1. ' Shop No,4 of property under survey No,P-192/A at Satiana Road, Mohallah Fateh Abad, in Faisalabad urban area, belonged to Muhammad Luqman for short, respondent). It was in occupation of Rana Ghulam Muhammad as rent-paying tenant of the owner. Rent payable per mensem was fixed at Rs,175.
2. ' On 18-8-1985, respondent filed an application for ejectment of his tenant from shop in question, on the grounds of rent-default with effect from 1-12-1982 to 31-7-1985 and its further subletting by the tenant to his son, Dr. Muhammad Shaukat Iqbal without prior permission. Dr. Muhammad Shaukat Iqbal shall hereinafter be referred to as petitioner. Both the father and son were impleaded as respondents 1 and 2 to the ejectment petition. They together contested the ejectment application and controverted allegations in it relating to rent-default, and, subletting attributed to them. It was stated that the shop was taken on lease by Rana Ghulam Muhammad from the father of the petitioner who was paid Rs,7,000 as advance rent at the commencement of the tenancy, in the year 1974 and the petitioner was inducted as tenant in the month of October, 1982, with permission of the respondent and his father who agreed to adjust advance rent towards payment of current rent in future. It was asserted that since 1982, petitioner was in sole possession as tenant paying agreed monthly rent to the respondent. It was further asserted that the petitioner had expended Rs,15,000 upon renovating the shop for meeting the requirement of his clinic.
3. ' Pleadings of the parties gave rise to following issues:-
(1) Whether the respondent No,1 is defaulter in payment of rent? OPA.
(2) Whether the respondent No,1 has sublet the shop in dispute to respondent No,2, if so, what is its effect? OPA.
(3) Relief.
4. ' Respondent gave evidence of three witnesses to establish pleas of rent-default and subletting of the shop without his permission. Rana Ghulam Muhammad tenant, recorded statements of equal number of witnesses. Upon review of the material brought on record, Rent Controller found that neither default in payment of rent nor subletting of the shop was established and dismissed the ejectment application on 10-5-1987. In appeal filed by the respondent, lower appellate Court set aside the dismissal order on 23-11-1987 and remanded the ejectment case for proceeding with it afresh on issue No,1 as re-cast in appeal. The issue in its amended form read:-- "Whether respondent No,1 had been paying or tendering rent of the shop to the appellant for the alleged period of default or the said rent was adjusted against any advance allegedly made by the respondents to the appellant."
5. ' Onus of proof of the issue re-cast was shifted to the petitioner. Parties were allowed an opportunity to lead further evidence. Finding recorded on issue No,2 was not touched in the appeal with the observation "that its correctness or otherwise would be open for the parties after the decision of the case". Rana Ghulam Muhammad died on 30-1-1988. Thereupon, his legal representatives including the petitioner were substituted on the record. They submitted an application to the Rent Controller for filing of amended better statement for elucidating an alleged ambiguity in the written statement filed earlier in the ejectment case. Amendment proposed was to the effect that the landlord had accepted the advance-rent in the sum of Rs,7,000 on behalf of and for benefit of the petitioner and agreed for its re-payment at the end of the tenancy but running monthly rent was payable separately and the same was being paid regularly. On 3-4- 1988, application for amendment for filing of amended better statement was turned down by the Rent Controller. Respondent relied on evidence recorded in pre-remand adding only documents to it. Petitioner gave more oral evidence to prove timely payment of rent by him. Additional evidence consisted of statements of Muhammad Rafi, Javed Iqbal, and, also documents. Upon survey of evidence on record, Rent Controller concluded that rent-default for the disputed period was established, and, in consequence to that conclusion directed ejectment of the petitioner. Lower appellate Court agreed with the finding on rent-default, and, dismissed the appeal. Agreed finding on rent-default is under challenge in this Court at the instance of the petitioner. Initially, petitioner filed second appeal but upon his request, it was treated as a petition under Article 199 of the Constitution. It was contended that concurrent finding on rent-default was not sacrosanct and immune from scrutiny as it was reached in clear disregard of material evidence, inasmuch as, evidence produced by the petitioner in pre-remand proceedings was not considered in the Courts below. It was further contended that remand for a trial anew was defective because in terms of section 15(6) of the Rent Ordinance, the Court was enjoined either to hold enquiry itself or direct its holding by a Rent Controller but in adopting the latter course it was obliged to keep the appeal on its own file and remit the case only for taking additional evidence. Learned counsel argued that provision for a further enquiry under section 15, by the Rent Controller, was in the nature of a remand contemplated in Order XLI, rule 25, Civil Procedure Code. He fortified his contention by relying upon a judgment of my learned brother, Malik Muhammad Qayyum J., in Abdul Aziz and another v. Ata Muhammad and another 1990 CLC 884. I would take up the second point first, because it was purely a legal question touching on the powers of the appellate authority to direct remand for a further enquiry. Remand is an inseparable part of jurisdiction in appeal. In absence of an express prohibition, appellate Court/authority can make an order for remand of the case for its trial anew. I am, therefore, somewhat reluctant to subscribe to the broad statement of law advanced at the Bar by the learned counsel. The judgment of my learned brother did not go to that extent and did not altogether exclude the possibility of remand of the case by the appellate authority acting under section 15(6) of the Rent Ordinance. In Muhammad Baqa Ullah Khan v. Mian Muhammad Rashid PLD 1961 (W.P) Lahore 638, SA. Mahmood, J., on powers of remand under the Rent Ordinance, in para 4 of the judgment at page 641 observed:- "With regard to the first contention it is true that the West Pakistan Urban Rent Restriction Ordinance does not specifically provide for remand of a case on appeal, but by reason of section 141 of the Code of Civil Procedure the provisions of the Civil Procedure Code are clearly applicable. It provides that the procedure provided in the Code in regard to suits shall be followed as far as it can be made applicable, in all proceedings in any Court of Civil jurisdiction. I respectfully agree with the view taken by Shabir Ahmad, J. In Muhammad Azeem and others v. Muhammad Nawaz and others PLD 1961 Lah. 137, that the proceedings before the Rent Controller under the West Pakistan Urban Rent Restriction Ordinance, 1959, are proceedings of a civil nature and as such section 141 of the Civil Procedure Code, which is comprehensive, can be invoked for regulating the procedure with regard to the trial of applications presented to the Rent Controller under the Ordinance. Similarly, the provision of the Civil Procedure Code relating to remand could be availed of by the Appellate authority in this case. The power to remand a case on appeal is a necessary incidence of appellate jurisdiction. I, therefore, find no force in this contention."
6. Number of situations could easily be visualized, where re-trial was inevitable and remand of the case, the only appropriate course for the appellate authority to adopt. Its propriety, however, is a different matter. Therefore, remand did not suffer from absence of jurisdiction in the authority making it. Further, remand order was not challenged in the earlier round. Rather, it was accepted by the petitioner who gave more evidence in support of his plea. Therefore, remand order is no more questionable vis-a-vis its legality or propriety. As for the first contention, it is correct that no express reference to pre-remand evidence led by the petitioner is available in the impugned decisions but that was not indicative of the Courts not looking into it. Omission to refer to a particular part of record was hardly a ground to canvass that the Court was not alive to it.
7. Therefore, contention based on misreading or non-consideration of evidence was not sustainable.
8. Neither the rate of monthly rent nor the tenancy was in dispute. The tenancy as also the payment of rent by the petitioner were oral. It is in evidence that till the month of June 1990, receipts were issued to evidence payment of rent, but thereafter, no receipt was issued by the respondent.
9. ' Not a single receipt has been put on record. Onus to prove payment, discharge or satisfaction of liability lay on the person alleging it. Therefore, the issue covering the plea of rent-default was rightly re-cast in appeal and onus of its proof correctly shifted to the petitioner. The question whether the rent was orally paid for the disputed period and whether sufficient evidence existed for its proof were questions of fact not susceptible to a further review in the constitutional petition for being upset for a substituted finding. Mere oral statement of the petitioner or for that matter his father and a stray witness of the locality in case of denial on oath by the respondent was insufficient to prove payment of rent. Decision in case of Allah Din v. Habib PLD 1982 SC 465 materially helps. The Courts below were possessed of jurisdiction to decide the disputed question of fact. They appraised the evidence and after weighing and balancing it found it incredible for placing reliance upon it to hold payment of rent proved. Merely that a different view of record was possible was not a ground to characterise the impugned decisions as without jurisdiction or without lawful authority. On the contrary, the evidence on record gave enough support to the conclusions arrived at on its basis in the Courts below. Therefore, concurrent findings of fact by the two lower Courts even if they were somewhat erroneous which they were not, could not be upset in second appeal or writ petition. Case of Abdul Majid and others v. Khalil Ahmad PLD 1955 Federal Court 38 may with advantage be referred to. As for the sum of security, there was no proof on record excepting an averment in the written statement and the oral testimony of the petitioner.
10. This kind of material was considered insufficient for returning a favourable finding in favour of the petitioner. In this view of the record, impugned decisions were neither infirm nor faulty. The case has no merit in it, whatever be its form, a second appeal or a writ petition. It is, accordingly, dismissed in limine. Subject to payment of agreed monthly rent by the due date, petitioner is allowed two months to wind up and vacate.