121 (DB) Peshawar
W.P. No. 3099 of 2011, decided on 3.12.2014.
----Art. 199--Urban Rent Restriction Ordinance, (VI of 1959), S. 13--Constitutional petition--Default in payment of rent--No relationship of landlord and tenant--Question of--Whether relationship of landlord and tenant existed between parties--Determination--No receipt regarding payment of rent was produced--Validity--A person may be owner but not a landlord--Pivotal question for determination before Controller is that of relationship of landlord and tenant--Opinion regarding existence of relationship of landlord and tenant on decision of 'Musalehati Committee' where petitioner is stated to have admitted factum of tenancy in respect of suit house--Heavy burden lies on landlord to prove decision of 'Musalehati Committee' but it is with dismay that he has not examined even a single witness of jirga to substantiate his plea regarding its decision--Appellate Court by forming opinion regarding existence of relationship of landlord and tenant on decision of 'Musalehati Committee' in attending circumstances of case has landed into fields of error--Petition was allowed.
[Pp. 123 & 124] A, B & C
Mr. Naveed-ur-Rehman, Advocate for Petitioner.
Mr. Arshad Jamal, Advocate for Respondents.
Date of hearing: 3.12.2014.
Syed Afsar Shah, J.--Through the instant writ petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, Fazal Raziq, the petitioner has made a prayer that:
"On accepting the petition in hand the impugned order may kindly be held null and void and of no legal effect and on setting it aside the order of the learned Rent Controller, Mardan dismissing the rent petition may kindly be restored with costs throughout".
2. The facts leading to the filing of the instant petition are that on 29.6.2010, Haji Sher Zaman, the respondent (landlord) filed a petition for ejectment of the petitioner, Fazal Raziq (tenant) from a house situated in Mohallah Aziz Abad, Shamsi Road, Mardan under Section 13 of the Urban Rent Restriction Ordinance, 1959 mainly on the ground of default in the payment of rent. When put on notice by the learned Rent Controller, the petitioner/tenant contested the petition inter alia, on the ground that there is no relationship of landlord and tenant between the parties. In view of the allegation and assertion of the parties, the learned Rent Controller framed a preliminary issue regarding the existence of relationship of landlord and tenant, whereafter parties were allowed to adduce their evidence which was recorded and finally dismissed the petition vide its judgment dated 17.5.2011 and aggrieved of the same the respondent filed appeal in the Court of learned Additional District Judge-II, Mardan. The learned appellate forum vide its judgment dated 20.9.2011 by allowing the appeal set aside the judgment of the learned lower Court and as a consequence thereof accepted the ejectment petition which is now impugned by the petitioner by filing the instant writ petition.
3. We have heard arguments of the learned counsel for the parties, gone through the record of the case and perused the relevant law on the subject as well.
4. The moot question which falls for determination before this Court is to see as to whether the relationship of landlord and tenant exists between the parties and in which respect we would like to refer to the evidence and record available on file. It is the claim of the respondent that initially the suit house was given to the mother of the petitioner on lease on payment of rent at the rate of Rs.500/- per month, that for the last 3½ years the petitioner had stopped the payment of monthly rent. That later on in order to resolve the controversy between the parties a Jirga was convened where the petitioner admitted the factum of tenancy. Appearing as PW-1 attorney of the respondent has stated in support of the petition, however, during the cross-examination he admitted that he could not produce any receipt whatsoever, regarding the payment of rent. He has also admitted that he could not produce any witness in whose presence the rent has every been paid to him by the respondent. According to him not a single utility bill with respect to the premises in dispute is on their name. Rooh Ullah who has been examined as PW-2 has admitted that he cannot specify the date, time and place on which they have received the rent from the petitioner in respect of the suit premises. While going through the record of the case one could reach to an irresistible conclusion that there is nothing on the same which could show the payment of rent by the petitioner to the respondent. There is no tenancy agreement between the parties. The learned appellate forum by adhering to the question of title has misconceived the situation in that in the matters of ejectment question of title is absolutely irrelevant. By now, it is more than settled that a person may be owner but not a landlord. Similarly, he may be landlord but not an owner. The pivotal question for determination before the Controller is that of relationship of landlord and tenant. In the case of "Anwar Khan vs. Abdul Munaf" (2004 SCMR-126), it was observed by their Lordships that question of title has no relevancy in proceedings in rent cases as the pivotal point needs determination would be the relationship of landlord and tenant. The above view was reiterated by the august Supreme Court in the case of "Amin and others vs. Hafiz Ghulam Muhammad and others" (PLD 2006 SC-549), where it was ruled by the apex Court that in ejectment matter; the question of title is not relevant. A similar question was attended by this Court in the case of "Muhammad Daud vs. Mst. Surriya Iqbal and another" (PLD 2000 Peshawar 54), where the views of the apex Court were followed by observing that:
"the question of title would have no relevance in the proceedings in rent case before the Rent Controller as there the point of existence of relationship of landlord and tenant would be the determining factor and the Rent Controller can hold whether the relationship of landlord and tenant exists between the parties after recording pro and contra evidence".
5. Again as is evident from the record, the learned appellate forum has formed his opinion regarding the existence of relationship of landlord and tenant on the decision of 'Musalehati Committee' where the petitioner is stated to have admitted the factum of tenancy in respect of the suit house. Appearing as RW-1 Fazal Raziq, the petitioner has disowned the decision of the 'Musalehati Committee' on the ground that his signatures were obtained on a blank paper on
condition that the controversy would be resolved in accordance with Shariah. Heavy burden lies on the respondent/landlord to prove the decision of the 'Musalehati Committee' but it is with dismay that he has not examined even a single witness of the Jirga to substantiate his plea regarding its decision. The learned appellate Court by forming opinion regarding the existence of relationship of landlord and tenant on the decision of the 'Musalehati Committee' in the attending circumstances of the case has landed into the fields of error.
6. In view of the above, the petition is allowed resultantly, the judgment rendered by learned Additional District Judge-II, Mardan is set aside and as a consequence thereof by restoring the judgment of the learned Rent Controller dismiss the ejectment petition.
(R.A.) Petition allowed