' The petitioners have challenged the validity of the order, dated 1st November, 1980 passed by the Rent Controller and affirmed by Additional District Judge vide judgment, dated 29th November, 1981, ejecting them from shop No, 16 situate in Plot No, 7535 Khasra No, 4942 D. G. Khan.
2. Briefly stated relevant facts are that on 26th June, 1976 the respondents/landlords filed an ejectment petition under section 13 of the Punjab Urban Rent Restriction Ordinance, 1959, (hereinafter called the Ordinance) against the petitioners/tenants on the ground of default in payment of rent ; reconstruction ; and bona fide personal need.
3. It may be stated here that initially the respondents/landlords described the disputed premises as shop No, 17, block No, 14, in revenue record mentioned as Khata No, 3624/1, Khasra No, 4941, shop No, 16, area 1 Marla 50/ s. Ft. Within the following boundaries :- ' North : Thoroughfare.
' South : House of Sh. Abdus Sattar. East : Shop of Muhammad Yasin. West : House owned by '
Suleman.
' The petitioners filed their written statement on 26th June, 1976 without objecting that the property in dispute was wrongly described in the ejectment petition. However, they moved an application on 27th April, 1977 seeking permission to amend their written statement to the effect that they were in possession of shop bearing No, 16, Khata No, 3625 Khasra No, 4942 having an area of 1 Marla and 230 s. Ft. Block No, 14 ,a nd not shop No, 17 as mentioned in the petition. The respondents also made an application on 21st October, 1977 and sought permission for substituting shop No, "17/4942 Khata No, 3625" in place of "16/4941 Khata No, 3624" in their petition. Learned Rent Controller allowed both these applications on 18th May, 1978 and framed preliminary issues to decide if relationship of landlord and tenant exists between parties or not.
4. Having held that petitioners are tenants following 4 more issues were framed on merits
(1) Whether the respondents have defaulted in the payment of rent ? O. P. R.
(2) Whether the petitioners in bona fide and good faith want to demolish the shop in question and to reconstruct it in accordance with the plan approved by Municipal Committee D. G. Khan?
(3) Whether the petitioners in bona fide and faith need the shop in question for their personal use and occupation ? O. P. A.
(4) Whether the respondent No, 1 has damaged the shop in question? O. P. R.
5. After considering the material on record the learned Rent Controller found that the petitioner paid no rent since 10th April, 1979 ; that Aman Ullah petitioner on his own showing was the sole tenant of the premises after the demise of his father vide an earlier judgment Exh. P-27, and therefore, the petitioners Nos. 2 to 9 were joined as pro forma respondents only, whereas the notice under section 13-A of the Ordinance served upon Aman Ullah petitioner was sufficient in the eye of law ; that in view of Exh. A/28 site plan having been approved by the municipal authorities, it was sufficiently established that the premises was required by the respondents for reconstruction and that the same was also needed by the respondents/landlords for their bona fide personal need.
Relying on PLD 1974 Lab. 489, the learned Rent Controller further held that because the petitioners denied the relationship of landlord and tenant which ultimately was found against them, the tenant was not entitled to any leniency and no notice under section 13-A of the Ordinance was required. Consequently he accepted the petition and ordered the eviction of the petitioners, vide order, dated 1st November, 1980.
6. Being aggrieved the petitioners filed an appeal against the order of eviction before the Additional District Judge but remained unsuccessful as the learned Additional District Judge held that since the boundaries of shop No, 17 given in the original as well as in the amended petition were identical, therefore, he found that the shop in possession of the petitioners was the same which was owned by Muhammad Bashir and father of Aman Ullah petitioner (Allah Wasaya) on an earlier occasion admitted to be his tenant and was later purchased by the respondents. He concurred with the finding of the learned Rent Controller on the issues pertaining to reconstruction of the suit shop and requirement of bona fide personal use and dismissed the appeal. Being aggrieved the instant writ petition has been filed. I have heard learned counsel for the parties at some length.
7. During the arguments at the request of learned counsel appearing on behalf of the respondents/landlords file of Writ Petition No,27/R/81 was sent for and perused which was filed by Aman Ullah the present petitioner concerning the same property and the same parties. In that writ petition it was urged that there are two separate shops bearing Khasra No, 4941 Khata No, 3624 and Khasra No, 4942 Khata No, 3625 having different area. In that writ petition legality of the order, dated 2nd October 1978 rejecting petitioners application seeking transfer of the shop No, 4942 Khata No, 3625 by the Deputy Administrator (Residual Properties) D. G. Khan, and order, dated 9th December, 1979 passed by Additional Commissioner (Revenue) was challenged. That writ petition was dismissed in limine by his Lordship Mr. Justice Abdul Shakoorul Salam with the following observation :- "Learned counsel for the petitioner have vehemently contended that there are two shops and it was only one which had been transferred to Muhammad Bashir, respondent No, 3 and the other shop in possession of the petitioner's father and now in his possession is a separate property and should have been transferred in favour of the petitioner. He has also referred to various documents on the revenue side. The contention has no force whatsoever. The petitioner's father was in possession of the shop which had been auctioned and was permanently transferred to Muhammad Bashir. In civil proceedings, the petitioner's father conceded Mae fact that the shop in his possession was in the ownership of Muhammad Bashir, respondent No, 3, and that he himself was the tenant thereof. Thereafter, it was not open for him to ask for the transfer of the shop and his application under Settlement Scheme No, VIII was rightly rejected, on 5th August, 1972; The matter remained still for the next five years when on 1st October, 1977 the petitioner filed an application under the Scheme for Disposal of Residual Properties known as Settlement Scheme No, IX which application was dismissed on 9th December, 1979. The petitioner did not demur, nor, challenged the order in appropriate proceedings."
8. The above observation has debunked for good the plea of the petitioners that the property in possession of the petitioner was different than that claimed and owned by the respondents. It may be stated here that this very shop was in fact sold out by aforesaid Bashir Ahmad to the present respondents through a sale-deed on 23rd April, 1975. Learned Additional District Judge in his order observed that the petitioner's suit for declaration that they were allottee of shop No, 17 and Muhammad Hafiz and Muhammad Yasin were not its owners was dismissed by the Senior Civil Judge on 10th March, 1976 (judgment Exh. P/21), and the learned Additional District Judge on 26th April, 1976 in appeal by Aman Ullah refused to interfere with it. This means that the question of ownership of the shop in dispute has stood resolved by the civil Court which operates as res judicata.
9. Learned counsel for the petitioner has vehemently argued that on the death of Allah Wasaya (the original tenant), his heirs according to section 2 (i) of the Ordinance inherited the tenancy therefore, it was incumbent upon the respondents to serve each of them with a notice under section 13-A of the Ordinance and admittedly the respondents served the notice only to Aman Ullah petitioner. He, therefore, urged that the legal requirement to issue notice to Allah Wasaya's heirs other than Aman Ullah has not been fulfilled, therefore, the eviction petition was liable to be dismissed.
10. I have considered this contention of the learned counsel and find that heirs of Allah Wasaya remained associated with the proceedings of ejectment against Aman Ullah throughout and their main stay was that no relationship of landlord and tenant existed between the parties. They A cannot, therefore, simultaneously take up pleas which are mutually destructive. Having once pleaded that they are not tenants under the respondents it is not open to them to plead that notice under section 13-A of the Ordinance was not served on them, as they claimed to be owners of the suit property. The petitioners are blowing hot and cold in the same breath. Having failed in the civil Court to establish their title they dragged their feet to cling to the property through settlement Courts which manoeuvre too proved futile even upto the High Court, as mentioned above. In these circumstances they cannot be taken to have come to this Court with clean hands, therefore, this Court would not issue writ in aid of such persons who deliberately concealed their failure in the High Court on the same issue and, therefore, I have no doubt left in my mind that the petitioners are not entitled to any relief by invoking the discretionary constitutional jurisdiction of this Court. In result this writ petition is dismissed.