' 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, seeking the eviction of respondent No,3 from a part of property No,15-A, Shah Alam Market, Lahore, which was alleged to be in possession of the said respondents at the rental of Rs,630 per month. The ejectment of respondent No,3 was sought on the ground of default in payment of rent with effect from 1st March, 1976 to 1st December, 1979 and personal need. The learned Rent Controller framed the following issues out of the pleadings of the parties:---
(1) Whether the respondent is a wilful defaulter? OPA.
(2) Whether the petitioner requires 'the property in dispute for his personal use and occupation in good faith? OPA.
(3) What is actual rate of rent? O.P. Parties.
(4) Relief.
2. In support of his case, the petitioner summoned Abdul Majid P.W.1, Jamil Ahmad P.W.2 and Haji Habib-ur-Rehman, one of the petitioners, appeared as P.W.3. In rebuttal, the respondent produced Mushtaq Ahmad R.W.1, Muhammad Aslam R.W. 2, Muhammad Latif R.W. 3, Muhammad Tariq R.W. 4, Muazzam Masood R.W. 5, and himself appeared as R.W.
6. He also brought on record a copy of the income-tax return of the landlord/petitioner as Exh.R.12.
3. The learned Rent Controller vide his order, dated 23rd January, 1988 came to the conclusion that the rate of rent was Rs,430 P.M. And not Rs,630, as alleged by the petitioner. He was also of the view that petitioner had failed to prove that he required the property in question for his own use and occupation. The findings on issue No,1, however, was that respondent No,3 was defaulter and hence liable to ejectment.
4. Aggrieved by that order, the respondent No,3 filed an appeal which was accepted by the Additional District Judge, Lahore, on 19th January, 1989, who reversed the findings of Rent Controller on issue of default and held that the petitioner had failed to establish that the respondent had not paid the rent for the disputed period.
5. In support of this petition, Mr. M.M. Saeed Baig, learned counsel for the petitioners argued that the Additional District Judge had erred in reversing the finding of the Rent Controller on Issue No,1 and holding respondent No,3 not to be a defaulter. The learned counsel emphasized that it was categorically asserted by the petitioner as P.W.3 on oath that the petitioners had not been receiving the rent for the disputed period and as such the onus shifted on the respondents to prove payment of the rent which they failed to do.
6. Learned counsel for the respondent No,3, on the other hand, urged that respondent No,3 had produced sufficient evidence to establish that the rent for the disputed period was paid to the landlord though he did not issue any receipt. He in particular, referred to Exh.12 which is a copy of the income tax return filed by the landlord wherein receipt of rent stood admitted.
7. Disputed period has been paid to the landlord by respondent No,3, the tenant, is primarily one of the fact. Although, it was decided in favour of the landlord by the Rent Controller, but the Additional District Judge for reasons recorded by him and after thorough appraisal of evidence, came to the contrary conclusion. This finding of the Additional District Judge is supported inter alia by the income-tax return of the landlords Exh.R.12.
8. The learned counsel for the petitioners, however, contended that admission in the income-tax return regarding receipt of rent has been sufficiently explained by the landlord while appearing as R.W. 3 and in any case this return related to the year 1975-76 and to the subsequent period.
9. I am afraid; this contention of the learned counsel cannot be accepted. Although it is correct that the return in question pertains to only one year but it is to be seen that while appearing as P.W.3, the landlord in his cross-examination has admitted that in the income-tax record for all the years in question, the rent was shown to have been received. The explanation furnished by him that as per Income Tax Law, he was bound to show the receipt of rent, notwithstanding its non-payment is on the face of it not acceptable.
10. Be that as it may, findings recorded by the Additional. District Judge, are not shown to suffer from any legal or jurisdictional error and no case has been made out for interference in the exercise of Constitutional jurisdiction.
' For the reasons stated above, this petition fails and is dismissed, leaving the parties to bear their own costs.