AJMAL MIAN, J.---Leave to appeal is sought against the judgment dated 11-3-1990 passed by a learned Single Judge of the Lahore High Court, Rawalpindi Bench, in FA.O.No.14 of 1985 filed by the petitioners against the order dated 1-3-1985 passed by the learned Rent Controller, Rawalpindi Cantonment, directing the petitioners to vacate the premises within 45 days, dismissing the same and maintaining the above order of the Rent Controller.
2. The facts to be noted are that respondent No.1 who claimed to. Be the transferee of the upper portion of the property in dispute filed an eviction application against respondent No.2 on the ground of default since June, 1978, on the basis of averment that after the transfer of the above property, respondent No.2 became the statutory tenant. During the pendency of 'the above eviction application, the petitioners filed an application to be impleaded as parties in place of respondent No.2 on the ground that they were occupying the premises as the transferees thereof and that respondent No.1 had no right to get the same vacated. A preliminary issue was framed by the learned Rent Controller on the question of relationship. He after recording the evidence by a detailed order dated 2-1-1985 held that the upper portion of the building bearing No. 2782 and 2783 was transferred to respondent No.1, while its ground floor having No. 2777 to 2781 stood transferred to the petitioners. Consequently he held that the petitioners were the tenants of the respondent No.1. Upon the filing of a miscellaneous application by respondent No.1 for passing of eviction order against the petitioners on the ground that they had deliberately denied the relationship of landlord and tenants and thereby admitted the default, the learned Rent Controller by an order dated 11-3- 1985 ordered the ejectment which was assailed in the aforesaid FA.C., which was dismissed by a learned Single Judge of the Lahore High Court. The petitioners have, therefore, filed the present petition for leave to appeal.
3. In support of the above petition, Mr. Bashir Ahmad Ansari, learned A.S.C. Appearing for the petitioners, has vehemently urged that the Rent Controller and the High Court were not justified in holding that the upper portion of the building in possession of the petitioners was transferred to respondent No.1 as there were number of documents to indicate that the property transferred to respondent No.1 was different from the property in occupation of the petitioners. The above contention seems to be devoid of any force, as the High Court besides relying upon P.T.O. In favour of respondent No.1 and Deputy Settlement Commissioner's order dated 13-9-1971, placed reliance on a judgment and decree of a Civil Court Exh. P/3, which was passed in a suit to which respondent No.1 and the petitioners were parties, in which as a finding of fact it was recorded that the upper portion was transferred to respondent No.1. However, it was vehemently urged by Mr. Bashir Ahmad Ansari that the above finding recorded by the learned Civil Judge could not have been relied upon by the learned Rent Controller and the High Court as the suit filed by respondent No.1 was dismissed and, therefore, the petitioners could not have filed an appeal against the above finding of fact recorded by the learned Civil Judge. It is true that the suit was dismissed by the learned Civil Judge through the judgment and decree dated 8-12-1981 but on issue No.2 the learned Civil Judge had recorded the finding of fact against the petitioners. In our view, the petitioners were entitled to assail the above finding of fact recorded against them in an appeal notwithstanding the fact that the suit was dismissed. The learned Rent Controller and the High Court could not have overlooked the above finding of fact recorded by a competent Court, as both were exercising the jurisdiction under the Rent Restriction Ordinance and not as Civil Courts. The petition has, therefore, no merits.
Leave is accordingly refused.