based on malafide and the Courts below have acted in arbitrary manner, in violation of law and as such irrespective of the fact that petitioners No.2 and 3 have not filed appeal and availed alternate remedy against ejectment order, still they are competent to file writ petition. Reliance has been placed on 2011 YLR 2850 (Lahore) `Sh. Tariq Mehmood and others Versus E.T.P.C. and others'. To my view this contention is devoid of any legal force.
As noticed earlier, the ejectment petition was filed on 30.09.2009 and it is second round of litigation and fair opportunity of defence has been afforded to the petitioner No.2 and 3 and they have failed to establish- any malafide or abuse of power by the lower fora as rightly observed by learned Additional District Judge in impugned judgment. Petitioners No.2 and 3 after withdrawal of writ petition No.129 of 2013 on 11.01.2013, become inactive/dormant as such they cannot legally file writ petition, without availing alternate remedy.
8. I have examined the impugned orders passed by he learned Special Judge Rent and learned Additional District Judge, Bahawalpur. Both of them have fully scanned, discussed the oral as well as documentary evidence led by the parties and fairly decided the respective pleas of the contesting parties and as such impugned judgments do not suffer for misreading and non-reading of evidence. In view of principle of estoppel and rule of forfeiture of tenancy, the Courts below have validly passed an ejectment order. In precedents PLD 2007 Supreme Court 45 `Shajar Islam Versus Muhammad Siddique and 2 others' and 2009 YLR 2234 (Karachi) 'Muhammad Latif Versus District Judge Karachi (South) and others' it has been laid down that High Court in exercise of its Constitutional Jurisdiction is not supposed to interfere in findings on controversial question of facts based on evidence, even if such finding was erroneous and it is not proper for the High Court to disturb findings of facts through reappraisal of evidence in Constitutional jurisdiction or to exercise such jurisdiction as a substitute of revision or appeal. Thus I am of the view, the impugned orders have been. passed in accordance with law, call for no interference by this Court in its Constitutional jurisdiction. Consequently , the instant Writ petition is dismissed. In the instant case, after recording findings of existence of relationship in between real contesting parties i.e petitioner No.1 and respondents No.3 & 4, it was mandatory for the learned Special Judge Rent, to pass the final order regarding the amount of rent due to landlord, which petitioner No.1 being tenant is bound to pay and such order shall be executable against defaulting tenant. So, to this extent only, matter is remanded to the learned Special Judge Rent, Bahawalpur for further proceedings under Section 24 of the Punjab Rented Premises Act (VII of 2009). The parties and their respective counsel will appear before the learned District Judge, Bahawalpur on 10,02.2017, who will entrust the case file to any competent Court to proceed further in this case, as directed supra.