MUHAMMAD GUL, J.-This petition for leave is against the order of the learned Single Judge of the Lahore High Court dated 23-2-1973, upholding the order of Additional District Judge, remanding the case for fresh decision by the Rent Controller.
2. Respondent No. 1 herein, is an auction-purchaser from the Settle--ment department, of shop No. SE-9-R-42, Brandreth Road, Lahore. A P.T.D. Has since been issued in his favour. When the shop was advertised for auction, Abdur Rashid, respondent No. 2 herein was shown as its occupant though it appears that the two petitioners herein were jointly carrying on business in the shop.
3. After the issuance of the P. T. O. In his favour respondent No. I gave notice to the two petitioners and respondent No. 2 informing each of them of the transfer of the shop in his favour and inquiring from them the basis of their possession of the shop and requiring them to settle with him terms as to the payment of rent as from the date of transfer in his favour. Notice issued to respondent No. 2 was returned unserved. The petitioners on the other hand acknowledged the notices addressed to them and informed respondent No. 1 that they were in possession of the shop in their own right as allottees from the Rehabilitation Department. They further offered to pay rent to respondent No.1 at the rate of Rs.28 per mensem which they had been paying to the Rehabilitation Department.
4. Thereafter respondent No. I applied to the Rent Controller for the ejectment of the petitioners and respondent No. 2 on the plea that respondent No. 2 has failed to pay rent and had also sublet the premises to the petitioners without any authority from respondent No. 1. Respondent No. 2 did not appear and the case proceeded ex parte against him. The Rent Controller dismissed the application against the petitioners for want of notice under section 30 of Act XXVIII of 1958. On appeal by the petitioners, the learned Additional District Judge set aside the order of the Rent Controller and remanded the case for decision on merits because according to the pleadings of the parties, the petitioners had admitted the receipt of notices issued to them by the respondent and did not dispute validity of the notices, nor claimed any issue on the point. The learned Additional District Judge also opined that the petitioners being in possession of the shop on the day of its transfer to respondent No.1, became statutory tenants in the shop under respondent No. 1.
This order of remand was maintained in Regular Second Appeal filed by the petitioners in the High Court.
5. Learned counsel for the petitioners argued that respondent No.1 on his own showing had treated the petitioners as sub-tenants under respondent No. 2 and in the absence of consent in writing by respondent No. 1, the41 cannot be treated as tenants as defined in section 2 (1) of West Pakistan Ordinance VI of 1959. The argument is without substance. As rightly pointed out by the learned Single Judge, the petitioners were admittedly possession of the shop at the time of the auction- sale in favour of respondent No. 1. Notices contemplated in section 30 of Act XXVIII of 1958 having` gone to the petitioners, a statutory tenancy was created in their favour, position from which they cannot be permitted to resile.
6. There is no merit in this petition which is hereby dismissed. Caveator's costs will be costs before the Rent Controller.