WALT MURAMMAD KHAN, .1.--Through this constitutional petition Faqir Muhammad tenant/ petitioner has called in question the order of the learned District Judge, Kohat dated 12-3-1988, under his powers as Appellate Authority under his provisions of West Pakistan Urban Rent Restriction Ordinance, 1.959 whereby he accepted the appeal of Akhtar Ali and others landlords/respondents herein against the order dated 23-2-1987 passed by the learned Rent Controller, Kohat whereby their petition for the eviction of the tenant petitioner from the suit Serai bearing No.T-1054-55/C-1948 situated in Kohat City, was dismissed.
2. The background of the case is that the landlords respondents are owners of the suit property and that the tenant petitioner is occupying the same as tenant under them; that the tenant petitioner defaulted in the payment of rent since 1967 when they became the owners of the suit property' through purchase vide registered sale deed No. 14 dated 26-1-1967; that the landlords/respondents require the suit premises for their bona ride personal use for the purposes of installing soap factory therein for which they had already acquired the machinery etc. Since long; that the tenant petitioner has damaged the suit property and that he has also sublet the same to Sheikh Muhammad Akbar without their consent. The tenant petitioner contested the petition before the Rent Controller and in his written statement denied the allegations of the landlords respondents in toto. Keeping in view the allegations and counter allegations of the parties, the learned Rent Controller framed the necessary issues in the case, recorded evidence pro and contra thereon which were produced by the parties and ultimately vide his impugned order, dismissed the petition of the landlords. Not satisfied with the same Akhtar Ali and others respondents Nos.1 to 14 herein preferred appeal before the District Judge, Kohat which found favour with him and he vide his order dated 12-3-1988, set aside the order of the Rent Controller and passed the order of eviction of the tenant petitioner from the suit property in favour of the landlords/respondents. Hence the instant writ petition, there being no other remedy available to the writ petitioner.
3.We have heard learned counsel for the parties and have perused the record of the case with their assistance.
4. The learned counsel for the tenant petitioner mainly argued that the tenant petitioner was not a wilful defaulter inasmuch as prior to the purchase of the suit Sarai by Akhtar Ali and others respondents Nos.1 to 14, the rate of rent was Rs.33 and that since they were not ready to accept the rent at the said rate he remitted the same through money order (receipts on the file) which were also refused. However, when he was confronted with the statement of his client at (RW2) wherein he had admitted in unequivocal words that he had neither paid nor tendered rent after 1974 when the writ petition No.115/71 decided on 13-5-1974 regarding the title to the suit property was finally decided (copy Ex. AW3/8 on the file), he had no explanation regarding the non-payment of rent thereafter. Nevertheless, he tried to explain that the High Court had declared the respondents Nos.1 to 14 as owners of the suit property subject to payment of Rs.3200, the mortgage amount to the transferees to whom the mortgagee rights had been transferred under the relevant Settlement Scheme by the Settlement Authorities and that since the tenant petitioner was not aware of any redemption by the landlords/respondents Nos.1 to 14, the non-payment of rent was not intentional.
This contention is equally fallicious because, on deposit of the mortgage amount and passing of the order of redemption by the Settlement Authorities, the landlords/respondents Nos.1 to 14 submitted an application to the Settlement Officer /Collector for the delivery of possession to them, impleading Faqir Muhammad tenant/petitioner herein as well as Sheikh Muhmmad Akbar, the alleged sublettee, who contested the same and pleaded that they were occupying the premises under them and that their eviction was barred under the provisions of West Pakistan Urban Rent Restriction Ordinance, 1959 except under certain special conditions. This plea was accepted by the learned Settlement Officer and he vide his order dated 30-5-1979 (copy Ex.AW3/10) dismissed the execution application for lack of jurisdiction on account of the existence of the relationship of landlord and tenant. Obviously, the tenant/petitioner not only got the knowledge but attorned to the landlords as their tenant as well. There was absolutely no justification for him to commit default in the payment of arrears of rent and further rent after 30-5-1979. It is even not alleged much less proved that the rent due was paid or tendered to the landlords after redemption of the suit property and consequently the tenant/petitioner was not only proved to be a defaulter but a wilful defaulter as well. The finding of the learned District Judge on this score was legally justified and does not call for interference.
5. As regards the finding of the learned Distt: Judge (Appellate Court) regarding the bona fide personal use of the landlords/respondents, the learned counsel for the tenant/petitioner argued that none of the landlords appeared as a witness to state on oath regarding their claim for bona fide personal use thereby depriving the tenant/petitioner an opportunity of cross examining him on the said crucial point and that the learned Rent Controller had rightly exercised his discretion to decline the said prayer of the landlords, which was illegally reversed by the learned appellate Court. The perusal of the file shows that Ashab Ali Banghsh, holding special power of attorney, Ex.
AW3/1 on behalf of landlords stated on oath that the landlords require the suit premises for their bona fide personal need. The tenant petitioner in his Court statement also conceded that the landlords might be in need of the suit premises. The learned counsel for the landlords/respondents Nos.1 to 14 cited the case Arshad Umar and Another v. Begum Nazrul Askari' reported as PLD 1985 Supreme Court 38. In which it was held that the failure of landlady and her son to appear before Rent Controller `" and offer themselves for cross examination, is not fatal to their plea that they required the suit premises in good faith for their personal occupation and use. In the cited case the son-in-law of the landlady had appeared as a witness and testified to the bona fides of the landlady as well as her son. In the case before us Ashab Ali Banghsh is not only the special attorney of the landlords/respondents Nos.1 to 14 but is the son of the landlord/respondent No.1 as well, who is supposed to be fully conversent with the facts and circumstances of the case. The learned District Judge exercising the powers of appellate Court under the West Pakistan Urban Rent Restriction Ordinance, 1959 possessed all the powers which the it Controller could exercise and he, by setting aside the finding of the Rent Controller on the issue of personal need has committed no legal or factual error but corrected the faulty decision of lower forum. Consequently, relying on the said authority of the august Supreme Court we do not feel inclined to disturb the C finding of the learned District Judge, Kohat on the ground of bona fide personal use as well.
5. The upshot of the above discussion is that there being no illegality or material irregularity in the impugned order of the learned appellate Court (District Judge, Kohat), we find no merit in the instant constitutional petition anddismiss the same, with no order as to costs.