Israr Khan Shinwari Vs Dr. Naimat Ullah Khan

JUDGMENT SHEET

PESHAWAR HIGH COURT, PESHAWAR

JUDICIAL DEPARTMENT

FAO No.195-P/2025

Israr Khan Shinwari Vs. Dr. Naimat Ullah Khan.

Date of hearing 09.04.2026.

Mr. Aimal Khan Barkandi, Advocate, for the appellant.

Mr. Muhammad Idrees, Advocate, for the respondent (through Video Link).

JUDGMENT

MUHAMMAD NAEEM ANWAR, J: - This single judgment is proposed to adjudicate upon the present and connected appeals, i.e., “Israr Khan Shinwari vs. Dr. Niamat Ullah” FAO No. 196- P/2025 titled “Rehmat Ullah Vs. Dr. Naimat Ullah Khan” and FAO No. 197-P/2025 titled “Fazal Naeem Vs. Dr. Naimat Ullah Khan” , because of identical questions of law and facts, wherein the eviction applications filed by Dr. Niamat Ullah Khan against the appellants for their ejectment from rented premises i.e., Chappar/godown with court yard bearing No. KCB No. 1-41, Shop No. KCB No. 1-41/B, 1-41/C, & shops No. 1/41-A along with rooms situated at Officer training School (OTS) road opposite Shinwari Petrol Pump Kohat Cantt, were allowed, they were directed to vacate the rented premises within 45 days.

2.The requisite facts for disposal of these appeals indicate that Dr. Naimat Ullah Khan, the respondent, filed three eviction applications against the appellants, asserting that the rented premises (as described in Para-1 of this judgement located at OTS Road opposite Shinwari Petrol Pump, Kohat Cantt, were originally owned by Syed Imad Hussain Gillani, from whom he purchased the premises through registered Deed No. 11331 dated 27.05.2021. Following this purchase, he requested the appellants (tenants) to vacate the premises, acknowledging his ownership. Legal notices were served upon the appellants for eviction on the grounds of the respondent's personal need for his wife, who by profession is a medical official, and he intends to construct a

polyclinic by demolishing the old structure. He added that the District Resolution Council resolved the matter in his favor but the appellants refused to comply. In their written reply, the appellants denied the landlord-tenant relationship, contending that the rented shops were owned by Syed Imad Hussain Gillani, with whom they had signed rental agreements, asserting that no outstanding dues existed against them. They also claimed that a civil suit was pending adjudication with addition they denied the respondent's personal need. Upon receipt of the appellants' written reply, the Rent Controller framed a singular issue: whether a landlord-tenant relationship existed between the parties, directing both parties to present their respective evidence. The respondent appeared as PW-1, supported by Minhaj-ud-Din as PW-2 and Muhammad Athar as PW-3, and submitted registered deed No. 1133 dated 27.05.2021 as Ex.PW-1/2, along with the original deed dated 25.05.2021 (Ex.PW-1/1). The respondent's evidence was subsequently closed. The appellants presented Aamir Khan and Arshad Khan as Rw-1 and Rw-2, respectively, with the appellants' statement recorded as Rw-3. The case was scheduled for arguments, which were adjourned on 84 occasions at the request of the respondent's counsel. On 12.05.2025, the last opportunity for arguments was granted, yet the appellants' counsel failed to appear before the Controller of Rents on 13.05.2025.

3.During the arguments, copies of judgments from W.P. No. 936-P/2024, decided by this Court on 02.05.2025, and the order of the Civil Court in Petition No. 725/1 dated 12.10.2025, along with the judgement of the learned Additional District Judge-V, Kohat dated 27.01.2025, were submitted, indicating that the appellants' suit was dismissed by the trial court, appeal there against also failed. After considering the submissions of the learned counsel for the respondent, and hearing the arguments of the appellants' counsel, the learned Rent Controller allowed the applications, resulting in the current petitions.

4.Counsel for the appellants, Mr. Aimal Khan Barkandi, contended that the learned Rent Controller failed to appreciate the controversy, particularly the denial of the existence of

landlord-tenant relationship. He argued that the respondent failed to substantiate his claims with credible evidence and that the appellants were not afforded a fair opportunity to be heard. Therefore, he asserted that the judgments being challenged are untenable, advocating for a remand of the case to the learned Rent Controller for a fresh decision after hearing the appellants.

5.Conversely, Hafiz Muhammad Idrees, Advocate for the respondent, argued that the appellants filed a suit for declaration and perpetual injunction before the Civil Court, claiming possession of the rented premises for the last 35-40 years. He alleged collusion between Syed Imad Hussain Gillani and Syed Imdad Hussain Gillani to evict them illegally and that they should be restrained from such eviction. The defendants resisted the suit, which was ultimately dismissed by the learned Civil Judge-VI, Kohat on 02.10.2024. The appellants subsequently filed Civil Appeal No. 11/25, which was also dismissed by the learned Additional District Judge-IV, Kohat on 27.01.2025. Following the filing of the eviction applications, the appellants sought dismissal of the ejectment petition and requested an adjournment of the eviction applications sine die, citing the ongoing civil litigation. This request was denied by the learned Rent Controller on 09.01.2025, leading to the filing of a writ petition before this Court, which was also dismissed on 02.05.2025. He vociferated that in the civil suit, the defendants acknowledged that Syed Imad Hussain Gillani had transferred the rented premises through registered deed No. 1139 dated 27.05.2021, thus asserting that he was no longer the owner of the premises. The landlord, Dr. Naimat Ullah, had filed the eviction applications, which were pending before the Rent Controller. He further alleged that no rent had been paid to him since the sale of the property. Idrees maintained that the learned Rent Controller had considered all relevant facts and decided the matter in accordance with the law, directing the appellants to vacate the premises while allowing the landlord to pursue any outstanding rent through a competent court of law. He argued that the Rent Controller was competent to direct the tenants to vacate the premises upon establishing the

landlord-tenant relationship, irrespective of the absence of cross- objections from the appellants.

6.Having heard the arguments and reviewing the record, it was determined that the only issue requiring resolution in these appeals is whether the respondent/landlord has established the existence of a landlord-tenant relationship. The record indicates that the landlord filed the application based on the purchase of the rented premises via registered sale deed No. 1139 dated 27.05.2021, through which he acquired the property from Syed Imad Hussain Gillani. Following this acquisition, he issued notices to the appellants, indicating that they had not paid any rent since the purchase and that he required the premises for personal use. The registered deed corroborates the purchase and the timeline of events, with the landlord also submitting an application for a building plan to construct a new facility after demolishing the existing structure.

CM No. 1043-P/2025. This application has been moved by the respondent for placing on file relevant documents appended with the application with the prayer that the documents appended with the application are essential for just decision of the instant and connected appeals. Keeping in view the documents annexed with the application qua the submission of the learned counsel for the respondent, contents of the application and affidavit, this application is allowed, documents annexed therewith are read as part and parcel of the main petition.

7.The only question which requires determination through these appeals is whether the respondent/landlord has proved the existence of the relationship of landlord and tenant? In accordance with the principle enunciated in the case of “Ghulam Rasool Vs. Khurshid Ahmad” (2000 SCMR 632) wherein it was held by the apex Court that where relationship of landlord and tenant is denied, the Rent Controller, in the first instance should decide said issue before directing tenant to deposit arrears of rent or future rent. Perusal of record reveals that the landlord filed the application based upon the purchase of the rented premises through registered sale deed No. 1139 dated 27.05.2021 vide

which, he has purchased the property from Syed Imad Hussain Gillani and others and after the purchase of the property, he issued notices to the appellants by mentioning therein that after his purchase, the appellants have not paid any rent and now he is in personal need of the rented premises purchased by him. Copy of registered deed was placed on file reflecting the factum of purchase against the sale consideration w.e.f. 25.05.2021, which was registered on 27.05.2021. He has also submitted the application for approval of building plan in order to construct the shop after demolishing the rented premises as per his need based on the registered deed. Ex.PW-1/3 is the document reflecting the transfer of the property through mutation issued by the Cantt Executive Officer, Cantonment Board Kohat. This is an admitted fact that the tenants of the rented premises namely Fazal Naeem (appellants of connected FAO No.197-P/2025), Fazal Kareem and Taj Ali Khan filed suit for declaration, wherein they have alleged that they have been in possession of the rented premises for 35/40 years but now Syed Imad Hussain Gillani is threatening them to vacate the rented premises, which suit was resisted by Syed Imad Hussain Gillani (the owner of the premises) who in his written statement at Serial No. 7 of the legal objection has categorically mentioned that he and the other owners had sold the property to Dr. Naimat Ullah Khan through registered deed No.1139 on 27.05.2021 who had filed the applications for ejectment before the Rent Controller of the Cantonment Board Kohat by specifically mentioning therein that after the sale of the property i.e. 27.02.2021, no rent was paid to him. He also submitted an application for rejection of the plaint and ultimately the plaint was rejected by the learned Civil Judge against which, the appeal also failed on 27.01.2025. Record also reflects that after filing of the ejection applications, the appellants filed an application for stay of proceedings on the strength of the civil suit, which application was turned down and writ petition thereagainst was also dismissed by this Court. Copy of the judgement of W.P No.935-P/2024 dated 02.05.2025 is available on record. It is an established law that once the relationship of tenant and landlord is

admitted and the tenant alleges himself to be the owner of rented premises either through sale or otherwise, he is legally required to surrender the possession and there-after to seek the remedy from the court of competent jurisdiction in accordance with law. Reliance is placed on the case titled “Nazir Ahmad versus Mst. Sardar Bibi and others” (1989 SCMR 913) & “Province of Punjab though Education Secretary and another versus Mufti Abdul Ghani” (PLD 1985 Supreme Court 1), “Ghulam Mustafa and others versus Mst. Muhammad Begum and others” (1991 SCMR 432), “Madrassa Darul Uloom Al-Baqiatul-Salehat Registered versus The Additional District Judge (Appellate Court) and another” (PLD 1992 Supreme Court 401). The appellants, in view of the clear stance of Syed Imad Hussain Gillani, could neither deny from the relationship nor could resist their ejectment from the rented premises.

8.The submission of learned counsel for the appellants that the appellants in their written reply have categorically denied from the relationship of the landlord with tenants and that no rent was outstanding against them is misconceived. In their reply submitted by the appellants, on 19.09.2023 they have alleged that Syed Imad Hussain Gillani is the owner of the shop and is the landlord who in his written statement submitted before Civil Court has admitted the factum of transfer of property through registered deed w.e.f. 27.05.2021 and that after the sale of the property, no rent was paid to him by the appellants.

9.Moreover, Ex.PW-1/5 is the legal notice issued by respondent is sufficient to substantiate the contention of the landlord about the change of the ownership of the rented premises when corroborated by the vendor Syed Imad Hussain Gillani and in view of the above, coupled with the dismissal of their suit from Civil Court and appeal thereagainst has attained finality being not challenged is repelling to the stance of the appellants in disputing the change of ownership and relationship of tenants and landlord. No doubt, that the appellants were not inducted in the rented premises by respondent, however, after purchased of the property the appellants were informed through

legal notice as required under the law and even the filing of applications for eviction was itself a notice about change of ownership. It is well-settled law that when relationship of landlord is proved, the tenants are required to be evicted and the application for eviction is allowed against them. Reliance is placed on the cases of “Rehmat Ullah Vs. Ali Muhammad & another” (1983 SCMR 1064) and “Nasir Khan Vs. Nadia Ali Butt & others” (2024 SCMR 452).

10.Insofar as the change of ownership that has also been proved through notice, decision of Civil Court, dismissal of appeal, contents of the eviction applications and the evidence produced before the Controller of Rents. Since, the only plea of the landlord/respondent was recovery of possession on the ground of personal need through purchase of the property from initial owner, as such, no relief for outstanding dues was sought by him rather he averred that his wife is Medical Officer and he wants to construct the new building by demolishing the existing building as per his need for which, he has also submitted the application before concerned forum alongwith the map of the building and transfer of possession through GLR is also an established fact in respect of the change of ownership available on record. Thus, the learned Rent Controller after evaluating the evidence has rightly directed the appellants to handover vacant possession within forty-five days from the date of judgement. Fazal Naeem, one of the appellant is before the Court, who also contended that he alongwith the other appellants are in possession of the rented premises for last forty years but the appellants have not been able to deny the change of ownership in connection with the establishment of the factum of the relationship; thus, their stay in the disputed shop with effect from the change of ownership was unjustified especially when the applications were filed, they could not have dispute the relationship and when Syed Imad Hussain Gillani in the suit of the appellants has authenticated rather admitted the factum of transfer of ownership through registered deed in favour of respondent. They after admitting the existence of relationship were required to deposit the rent before the Rent

Controller if intended to resist the ejectment but stance taken by them was against the fact from their appearance before the Rent Controller and after acceptance of the applications, the filing of these appeals before this Court were without any legal justification and in support of their stance, the appeals were filed frivolously to drag the landlord in the litigation and to prolong their unjustified occupation of the rented premises that too without payment of the rent on one hand and to avoid the execution of a decree on the other hand, which action of the appellants was not permissible and could not be sustained.

11.After careful consideration, it is evident that these appeals, along with the connected matters, are devoid of merit and substance, having been frivolously filed against a well-reasoned order which does not warrant interference. Learned counsel for the appellants failed to establish any illegality, irregularity, or jurisdictional defect in the findings of the learned Rent Controller. Although the appeals were filed under Section 24 of the Cantonment Rent Restriction Act, 1963, the procedure prescribed under the Code of Civil Procedure, 1908, is applicable. Under the proviso to Rule 33 of Order XLI, the appellate court is barred from invoking Section 35-A CPC for imposition of costs. However, this Court, apart from the provisions of the CPC, is vested with supervisory jurisdiction under the Constitution of the Islamic Republic of Pakistan, 1973. In exercise of such jurisdiction, the Court is empowered to impose costs where proceedings are found to be frivolous or vexatious. For exercise of such powers reference may be made to the cases of Ch. Muhammad Shafi Versus Shamim Khanum (2007 SCMR 838), Ch. Muhammad Shafi Versus Shamim Khanum (2021 SCMR 829), Muhammad Husain Munir and Others versus Sikandar and Others (PLD 1974 SC 139). The object of imposition of cost has been dilated upon by the Hon’ble Supreme Court in the case of Khurshid Ahmad Naz Faridi vs. Bashir Ahmed (1993 SCMR 639) wherein it was observed:

"The object of granting such costs may be two-fold. One to compensate the aggrieved party who in successful assertion/ defence of his right, has been put to unnecessary litigation and harassment. The other object is to penalize a party who may have initiated any action or passed the

order in complete disregard of the obvious and glaring facts and provisions of law which a reasonable person would not do unless he acts with highhandedness, arbitrarily, mala fide or ulterior motive. Where a person acting in his official capacity in complete disregard of the clear records and documents and having no authority to pass order of a particular nature, passes such' an order, then while setting aside such order the Court awards cost to be paid by him personally, it will, be proper exercise of discretion. But such discretion is based on facts and circumstances of the case and conduct of parties. As the order granting costs is discretionary, it should not be fanciful, arbitrary, whimsical or capricious. Such discretion is exercised with regard to the party that will be charged with costs, the amount and the manner in which costs are to be paid."

Likewise, the Hon’ble Supreme Court in the case of Muhammad Saleem vs. Additional District Judge (2024 SCMR 1770) while refusing leave to appeal dismissed the petition by maintaining the imposition of costs by the High Court has held that: In the peculiar circumstances of instant case, the defendant does not deserve any leniency. There are no convincing reasons to waive off the cost of Rs. 50,000/- imposed upon the defendant by Single Bench of Lahore High Court vide impugned order dated 28 October 2022.

Thus, by considering the law of imposition of costs, all the appeals are hereby dismissed with costs of Rs. 30,000/- (thirty thousand rupees) each, amounting to a total of Rs. 90,000/-. The learned Executing Court shall recover the said amount from the appellants and pay it to the respondent.

Announced.

09.04.2026. JUDGE

Haider Shah, SSS (SB) Hon’ble Mr. Justice Muhammad Naeem Anwar.