' The petitioner through this writ petition seeks a declaration that an order, dated 29-7-1975 of the learned Rent Controller, Lahore respondent No, 6 ordering the ejectment of the petitioner and a judgment, dated 19-7-1982 of the learned Additional Judge, Lahore respondent No, 7 upholding the order of the Rent Controller and dismissing appeal of the petitioner are without lawful authority and of no legal effect against the rights and interest of the petitioner.
2. Briefly the facts are that respondent No, 1 filed on 21-5-1971 and application for ejectment of Sh.
Ghulam Dastgir, predecessor-ininterest of respondents Nos. 3 to 5 and the petitioner from Shop No, 27 situated in New Anarkali Bazar, Lahore before the Rent Controller, Lahore on the grounds that Sh.
Ghulam Dastgir was a defaultar as to the payment of rent for a period commencing from December, 1970 to May, 1971, he materially impaired and damaged the shop and had sublet the above-said shop to the petitioner without their written consent. During the pendency of the ejectment petition Sh. Ghulam Dastgir died and Mushtaq Ahmad and Mst. Kishwar Sultana, his son and daughter were impleaded as legal representatives. Subsequently during the pendency of the appeal Mushtaq Ahmad also died and his legal representatives joined the proceedings. Sh.
Ghulam Dastgir and the petitioner contested the ejectment petition. Sh. Ghulam Dastgir in his written statement admitted to the extent that he did not pay the rent from December, 1970 to May, 1971 (six months) at the rate of Rs,143.50 amounting to Rs,86,100 but he promised and assured the applicants to pay the whole rent in the future due to certain personal circumstances. The applicants before filing the ejectment petition did not serve any notice upon him so that he could pay rental amount. He admitted the damage but pleaded that was not intentional. As to the petitioner he stated that he used to sell the articles like cutlery etc. On road side adjacent to the shop and had cordial and friendly relations with him. He accommodated him in the shop but later, on his repeated requests the petitioner was not willing to vacate the shop and as such was in illegal possession. The petitioner in his written statement said that he was in possession of the shop in dispute before that was transferred to Mst. Akhtar Malik widow of Nazir Ahmad Malik, Manzoor Malik and Farid Malik, alongwith Mst. Afsar Jehan Begum widow of Nawab Ahsan Yar Jang and Mst.
Noor Jehan Begum jointly by the Settlement Department, Lahore through P.T .0. , dated 3-2-1962 and P.T.D., dated 10-2-1966. The petitioner was, therefore, entitled to a notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 which was not served by the transferees of the property in dispute upon the petitioner. After the property was partitioned, Mst.
Akhtar Malik became an exclusive owner of the shop. She gifted the shop to respondents Nos. 1 and 2, who did not given a notice to the petitioner under section 13-A of the Rent Restriction Ordinance.
The application for ejectment was not competent and the same, therefore, liable to be dismissed.
He admitted the applicants as the landlords of the shop in dispute. He denied that Sh. Ghulam Dastgir was a tenant in the shop. He alleged himself as a statutory tenant in the shop and that the applicants had been charging and receiving rent at the rate of Rs,300 p.m. From him and been issuing the receipts. He made the payment of the rent as to the period from December, 1970 to April, 1972 (five months) to the applicants through their father Mr. Nazir Ahmad Malik as he used to make the payment in the past. Nazir Ahmad Malik avoided the issuance of receipts either on one pretext or the other. He denied that the shop had been sublet to him by Sh. Ghulam Dastgir and also denied the damage having been caused to the shop.
3. The learned Rent Controller framed an issue that whether petitioner was entitled to notice under sections 30 of Act XXVIII of 1958 and 13(A) of Ordinance VI of 1959 before the institution of the petition for ejectment. The learned Rent Controller decided the issue against the petitioner holding him as a sub-tenant, and as a result of the finding on the issue the learned Rent Controller passed on order of ejectment against the petitioner straightaway. The legal representatives namely Mushtaq Ahmad and Kishwar Sultana of Sh. Ghulam Dastgir filed an appeal and another was filed by the petitioner. On 14-5-1978 the learned Additional District Judge set aside the order of ejectment and after framing three more issues remanded the case to the Rent Controller for decision afresh. Against the remand order three separate appeals were filed in the High Court; first the landlords, second by Mushtaq Ahmad etc. And the third by the petitioner. This Court in its order, dated 7-10-1980 set aside the order of the learned Additional District Judge. It was held that the order of remand was illegal. The learned Additional District Judge could in law make further inquiry under section 5(3) of the Punjab Urban Rent Restriction Ordinance. According to the observation of this Court the learned Rent Controller had framed a comprehensive issue, and a direction was given to the Additional District Judge to hear the appeal afresh in accordance with law. The petitioner went for Leave to Appeal in the Supreme Court from the above-said order of this Court which was refused by the Supreme Court, vide its order, dated 7-3-1981. The learned Additional District Judge, vide his judgment, dated 19-7-1982 dismissed both the appeals, hence this writ petition.
4. The learned counsel for the petitioner has contended that the petitioner was a sub-tenant was either the result of non-reading of the evidence or misreading of the same by the learned Rent Controller. In this behalf he has referred to certain portions of the order of the learned Rent Controller and the statements appearing in the evidence of the parties. Next he has maintained that the statements of Ghulam Dastgir and Malik Nazir Ahmad in proceedings under section 145 of the Criminal Procedure Code held between Sh. Ghulam Dastgir and Abdul Hameed were not considered by both the tribunals in deciding the issue. The finding of the learned Additional District Judge in his Judgment disposing of the appeal is not in keeping with the issue as framed.
5. The learned counsel appearing for respondents Nos. 1 and has submitted that the case calls for no interference within the constitutional jurisdiction even if there is non-reading and misreading of the evidence by the Rent Controller since such a thing was not pointed out to the appellate authority. The sub-letting is a question of fact. The petitioner cannot argue contrary to the admission made by him in his written reply to the application for ejectment. The sum total of the agreement Exh. R.W. 4/12 is that the petitioner is sub-tenant. The question of fact conclusively by the appellate Court as a special forum under the Punjab Urban Rent Restriction Ordinance cannot be re-examined here. The learned counsel for respondents Nos. 1 and 2 has made several other submissions which are not relevant for consideration in view of the judgment which is going to be passed in this writ petition. On the whole he has supported the orders of both the tribunals. He has relied upon Sh. Muhammad Azam v. Sh. Gulzar Ahmad and another 1985 SCMR 1615, Haji Muhammad and another v. Muhammad Rafique and another 1980 SCMR 2, Sabaz All and another v. Mst. Saeeda Khatoon and 3 others 1979 CLC 166, Akhtar Ali and another v. Mst. Umatul Islam PLD 1979 SC 815, MRs, Alima Ahmad v. Amir Ali PLD 1984 SC 32, Syed Mueenuddin v. Saeeda Parveen 1984 SCMR 120 and Khawaja Muhammad Yaqoob Khan and another v. Sh. Abdur Rahim and another in support of his submissions.
6. The learned counsel for the petitioner has been asked that whether misreading of the evidence was brought by the petitioner to the notice of the learned Additional District Judge he has submitted that written arguments were filed by both the parties at the invitation of the predecessor of the learned Additional District Judge Mir Muhammad Afzal. The learned Additional District Judge who disposed of the appeal finally otherwise heard the arguments of both the parties in the Court.
The judgment of the learned Additional District Judge shows that nothing of the kind was urged before him, therefore, the petitioner cannot be allowed to raise the point as to misreading or non- reading of the evidence before this Court since it was for him to have urged the case from this standpoint before the appellate Court. Anyhow the order of the Rent Controller merged into the judgment of the learned Additional District Judge and he appears to have reviewed the evidence independently in order to come to his own conclusion. The learned counsel as to the statements made during the proceedings under section 145 of the Cr. P.C. Has not been able to show that the statements per se could be read as in evidence by the learned Rent Controller. The use at the best to which such statement could be put to was by way of cross-examining and confronting the witnesses as to their previous statements so far as were relevant to the question and that was not done, therefore, nothing can be made out if the statements placed on the record were not considered or referred to by both the tribunals. It has been remarked by this Court in the appeal from the remand order that the learned Rent Controller had framed a comprehensive issue. At the time of disposing the appeal afresh after it was directed by the High Court the learned Additional District Judge for further inquiry under section 15(3) of the Punjab Urban Rent Restriction Ordinance asked the parties as to the producing of any evidence after the ramand but the parties did not prefer to produce any further evidence. However, the learned Additional District Judge felt the necessity for recording the statement of Abdul Hameed as a matter of further inquiry so he recorded the statement on 20th June, 1980 and proceeded to determine the issue in the light of the record supplemented by the further statement of the petitioner. He observed that on the basis of his own statement the petitioner had admitted that he had been paying rent from 1960/61 to the transferee and from 1967/68 to the present landlords. According to his own statement he had not paid any rent after 1971 till 1980, for which there was no explanation. The learned Additional District Judge further observed that: "Coming now to the question as to whether this default cannot be considered as a default for non- service of notice under section 30 Act XXVIII of 1958 or notice under section 13-A of Punjab Urban Rent Restriction Ordinance. I find that even from the date of institution of ejectment petition and from the date of service of this Abdul Hameed in that ejectment petition more than 6 years had passed in 1978 but still this Abdul Hameed had not deposited or tendered any rent after 1971. Even it is assumed that he was a statutory tenant, still on this ground alone he was not entitled to the protection under section 30 of Act 28 of 1958 or under section 13-A of Ordinance VI of 1959.
' Coming now to this matter from another aspect I find that according to his own statement and his own case on record he had been paying rent firstly to the transferee and thereafter to the present landlords. He has done so according to his case for not less than ten yeaRs, He could not thereafter claim this protection."
' He again observed that, "Even as per his own case as brought out on record through his witness, he used to sit firstly on 'Thara' that is abatement and thereafter he was accommodated in the shop. This goes in line with case of the landlord that he was inducted by Ghulam Dastgir iq the shop in dispute, as sub-tenant.
Even if it is proved that he was not a sub-tenant and was only a licensee of Ghulam Dastgir the original tenant, still he goes out with Ghulam Dastgir."
' In respect of Sh. Ghulam Dastgir while dismissing his appeal the learned Judge had already observed that he had admitted non-payment of rent for six months but had pleaded that the said non-payment of rent was due to slump in the market. He had not paid any rent, thereafter, the pendency of ejectment petition or the pendency of appeal. His case, therefore, was clearly that of straightway ejection in any case. On the other aspect of the case he had observed that the petitioner had tried to forge some evidence of his possession as a tenant in the form of an entry in survey register maintained by the Rehabilitation Department. As to the possession of the petitioner without assuming him as a tenant the learned Additional District Judge said that the law did not require notice to any sub-tenant since the petitioner was in possession not in his own right even till 1970 he was paying the rent on somebody else's account as was evident from Exhs. R.2 to R.
17. He was, therefore, not entitled to any notice. Even if he was entitled then through lapse of time.
He was not entitled after the expiry of a period of six yeaRs,
7. From the discussion of the learned Additional District Judge is obvious that he negatived the case of the petitioner by holding him as a sub-tenant as well as on assuming him as a tenant, therefore, it cannot be said that either the finding of the learned Additional District Judge is not in keeping with the issue or in determination thereof. If the petitioner feels aggrieved of the appreciation of evidence and conclusion thereof then the errors if any can only be corrected by an appellate Court he cannot be helped because this Court can interfere only if some jurisdictional defect is pointed out which has not been. This Court in no case be asked within the scope of the constitutional jurisdiction either to correct the errors arising out of the appreciation of evidence or to review the evidence and to come to its own conclusion as to that. The decision rendered in appeal under the Punjab Rent Restriction Ordinance is according to the provision of the Ordinance final and if the appellate Court commits certain errors which do not arise out of the exercise of jurisdiction then the scheme of the Rent Restriction Ordinance is that a person is to tolerate the injury if any. Consequently this writ petition is dismissed without any order as to costs.