JAWAD HASSAN, J.---Through this constitutional petition, the Petitioner has called in question order and decree dated 09.06.2016 passed by Special Judge (Rent), Faisalabad, whereby ejectment petition filed by the Respondents Nos,3 and 4 was allowed and appeal preferred against the same by the Petitioner was dismissed by learned Additional District' Judge, Faisalabad vide judgment and decree dated 27.03.2017. These concurrent findings of fact have been assailed through this constitutional petition.
2. Precisely, the facts necessary for adjudication of instant petition are that the Respondent preferred an ejectment petition in terms of the Section 15 of the Punjab Rented Premises Act, 2009 (the "Act"). seeking seeking eviction of the Petitioner from the suit property description of which is given in para-1 of the application. The said application was contested by the Petitioner by filing leave to contest. The learned Special Judge Rent, Faisalabad after hearing the parties vide order dated 09.06.2016 allowed the ejectment petition filed by the Respondents Nos,3 and 4 and dismissed the leave to contest. The said order was assailed by the Petitioner by filing an appeal before the learned Additional District Judge, Faisalabad, who concurred with the findings and dismissed the appeal vide judgment dated 27.03.2017. Hence this constitution petition.
3. Learned counsel for the Petitioner argued that both the courts below while deciding the matter did not consider the fact that admittedly, there exists oral agreement between the parties regarding tenancy of the premises in question, but both the courts below have not given due consideration to this aspect of the case, therefore, the impugned judgments and decrees are liable to be set aside. He further argued that there is no default on the part of the Petitioner and the Petitioner has been regularly paying the rent of the rented premises to the Respondent No,3. He argued that by spending a huge amount of Rs,5,00,000/-, the Petitioner established a service station at rented premises but the Respondent No,3. with mala fide intention and just to take over the business of the Petitioner concocted a fabricated story and filed ejectment petition which was wrongly allowed. Lastly, he prayed for setting aside of the impugned judgments and decrees by allowing this petition.
4. Conversely, learned counsel representing the Respondent No,3 has vehemently refuted the arguments raised by learned counsel for the Petitioner. He added that tenancy between the parties is duly established on the record and the Petitioner have badly failed to prove the payment of rent due towards them. Learned counsel contended that tenancy was for a fixed period which expired and the Petitioners cannot claim permanent possession of the suit premises on account of perpetual tenancy. Learned counsel maintained that there are concurrent findings of facts recorded by both the courts below which are based on proper appraisal of evidence so the same cannot be interfered with in exercise of constitutional jurisdiction. Reliance is placed on "Mirza Book Agency through Managing Partner and others v. Additional District Judge, Lahore and others"
(2013 SCMR 1520), "Nadeem Zafar and others v. Muhammad Ismaeel and others" (PLD 2012 Lahore 178) and "Hafiz Muhammad Shahid Nawaz v. Hafiz Muhammad Saeed" (2010 CLC 1941). He has further argued that the grounds which have been taken in this petition were not taken in the leave to contest petition, therefore, this petition is liable to be dismissed.
5. I have heard learned counsel for both the sides at considerable length and also perused the record with their assistance.
6. From the perusal of record it reveals that suit property was rented out to the Petitioner in August, 2014 through an oral agreement in presence of witnesses namely Muhammad Nawaz and Tanveer Ahmad for two years. The monthly rent was fixed as Rs,14,000/- along with other terms and conditions. The Petitioner paid rent till April 2015 but where after, he became defaulter. The eviction Petition was filed under Section 15 of the Act seeking eviction of Tenant/Petitioner and recovery of arrears of rent on the ground of default of payment of rent and subletting the rented premises without permission of the Respondent No,3/landlord. This petition was, however, allowed on the ground of expiry of oral tenancy period and wilful default in the payment of rent. It is averred from the petition that the Respondent No,3 is owner of the demised property, which was rented out to the Petitioner for a period of two years since August 2014, but despite expiry of period of tenancy, the Petitioner did not vacate the premises in question nor paid the rent since April 2015. The Petitioner was summoned, who appeared and submitted his application seeking leave to contest under Section 22 of the Act. The said leave to contest application was contested by the Respondent No,3, but was dismissed by the learned Tribunal. Consequently, ejectment petition was allowed and Petitioner was directed to vacate the rented premises within one month. The issue of oral tenancy is already settled by the Hon'ble Supreme Court of Pakistan in Ahmad All alias Ali Ahmad v. Nasar- ud-Din and another (PLD 2009 SC 453), wherein it has been held as under:- "In the impugned judgment the High Court has observed that the tenancy had not been created by the written instrument. This Court in case of Shajar Islam v. Muhammad Siddique and 2' others (PLD 2007 SC 45) has laid down that tenancy would not be necessarily created by written instrument in express terms, rather might also be oral and implied. In normal circumstances, in absence of any evidence to the contrary, owner of property by virtue of his title would be presumed to be landlord and person in passion of premises would be considered as tenant under the law."
Further in "Shajar Islam v. Muhammad Siddique and 2 others" (PLD 2007 SC 45) it has been held as under:-- "The determination of the pivotal question related to the legal status of the parties vis-a-vis the premises and the nature of their relationship inter se, would certainly be a mixed question of law and fact to be decided in the light of the evidence. The title of the petitioner is not as such disputed and in absence of any evidence in rebuttal, there would be a strong presumption of existence of tenancy between the parties.
This is settled proposition of law that a landlord may not be essentially an owner of the property and ownership may not always be a determining factor to establish the relationship of landlord and tenant between the parties. However, in the normal circumstances in absence of any evidence to the contrary, the owner of the property by virtue of his title is presumed to be the landlord and the person in possession of the premises is considered as tenant under the law or the tenancy may not be necessarily created by a written instrument in express terms rather may also be oral and implied."
7. However, it is the case of the Petitionerthat he by spending an amount of Rs,5,00,000/- has established a service station over the rented premises, but there is no written agreement between the parties regarding establishment of such service station. It is well settled principle of law that in the absence of any written agreement or written consent regarding the construction over the rented premises, the said construction will be upon the risk and cost of the tenant. Further, any structural change of rented premises without written consent of the landlord is itself sufficient ground for ejectment. Section 13(1)(f) of the. Act provides that a tenant shall not make a structural change in the premises without prior written consent of the landlord. From the perusal of record it reveals that relationship of landlord and tenant is admitted between the parties. The Petitioners plead that they are not defaulter but they failed to substantiate this ground through cogent and confidence inspiring evidence and also remained fail to show receipts of deposit of rent upto date.
In these circumstances, both the Courts below have rightly directed the Petitioner to vacate the rented premises and to pay arrears of outstanding rent at the rate of Rs,14000/- per month from May 2015 till eviction. Both the Courts below have rightly held entitled the Respondents to receive the outstanding rent @ Rs,14,000/- per month from May 2015 till the handing over the vacant possession of demised premises. Further, there are concurrent findings of facts recorded by both the courts below which are based on correct appreciation of evidence so the same cannot be interfered with in exercise of constitutional jurisdiction. Reliance in this respect is placed on "Mirza Book Agency through Managing Partner and others v. Additional District Judge, Lahore and others"
(2013 SCMR 1520),"Nadeem Zafar and others v. Muhammad Ismaeel and others" (PLD 2012 Lahore 178) and "Hafiz Muhammad Shahid Nawaz v. Hafiz Muhammad Saeed" (2010 CLC 1941).
8. There are concurrent findings of facts recorded by both the learned courts below which apparently do not suffer any legal infirmity. The Petitioners have failed to point out any misreading and non-reading of evidence by the courts below, while arriving at their conclusion and directed the eviction of the' Petitioner from the Property. The constitutional jurisdiction is always exercised with great care and caution in such matters as the same cannot be used as a substitute for an appeal neither the evidence duly appreciated by the learned courts below can be re-appraised on the ground that some other view is possible in writ jurisdiction. However, the appraisal of evidence is the function of courts below and if the findings are based on proper appraisal of evidence then the same cannot be interfered with lightly in exercise of writ jurisdiction. The party approaching the High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973'has to demonstrate that there is some gross misreading or non-reading of evidence or any jurisdictional defect floating on the surface of the record but in the instant case all these preconditions are clearly missing. Reliance in this respect is placed upon Shajar Islam v. Muhammad Siddique and 2 others (PLD 2007 SC 45), wherein it has been held as under:-- "High Court in exercise of its Constitutional jurisdiction was not supposd to interfere in findings on controversial question of facts based on evidence, even if such finding was erroneous. Scope of judicial review of High Court under Article 199 of the Constitution in such cases was limited to the extent of misreading or non-reading of evidence or if finding was based on no evidence, which might cause miscarriage of justice. It was not proper for High Court to disturb finding of fact through reappraisal of evidence in Constitutional jurisdiction or to exercise such jurisdiction as a substitute of revision or appeal. Interference of High Court in concurrent findings of fact by the Courts regarding existence of relationship of landlord and tenant between the parties was beyond the scope of its jurisdiction under Article 199 of the Constitution."
9. The nutshell of the above discussion is that the findings of both the courts below are in consonance with law calling for no interference in exercise of writ jurisdiction. The Petitioner has failed to point out any misreading or non-reading in the judgments of both the courts below, warranting any interference by this Court, while exercising constitutional jurisdiction. This being so, the instant petition fails and is dismissed with no order as to costs.