' 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, by Muhammad Ahmad, respondent No,1, against Noor Muhammad, respondent No,3, as also the petitioner and respondents Nos.2 and 4. It was claimed that Noor Muhammad, respondent No,3, was the tenant while petitioner and respondents Nos.2 and 4 were his sub-tenants in respect of the house in dispute. ' The eviction was sought on the ground of subletting and default in payment of rent.
2. It appears that Noor Muhammad, respondent No,3, as also the other two respondents, namely, respondents Nos. 2 and 4 had conceded the application filed by Muhammad Ahmad, respondent No,1 which was contested by the petitioner alone. On the plea that he was in possession of the property in his own rights under an agreement for sale entered into between him and Muhammad Ahmad, respondent No,1 . On 16th May, 1985, the Rent Controller dismissed the application for ejectment holding that petitioner Muhammad Saeed was not in possession of the property as a tenant but was occupying the same in his own rights under an agreement to sell.
3. Aggrieved by this order, Muhammad Ahmad, respondent No,1, filed an 'appeal which was accepted by Mr. Abdul Hamid Khan Khattak Additional District Judge, vide his judgment dated 11th November, 1985, which has been assailed by the petitioner by filing this constitutional petition.
4. On behalf of the petitioner, three learned counsel, namely, Sheikh Ashfaq Ahmad, Advocate Atta Ullah Chaudhary, Advocate, and Mr. Zahid Hussain Khan, Advocate, have appeared to contend that as no finding, was recorded on issue No,3 relating to the question as to whether petitioner was in possession of the property in his own rights on the basis of the agreement to sell and, therefore, the Additional District Judge has acted illegally in accepting the appeal filed by respondent No,1, particularly when the said issue and been decided against respondent No,1 by the Rent Controller.
5. This contention of the learned counsel, in the circumstances of the case, is not well-founded. It is not denied and stands admitted on the record that a suit for the specific performance of the agreement to sell, on the basis of which the petitioner claimed to be in possession, was filed by him which was dismissed by the trial Court on 22nd February, 1984. This decree was assailed by the petitioner by filing R.F.A. No,48/1984 which too met with the same fate. Thereafter the petitioner took the matter to the Supreme Court but the petition for special leave to appeal filed by him, was rejected on 14th May, 1990. As the petitioner had' failed to establish that there was any enforcible agreement to sell in his favour in the civil litigation, the Additional District Judge was in the rent proceedings, fully justified in not giving any weight to this plea. Furthermore, a finding of fact has been recorded by the Additional District Judge that the property was in possession of Noor Muhammad, respondent No,3, as a tenant and the petitioner and the other respondents were his sub-tenants. The tenancy is also established by the fact that in Civil Misc: No, 3382/90 filed by the petitioner, he himself submitted that he was paying the rent regularly to respondent No,1.
6. The learned counsel for the petitioner relied upon the judgments of the Supreme Court in Rehmatullah v. Ali Muhammad and another (1983 SCMR 1064) and Umar Din v. Additional District Judge, Toba Tek Singh and others (1986 SCMR 1580) to contend that in the circumstances of the case, respondent No,1 should have been directed to have his title declared from the civil Court. This contention is wholly misconceived. Admittedly, the suit filed by the petitioner for specific performance of the agreement has been dismissed by the civil Court and, therefore, there was no necessity for respondent No,1 to have his title established in the civil Court. This plea is also negated by the latest judgment of the Supreme Court in Iqbal v. Mst Rabia Bibi (PLD 1991 SC 242) wherein it has been held that in such matter, the tenant should deliver the possession and then agitate his right.
7. It was next argued that earlier an ejectment petition was filed but was withdrawn by respondent No, 1 and, therefore, a fresh ejectment petition could not have been filed in respect of the same property. This contention is again not well-founded. The earlier ejectment petition was withdrawn on the basis of a compromise. The ejectment petition in the present case was filed subsequently wherein the eviction was sought on the ground of default in payment of rent for a C subsequent period, and also subletting which was not the subject-matter of the earlier ejectment petition. That being so, the principle contained in Section 14 of the Punjab Urban- Rent Restriction Ordinance, 1959, cannot be pressed into service. Section 14 in any case does not apply to cases of withdrawals.
The petition has no force. It is accordingly dismissed, leaving the parties to bear their own costs.