RIAZ AHMAD, J.- This Writ petitioner has been filed to. Assail the order dated 5th of June, 1991 pased by an Additional District Judge, at Faisalabad, whereby, the order of the Rent Controller dated 2nd of October, 1988 was reversed, as a consequence of which, the petitioner as tenant under the respondent was directed to vacate the premises in his possession.
2. The background of the litigation between the parties is that the respondent instituted an application under section 13 of the Rent Restriction Ordinance seeking a direction to the petitioner to vacate the house situated in 1 Peoples Colony at Faisalabad. It was alleged by the respondent that the petitioner had paid rent only for the first three months after the commencing of tenancy and, thereafter, for 45 months, he had not paid any rent. The respondent also stated ^ that the house was required in good faith for her personal use. It was further alleged that the petitioner had damaged the floors, walls, windows and doors of the house to diminish its value.
The petitioner resisted this application and raised preliminary objection as to the maintainability of the application, non existence of the relationship of landlord and tenant between the parlies, lack of jurisdiction on account of non service of notice as required under section 13-A of the Rent Restriction Ordinance. On merits, he contested and controverted the allegations enumerated in the petition and thus, on the pleadings of the parties, the following issues were framed:- 1) Whether the relationship of landlord and tenant does exist between the parties?
2) Relief The learned Rent Controller, after recording the evidence rejected the ejectment petition filed by the respondent and as stated above, an appeal was filed against the aforesaid order which was allowed vide order impugned in this writ petition.
I have gone through both the judgments and I have also heard both the learned counsel at length.
3. The claim of the respondent was based on the sale deed ExA1, executed in her favour by the Housing and Physical Planning to the Government of Punjab. The petitioner on the other hand, relied upon agreement to sell R.I. Allegedly executed by Arif Shahzad as an attorney of Ghulam Mustafa Shah, the original allottee of the plot, in favour of Aleem Pervez on 5th of February, 1979.
However, the petitioner did not place on record, the power of attorney or any other proof of the ownership of the plot, in respect of the person who executed the said power of attorney referred to in R.I. No evidence was led to prove that ALeem Pervez son of the petitioner had ever acquired any title on the basis of R.I. During the course of arguments, it also transpired, that suit for specific performance of the agreement to sell R.I. Was dismissed by civil court and the appeal against the aforesaid judgment and decree had also met the same fate.
In the courts below as well as before this court, it was vehemently argued that the construction on this house was raised by the respondent which was controverted by the petitioner and the petitioner alleged that the same had been raised by his son namely Aleem Pervez.
4. I have also perused the record. RW 1 Ehsan ul Haq, a friend of Aleem Pervez, son of the petitioner, who in the witness box stated that he had an adjustment with Aleem Pervez during the construction by him over the suit plot in respect of the joint wall of his contiguous house in the year 1979 but in cross; examination, RW 1 admitted to have only occupied the said contiguous house as a tenant and that too 4/5 years before, his appearance as a witness. The assertion about the adjustment is thus vague and the learned Addl: District Judge rightly discarded his evidence.
Similarly, RW 2 Jan Muhammad stated that he had prepared some building affixture and also stated that he had given receipts for Rs. 10,000/- to Rs. 12,000/- but no such receipt was placed on the record. RW 3 also did not elucidate about the common wall. He, however, admitted that he was a friend of Aleem Pervez* the son of the petitioner. RW 4 happens to be an employee of an Electrician, his statement is of no value because no receipt or bill has been placed on the record.
RW 5 Subedar Abdul Hameed, in the opinion of the Addl: District Judge was readily available witness and he had not stated anything as to the construction. RW 7 is the attorney of the petitioner who has stated that the plot was vacant and now complete house exists thereon which was constructed in 1980 but he did not state anything as to who raised construction and who bore the expenses. However, he admitted that electricity and sui gas connections were in the name of Arif Shahzad and the plan of the house was also sanctioned in the name of Arif Shahzad. He denied to have known anything about the agreement to sell in favour of the respondent and that it is possible that in the record of the Department, the respondent may be owner. It was also stated by him that plot had been got transferred to its original allottee in favour of the respondent.
On the other hand, the evidence of the respondent shows that the house was constructed by her.
She placed on the record site plan and sanction order in the name of original allottee Ghulam Mustafa Shah. She also placed on recorded a certificate for the installation of water connection in the name of Arif Shahzad. In respect of the tenancy, the respondent also stated that seven months before, a Punchayat was convened at the house of Ghulam Muhammad Niazi and in the Punchayat, the petitioner agreed to vacate the house but he kept on avoiding and he also admitted therein to be the tenant under the respondent. AW 2 stated that the respondent was the owner of the house and he had constructed and supervised it and the petitioner and her family were living there as tenant. AW 3 Zulfiqar Ali stated about Punchayat which was convened on the return of the respondent from Qatar. Wherein although having promised to vacate, yet the petitioner did not vacate the house. He also stated that the rent was Rs. 1000/- and for the first 2/3 months, the rent was paid to Arif Shahzad.
5. Although, while exercising constitutional jurisdiction, this court is not a court of appeal and is only concerned to sec whether the order passed is without lawful authority or jurisdiction. With utmost care and after perusing the entire record, I am of the view that the learned Addl: District Judge rightly held the petitioner as tenant because in rebuttal, no evidence was led by the petitioner and the entire evidence led by him revolves around the construction. Even the witness j of the petitioner could not state that in what capacity, the petitioner and his son j Aleem Pervez were occupying the house. RWs 1, 3, 5 & 6 have admitted their j interestedness and relation with the petitioner while RW 7 is the son of the petitioner.
6. The entire evidence led by the petitioner seems to be an after thought. It is strange to note that the petitioner did not himself appear fn the witness box to rebut the evidence led by the respondent. The failure on the part of the petitioner to enter into the witness box goes a long way to reflect upon his conduct. Further more, it does not lie in the mouth of the petitioner to deny the tenancy as under law, he is bound to do so. The preliminary objections raised by the petitioner as to < the absence of the service of notice under section 13-A also reflects upon his conduct.
The up shot of the above discussion is that the order impugned is not open to I exception and cannot be interfered with by this court in exercise of its j constitutional jurisdiction. Hence this petition fails and is hereby dismissed.