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Petitioner: MUHAMMAD SAEED VS Respondent: MUHAMMAD ASHRAF
1988 S C M R 1883
1988 S C M R 1883
Present: Muhammad Afzal Zullah, Javid Iqbal, Ghulam Mujaddid Mirza and Saad Saood Jan, JJ
CIVIL APPEAL No.93 OF 1988
CH.MUHAMMAD SAEED‑‑Appellant versus MUHAMMAD ASHRAF and another‑‑Respondents
(On appeal from the judgment and Order of the Lahore High Court, Lahore dated 12‑4‑1986 in W.P. No.2050 of 1983).
CIVIL APPEAL No.94 OF 1988
Ch. MUHAMMAD SAEED‑‑Appellant versus ADDITIONAL DISTRICT JUDGE and another‑‑Respondents
(On appeal from the judgment and order of the Lahore High Court, Lahore dated 20‑4‑1986 in Writ Petition Nos.1411 and 2165 of 1982).
CIVIL APPEAL No.96 of 1988
Ch. MUHAMMAD SAEED‑‑Appellant versus ADDITIONAL DISTRICT JUDGE and another‑‑Respondents
(On Appeal from the judgment and order of the Lahore High Court, Lahore in W.P. No.2165/82 dated 20‑4‑1986).
Civil Appeals Nos.93 to 95 of 1988, heard on 29th June, 1988.
(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑
‑‑‑S.13‑‑Constitution of Pakistan (1973), Arts.199 & 185(3)‑‑Default in payment of rent‑‑Constitutional jurisdiction‑‑Interference with exercise of discretion by special forum under Rent Ordinance‑‑Leave to appeal granted to examine whether High Court, in its Constitutional jurisdiction, could have interfered with the exercise of discretion by special forum in favour of tenant, on question of default in payment of rent.
(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑
‑‑‑S.13‑‑Ejectment on ground of default set aside in writ jurisdiction‑ Order impugned‑‑Record showing that deposit of rent was made in the name of father of petitioner‑landlord‑‑No ill‑will between present between father and son‑‑Payment considered as valid discharge of tenants' liability‑‑Record showing no other default‑‑Appeals being without substance, dismissed.
Muhammad Ilyas Khan, Advocate Supreme Court and Ch.M.Z. Khalil for Advocate‑on‑Record for Appellant (in Civil Appeals Nos.93‑9,5 of 1988).
S.M.Masud, Advocate Supreme Court and Sh.Masud Akhtar, Advocate‑on‑ Record. for Respondents (in all the Appeals).
Date of hearing: 20th June, 1988.
JUDGMENT
MUHAMMAD AFZAL ZULLAH, J.‑‑These three appeals through leave of this Court arise out of Rent Restriction eviction application filed by a landlord against different tenants. They are directed against the judgments of the Lahore High Court, whereby Constitutional petitions against the orders of eviction of respondents‑tenants were allowed and the said orders set aside.
Leave to appeal was granted to examine whether the High Court could have interfered with the question of exercise of discretion by the special forum concerned in favour of respondents‑tenants, on the question of default in payment of rent.
The arguments of the learned counsel for the appellant and the relevant part of order for grant of leave to appeal are reproduced below: ‑
"The learned counsel, inter alia, has contended: that the deposit of rent in the name of the father of the petitioner being a payment to a wrong person, the High Court should not have exercised Constitutional jurisdiction; that; late deposit of other rent having been established, the High Court could not have exonerated the tenants in this behalf in the exercise of its Constitutional Jurisdiction.
After hearing the learned counsel, we do not consider it a fit case for grant of leave to appeal on the first point, noted above, as in the peculiar circumstances, the recipient of the rent via‑a‑via the point raised is the father of the petitioner. There being no ill‑will between them, we will consider it as payment to the petitioner. The question, however, whether the High Court should have exercised its Constitutional Jurisdiction with regard to the remaining default in payment of rent by the respondents/ tenants and other questions raised 'in these petitions, require examination. Leave to appeal is, accordingly granted."
We have examined the question of default in payment of rent in each case with reference to the period of default therein. While granting leave to appeal our impression was that leaving aside the payment made to the father of the appellant, some default would still remain actionable. That being so, it needed to be determined whether the High Court notwithstanding this remaining default, could substitute its own discretion in Constitutional jurisdiction for one exercised by the special lower forum. But on deeper examination of the facts it has been revealed that in one case, there was no default as admitted by the appellant's Counsel before the High Court, if the payment to the father of the appellant is treated as valid discharge of tenants' liability. In the other two cases, the High Court made reference to the record before it (several annexures) showing that if the position with regard to payment to the father remains the same, there was no default left to be taken note of. Not only this, the learned counsel for the respondents with bundle of receipts in his hands, threw a confident challenge to the learned counsel for the appellant with regard to the aforestated position regarding payment of rent.
Learned counsel for the appellant could not meet this situation particularly when, it was found that all the necessary documents which were before the High Court had not been filed on the record.
Learned counsel for the appellant however, reiterated his argument advanced and rejected at the time of grant of leave to appeal; namely, that payment to the father of the appellant was not a valid tender of rent. This argument was rejected in the said order after due consideration and we, accordingly, declined to re‑open this question.
In the light of the foregoing discussion, there is no substance in these appeals. They are dismissed with costs.
M.I./M‑530/S Appeals dismissed.