' This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 arises out of an application under section 13 of the Punjab Urban Rent Restriction Ordinance, 1959 filed by Mst.
Daulat Bibi petitioner on 8th September, 1979 against Gleen Khan respondent No,1 herein seeking his eviction from plot of land measuring about 5 Marlas situated on Circular Road Mohalla Rangpura Chowk, Sialkot City on the ground that it was required by her bona fide and in good faith for the use of her son Rehmat Ali. In the written statement filed by him, respondent No,1 controverted the allegations about requirement for personal use and also raised certain preliminary objections. On the pleadings of the parties the Rent Controller framed the following seven issues:--
(1) Whether the petition is not maintainable in respect of open land? O.P.R.
(2) Whether the suit property is not partitioned, if so, then the petition is not maintainable? O.P.R.
(3) Whether the notice under section 13-A was served upon the respondent and it was not required under law? O.PA.
(4) Whether the respondent has made legal improvements as alleged in para. No,4 of preliminary objection? O.P.R.
(5) Whether the petitioner requires the suit premises bona fide for her personal use and occupation? O.P.A.
(6) Whether respondent has effected alterations and additions in the suit property without the permission of landlord, if so, with what effect? O.PA.
(7) Relief ' In support of her case petitioner examined Abdus Salam as A.W.1, Rehmat Ali as A.W.2, Haji Muhammad Abdullah as A.W.3 and appeared herself as A.W.4. Respondent No,1 on the other hand produced Bashir Ahmad R.W.1, Muhammad Hafeez R.W.2 and appeared himself as R.W.3.
2. By his order dated 18th of May, 1983 the Rent Controller decided all the issues in favour of the petitioner and directed the eviction of respondent No,1 from the plot in dispute. As regards the maintainability of petition it was held, that since the plot was being used by respondent No,1, for business purposes it was 'rented land' within the meaning of section 2(f) of the Punjab Urban Rent Restriction Ordinance, 1973 and, as such, the Rent Controller had jurisdiction to try the ejectment petition. Under issue No,5 it was observed that neither the petitioner nor her son Rehmat Ali were in occupation of any other property in Sialkot and the plot in possession of the respondent was required for the use of Rehm at Ali.
3. Aggrieved by this order the petitioner filed an appeal which was accepted by an Additional District Judge, Sialkot who reversed the finding of Rent Controller on issue No,5 and held that the plot was not required by the petitioner for the use of her son.
4. Mr. Muhammad Nasrullah Waraich, the learned counsel for the petitioner, contended that the Additional District Judge while reversing the finding of the Rent Controller has acted contrary to the law declared by the Superior Courts and has misread the record.
5. Ch. Muhammad Farooq, the learned counsel appearing on behalf of respondent No,1 apart from supporting the finding of Additional District Judge on issue No,5 argued that the application for ejectment filed by the petitioner before the Rent Controller was not maintainable and the findings of the Rent Controller on issues Nos.1 and 2 were not correct. In reply to this argument, it was urged by Mr. Muhammad Nasrullah Waraich that as respondent No,1 had not challenged the findings of the Rent Controller on issues Nos.1 and 2, before the learned Additional District Judge, it was not open to him to re-agitate this matter before this Court.
6. There is considerable merit in the contention of the learned counsel for the petitioner that while reversing the finding of the Rent Controller on issue of personal use, the Additional District Judge has acted contrary to law declared by the superior Courts. The main ground on which the petitioner was non-suited by the Additional District Judge was that Rehmat Ali for whose use the property was required was proceeding abroad and, therefore, the need cannot be said to be bona fide. This finding clearly runs counter to the authorities of the Supreme Court in Fazal Azim and another v. Tariq Mahmood and another (PLD 1982 SC 218) and Saeed Ahmad v. Tariq Nazir Butt and another (1987 SCMR 220) where it has been ruled that the fact that the person for whose use the property was required had gone abroad was of no relevance or consequence. There is nothing on the record to show that Rehmat had no intention of returning to Pakistan at all. As a matter of fact on. 26th of March, 1985 at the time of admission of this petition .Rehmat Ali had appeared in person before that Court. The judgment of the Additional District Judge is clearly not sustainable.
7. Now adverting to the objection of the learned counsel for the respondent as to the maintainability of the ejectment petition, it is to be seen that issues Nos.1 and 2, had been decided by the Rent Controller in favour of petitioner-landlady. There is nothing in the judgment of the Additional District Judge to show that the findings on these issues were challenged before him during the course of arguments. In these circumstances, it is not open to respondent No,1 to raise these points now. It has been held by this Court in Mumtaz Begum v. Sh. Inayat Ullah PLD 1969 Lah.
16 and Saleh Muhammad v. Abdul Manan and another (1984 CLC 3321) that if an argument has not been noticed in the impugned judgment, the presumption is that that point was never raised before that Court. It is also to be seen that no affidavit either of the counsel or the respondent specifically to the effect that these points were raised before the Additional District Judge, has been filed in this Court. It was submitted by the learned counsel for the respondent that as Ch. Sana Ullah, Advocate who appeared on behalf of the respondent had died his affidavit could not be procured. It has not however, been explained as to why his affidavit was not filed, earlier. In these circumstances respondents 1 and 2 cannot be allowed to challenge the finding of the Rent Controller on issues Nos.1 and 2.
' As a result of what has been stated above this petition succeeds and the judgment of the Additional District Judge, dated 3-10-1984 is declared to be without lawful authority and of no legal effect with the result that the order of the Rent Controller dated 18th May, 1983 stands restored with no order as to costs.