1. MUHAMMAD YAQUB ALI, J.-The respondent moved an application for ejectment of the petitioner from a building site situated in Lyallpur on the ground of default in payment of rent for four months.
2. The Rent Controller found that the petitioner had made an oral tender of rent which was declined by the respondent and dismissed the application.
3. On appeal by the respondent the District Judge came to the contrary conclusion and held that there was no oral tender of rent by the petitioner and in view of default for four consecutive months, he allowed the application and ordered ejectment of the petitioner. A second appeal preferred by the petitioner was dismissed by the High Court on the ground that the finding by the First Appellate Court that there was default in payment for four months was not open to challenge under section 101, C. P. C.
4. The petitioner now seeks leave to appeal inter alia on the ground that in the circumstances of the case the discretion vested in the District Judge under section 13 of the Rent Restriction Ordinance as appellate authority was not properly exercised. It was contended that the petitioner has erected a building on the leased land at a cost of Rs. One lac which circumstance has not been given due weight in ordering ejectment.
5. Mr. Sharif Baqir appearing for the respondent maintained that as the petitioner could not be directed to remove the structure of the building in the proceedings under the Rent Restriction Ordinance, the expense incurred by him on the raising of the structure, if any, was not a relevant factor in ordering ejectment under section 13. The argument so far as it goes is correct. Only a civil Court can, in appropriate proceedings, pass a decree for removal of the structure raised by a tenant, but it does not mean that the Rent Controller or the District Judge as appellate authority was precluded from taking this circumstance into consideration while deciding to direct ejectment of the petitioner. However, it follows that the order for ejectment passed by the District Judge can be executed only by delivery of symbolic posses--sion of the site to the respondent and thereafter he will have to pursue such further legal remedy as may be available to him in law. In this view we do not consider it a fit case for interfering with the order of the High Court.
6. The petition for leave to appeal is dismissed.