Ziarat Gul Gojar Vs Mian Zahoor Muhammad

IN THE PESHAWAR HIGH COURT,

MINGORA BENCH (DAR-UL-QAZA), SWAT

(Judicial Department) W.P No. 112-M/2025 Alongwith Interim Relief Ziarat Gul Gojar ........................ (Petitioner) vs Mian Gul Zahoor Muhammad and 02 others .................................. (Respondents) Present: Mr. Abdul Halim Khan, ASC for the petitioner.

Muhammad Zahid, Advocate for the respondent No.1.

Date of hearing: 25.09.2025

JUDGMENT

SALAH-UD-DIN, J.- By invoking constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, (“the Constitution”), the petitioner, Ziarat Gul Gujar, has filed instant writ petition, with the following prayer:

“It is therefore, humbly requested that with the acceptance of the instant writ petition:

i. The impugned orders, judgments and decrees dated 18.10.2023 and 06.01.2025 passed by respondents No. 2, 3 respectively, be declared unconstitutional, illegal and without lawful authority.

ii. That the petition for ejectment and recovery of rent bearing No. 07/RC filed by respondent No. 1, be dismissed with costs.

Bakht Sher Ali/Steno (S.B.) Hon’ble Mr. Justice Salah-ud-Din

iii. Any other relief which is just, appropriate and efficacious may also be awarded to the petitioner, though not specifically prayed for, but the interest of the justice demands so.”

2.Arguments heard and record gone

through with the able assistance of learned counsel for the parties.

3.Perusal of record would manifest that an ejectment petition u/s.13 of the Rent Restriction Ordinance, 1959, was filed by one Miangul Zahoor Muhammad, (“the respondent”), an owner against the tenant, Ziarat Gul Gujar, (“the petitioner”), in respect of a house fully detailed in the headnote of the ejectment petition coupled with the recovery of outstanding rent amounting to Rs. 495,000/- @ Rs. 15,000/- per month and onward at the same ratio till his ejectment, mainly on the grounds of willful default of rent as well as personal need.

4.On appearance before the learned Rent Controller, the petitioner candidly denied any relationship, inter-se, the parties as landlord and the tenant, termed the house in question as the ownership of a lady, namely, Mst. Tasleem Bibi, Bakht Sher Ali/Steno (S.B.) Hon’ble Mr. Justice Salah-ud-Din

second widow of Miangul Mufti Sadar Azam and the stepmother of the respondent. The petitioner showed himself as a tenant of Mst. Taleem Bibi, in the house in question from 04.08.2014 @Rs.5000/- per month, who regularly pays the monthly rent to her and the alleged rent deed relied upon by the respondent was termed to be faked.

While going through the pleadings of the parties, learned Rent Controller reduced the pleadings into the following 05 contentious issues:

“1. Whether plaintiff has got cause of action? (OPP)

2.Whether as per rent agreement dated 01.01.2018 petitioner has paid monthly rent of January, February, and March of 2018 and then remained defaulter in payment of rent.? (OPP)

3.Whether relationship of landlord and tenant exist between parties? (OPP)

4.Whether Tasleem Bibi is the landlady of house in question and respondent pay her monthly rent vide rent agreement dated

04.08.2014? (OPR)

5.Whether plaintiff is entitled to the decree as prayed for? (OPP)”

5.On conclusion of the trial, the learned Rent Controller arrived at the conclusion that the claim of the respondent is well found, as such, it was allowed vide judgment & decree, dated 18.10.2023, as follows:

Bakht Sher Ali/Steno (S.B.) Hon’ble Mr. Justice Salah-ud-Din

“Relief: As a result of my issue- wise findings the instant suit is decided in the following terms:

Prayer Alif: Since, it is for ejectment is decreed in favour of petitioner.

Prayer Bay: It is for recovery of Rs.495,000/- for 2 years 9 months till institution of suit is hereby decreed in favour of petitioner and from December, 2020 till October, 2023 as Rs.525,000/-.”

6.Aggrieved whereof, the petitioner approached to the learned appellate Court for seeking appropriate reliefs through filing an appeal, however, the same was dismissed on merits after hearing arguments of learned counsel for the parties vide impugned judgment & decree, dated 16.02.2024. It obliged the petitioner to approach this Court for seeking appropriate reliefs through filling instant writ petition under Article 199 of the Constitution while having no any other expeditious and adequate remedy under the law on subject.

7.Learned counsel for the petitioner mainly focused his arguments on a civil suit No.104/1 of 2021 titled “Mst. Tasleem Bibi v/s Muhammad Nisar Khan and another”, wherein, the house under ejectment is the subject matter of the said suit, as such, the ownership of the house in Bakht Sher Ali/Steno (S.B.) Hon’ble Mr. Justice Salah-ud-Din

question is disputed amongst Mst. Tasleem Bibi and the respondent No.1 as well as his brother, Muhammad Nisar Khan. It was alleged that the petitioner is tenant of Mst. Tasleem Bibi, the stepmother of the respondent and he is regularly paying its monthly rent to her in pursuance of a Rent-deed, dated 04.08.2014 and the respondent has not been able to prove relationship of landlord and tenant, inter-se, the parties, whereas, the rent-deed, dated 01.01.2008, Ex:PW1/1, coupled with alleged receipts of payment of rent for the months of January, February & March, 2018, were stated to be faked and collusive as no any rent agreement has been executed between them. It was prayed that instant petition be allowed, set aside the impugned orders, judgments & decrees of the learned fora below, i.e., the respondents No.2 & 3, respectively, by dismissing the ejectment petition of the respondent.

8.On the contrary, learned counsel for the respondent hectically opposed the stance of learned counsel for the petitioner by contending that the petitioner has deliberately concealed the actual facts from the Court with regard to Iqrarnama/Razi-Nama, dated 22.05.2011, executed Bakht Sher Ali/Steno (S.B.) Hon’ble Mr. Justice Salah-ud-Din

amongst the parties, in which, the house in question has been admitted as ownership of the mother of the respondent by Mst. Tasleem Bibi, stepmother of the respondent. It was further contended that the civil suit referred to above have no bearing on the merit of ejectment petition and the learned fora below have rightly passed the impugned orders, judgments & decrees, after proper appraisal of evidence of the parties coupled with other material on the face of record. He prayed for dismissal of the instant writ petition being not maintainable as no any fundamental right of the petitioner has been shown to have violated in view of the impugned judgments.

9.Mainstay of the instant controversy for resolution of the Court, inter-se, the parties is as to whether there exist relationship of landlord and tenant between them in the wake of rent agreement deed, dated 01.01.2018, and rent receiving receipts for the months of January, February & March, 2018, or otherwise, the petitioner was a tenant of Mst. Tasleem Bibi, stepmother of the respondent in the subject house vide rent agreement deed, dated 04.08.2014, and he used to pay its monthly rent regularly to Mst. Tasleem Bibi.

Bakht Sher Ali/Steno (S.B.) Hon’ble Mr. Justice Salah-ud-Din

10.The respondent in support of his contention examined himself as PW4 by exhibiting all relevant documents relied upon as Ex:PW4/1 to Ex:PW4/9 and also adduced his other evidence as PW1 to PW3, whereas, the petitioner while rebutting the contention of the respondent, examined himself as DW4 and produced other supportive evidence in consonance with his stance has been taken in defence in his written statement as DW1 to DW3.

11.A witness, Muhammad Saeed, was

examined as PW1 and deposed that he has scribed the rent agreement, dated 01.01.2018, (Ex:PW1/1), singed by the parties as well as the marginal witnesses in his presence and it also bears his signature. Both the marginal witness, namely, Muhammad Perviz PW2 and Noor-ul-Wahab PW3 have fully supported the stance of the respondent as both of them have deposed that they have perused the rent-deed, dated 01.01.2018, which bears their signatures as its marginal witnesses.

The said deed was scribed by the petition writer, namely, Muhammad Saeed, and it was signed by the parties as well as the said petition writer in their presence and also signed by them. They Bakht Sher Ali/Steno (S.B.) Hon’ble Mr. Justice Salah-ud-Din

negated the suggestions put forward by learned counsel for the petitioner that the ownership of subject house pertains to Mst. Tasleem Bibi, stepmother of the respondent and she had let out it to the petitioner in 2014 on monthly rent. On this score, the evidence adduced by the respondent is unanimous and as such the relationship, inter-se, the parties is obviously proved on the face of record, which having no any major contradiction or discrepancy fatal to the contention of the respondent. The respondent in his statement as DW4 reiterated the contents of ejectment petition, however, exhibited curtain documents including the receipts Ex:PW1/2 to Ex:PW1/4 as to receiving monthly rent from the petitioner for the months of January, February & March, 2018. He was also cross-examined but no any material contradiction was brought on the record from him. As such, the relationship, inter-se, the parties as landlord and tenant, is obviously proved on the face of record.

12.The petitioner examined himself as DW4, who relied upon the rent agreement deed, dated 04.08.2014, allegedly executed in his favour by Mst. Tasleem Bibi, stepmother of the respondent, based it on a dower deed Bakht Sher Ali/Steno (S.B.) Hon’ble Mr. Justice Salah-ud-Din

(Nikah-Nama) dated 01.08.2006 and in support whereof, he also produced Khan Wadood as DW2, who had scribed the rent deed, dated 04.08.2014, on the strength of above dower-deed allegedly made in favour of Mst. Tasleem Bibi, by her late husband. DW2, Amjad Ali, who is the real brother of Mst.Tasleem Bibi, and a marginal witness of the above rent-deed. He during the course of his cross- examination has conceded the fact that the aforesaid dower-deed didn’t reflect the boundaries and specification of the house mentioned therein.

DW3, Mst. Tasleem Bibi, deposed that she has let out the subject house to the petitioner on monthly rent @ Rs.5000/- vide deed Ex:DW1/, who is paying its monthly rent to her on regular basis. However, the crucial question arises herein is that the ownership of Mst. Tasleem Bibi, is still disputed before the civil Court, which is yet to be decided on merits after adducing evidence by the parties therein and at present, the ownership of Mst. Tasleem Bibi, thereto is not clear, so, she could let out the same to the petitioner until her ownership has not been proved and declared by the Court of competent jurisdiction. It is astonishing enough that if the subject house was ownership of Bakht Sher Ali/Steno (S.B.) Hon’ble Mr. Justice Salah-ud-Din

Mst. Tasleem Bibi, or her interest was involved in the ejectment petition then why did she refrain from approaching the learned Rent Court for her impleadment therein instead of examining her as a witness of the petitioner. Besides, learned civil Court vide order, dated 19.03.2019, passed in a civil suit titled as “Mst. Tasleem Bibi vs Muhammad Nisar Khan” has made some observation with regard to the subject house, which are reproduced herein below for ease reference:

Both parties during arguments and in their claims admitted the contents of the Iqrarnama/Raazi Nama dated 22/05/2011. Both also admitted that disputed property in the second list ( )فہرست بis the same house which was given to the mother of petitioners as per paragraph No.1 of the Iqrarnama/Raazi Nama dated 22/05/2011. The paragraph is reproduced as under:-

’مہ ہلمج رجہگ ربممان وضحبر وگااہن ربوےئ رحتری ذہا ہب درتس وحاس و ہسمخ و احتل حیحص درج راےئ امنیب رفنیقی اصدر رکےت ںیہ،ذلی ہلصیف رمکہ اجت و7 ہک اکی دعد اکمن ہتخپ ہب لمتشم اکی رمکہ اہل ہعمب رجحہ ہتخپ دحمودہ دحبودات ذلی اجبن رغب ذایت، اجبن رشق راہتس ایمں الگن اجبن،الپٹ رفقی اول و دومئ اجبن امشل وخز ونجب اکمن اغزی اخن وراہتس ایمں الگن رفقی Bakht Sher Ali/Steno (S.B.) Hon’ble Mr. Justice Salah-ud-Din

اول یک وادلہ و رموحہم اک قح رہم ےہ اور ہی اس ‘یک ہلمج اوالد یک تیکلم وصتر وہیگ۔ The Iqrarnama/Raazi Nama dated 22/05/2011 does not disclose any condition regarding the proof as claimed and argued by respondent. The statement under section 161 of CrPC by Mr. Said Fazal Akbar as referred by respondent has no value because a clear and written stance is admitted, on the contrary, in the Iqrarnama/Raazi Nama dated 22/05/2011. The ownership of the house is admitted by respondent/plaintiff and scribed in clear possible terms in the Iqrarnama/Raazi Nama dated 22/05/2011 as reproduced above. The boundaries in the plaint and the Iqrar Nama/ Razinama are also the same.

So, the instant application is accepted only to this extent and the suit to the extent of this house mentioned in second list )(فہرست ب is dismissed because respondent has no cause of action regarding this house.

13.The aforesaid observations reflects that the subject house was given to the real mother of respondent by her husband, Miangul Mufti Sadar Azam (late), as her dower and this factum was mentioned in a private compromise deed, dated 22.05.2011, arrived at amongst the legal heirs of Miangul Mufti Sadar Azam (late) and Mst. Tasleem Bibi, stepmother of the respondent was party thereto. Be that as it may be, however, Bakht Sher Ali/Steno (S.B.) Hon’ble Mr. Justice Salah-ud-Din

the title dispute of the subject house, inter-se, the respondent and Mst. Tasleem Bibi, could only be resolved by the civil Court of competent jurisdiction in a civil suit already pending adjudication between them. It is also part of the record that learned Civil Judge/Illaqa Qazi-IV, Dir Lower at Timergara, vide his order, dated 19.03.2019, available at page 04 of the C.M No.1553-M/2025 in the instant petition, has observed that the civil suit referred to above was dismissed by the learned trial Court in default on 07.05.2024, application for its restoration was dismissed on 24.07.2024, appeal there-against was also dismissed by learned appellate Court, on 20.01.2024, but the same was reversed by this Court vide judgment, dated 03.07.2025, rendered in civil revision petition bearing No.163-M/2025, thereby restored the main suit for decision on merit after affording opportunity of adducing evidence, pro & contra and hearing arguments of learned counsel for the parties, which is yet to be decided.

Needless to mention here that the civil litigation referred to above is in its initial stage and it would take many years for finally deciding its fate upto the Hon’ble Supreme Court of Pakistan being a Bakht Sher Ali/Steno (S.B.) Hon’ble Mr. Justice Salah-ud-Din

contesting case, therefore, instant case could be kept pending to sine die adjourned.

14.In these circumstances, the Court would decide the fate of instant petition on the principle of preponderance of evidence available on the case file, which on the available evidence, is surely tilting in favour of the respondents/ defendants. In Abdul Rehman’s case, Hon’ble the apex Court has held that in civil dispensation of justice, courts are to adjudge the lis on the standard of preponderance of probability of evidence produced by the parties. And the decision of the court would tilt in favour of the party having preponderance of evidence. As for the burden of proving a fact is concerned, it gains importance and relevance, only when no evidence is led by the concerned party or the Court is unable to take a decision, one way or the other, on the basis of evidence available on record of the case.1

15.As far as default of payment of rent is concerned, it is an admitted fact that the petitioner has categorically denied the relationship of 2022 SCMR 399, Abdul Rehman and others v/s Mst. Allah Wasai and others.

Bakht Sher Ali/Steno (S.B.) Hon’ble Mr. Justice Salah-ud-Din

landlord and tenant, inter-se, the parties, and he paid no single rupee in relation to payment of rent to the respondent, who is apparently landlord of the petitioner, thus, the commission of default is well established on the face of record and need no further discussion.

16.In the circumstances mentioned

above, both the learned Courts below have rightly passed their respective orders and as such the same neither suffer from any jurisdictional defect or any other material illegality or irregularity.

In Muhammad Arshad Khokhar’s case2 as well as Inayat Ullah’s case3, Hon’ble the apex Court has elaborately dilated upon that what is a wilful default and the said criteria is fully applicable to the case in hand.

17.Even otherwise, this Court cannot interfere with in the concurrent findings of learned two Courts below until and unless there has been found any material irregularity or misapplication of law. Hon’ble apex Court in Mst. Mahmooda Begum’s case has held that in normal

circumstances, the High Court is not supposed to interfere with a finding of fact recorded by a tribunal of special jurisdiction in respect of 2010 SCMR 1071 , Muhammad Arshad Khokhar vs. Mrs. Zohra Khanum and others 1987 SCMR 1313, Inayat Ullah vs. Zahoor-ud-Din and another. Bakht Sher Ali/Steno (S.B.) Hon’ble Mr. Justice Salah-ud-Din

matters exclusively within its competence, unless there has been a serious misreading or

misappreciation of the evidence on the part of the said tribunal, or there has been failure on its part to take into consideration material facts or to apply the statutory law or any principle or rule of law as laid down by the superior Courts.4 Similar view was also followed by the Sindh High Court as in Muhammad Iqbal’s case it has been observed that it is settled proposition of law that Courts below, in its original and appellate jurisdiction are competent to draw inference, while delivering the judgment and it is not open to interference in Constitutional jurisdiction, unless and until miscarriage of justice is established by the party in the Constitutional petition, thus, High Court would not normally interfere in judgment and decree passed by court of competent jurisdiction for the reason that it was within their exclusive jurisdiction, to believe and disbelieve the evidence, it is worth to add that no Constitutional petition lies when evidence in the case has been properly appreciated and analyzed.5

18.In view of what has been discussed

above, learned counsel for the petitioner has not been able to pinpoint any illegality, material 1992 SCMR 809, Mst. Mahmooda Begum and another vs. Taj Din 2013 CLC 1780, Muhammad Iqbal vs. Mst. Zahidan and 2 others. Bakht Sher Ali/Steno (S.B.) Hon’ble Mr. Justice Salah-ud-Din

irregularity and jurisdictional error in the impugned concurrent orders/judgments of the learned fora below, warrants interference by this Court in its constitutional jurisdiction, thus, the same are maintained.

19.Resultantly, instant writ petition stands dismissed being bereft of merits.

Announced Dt: 25.09.2025 Sd/-

JUDGE

Bakht Sher Ali/Steno (S.B.) Hon’ble Mr. Justice Salah-ud-Din