Mian Zahir Shah Vs Raza Jan & others

JUDGMENT SHEET

PESHAWAR HIGH COURT, PESHAWAR

(Judicial Department) W.P No. 4949-P of 2023.

Mian Zahir Shah & 03 others Vs Raza Jan & others.

Present: Mr. Adnan Aman, Advocate, for petitioners. Mr. Asif Ali Shah, Advocate, for respondents.

Date of hearing: 10.06.2026.

JUDGMENT

MUHAMMAD NAEEM ANWAR, J.- Through the instant Constitutional Petition, filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioners have called in question the judgment and order dated 18.10.2023 passed by the learned Additional District Judge-II, Charsadda, whereby the appeal preferred by the respondents against the order dated 14.03.2023 of the learned Rent Controller/Civil Judge, Charsadda, accepting the ejectment application and striking off the defence of the respondent, was allowed and the matter was remanded to the learned Rent Controller for decision afresh after framing of issues and recording of evidence. The impugned order has been assailed on the grounds of being illegal, arbitrary, unwarranted, without lawful authority and of no legal effect.

2.I have listened to the arguments advanced by the learned counsel for the parties at considerable length and examined the record annexed with the petition.

3.A careful scrutiny of the record reveals that the petitioners instituted an ejectment application against the respondent in respect of rented premises, i.e., Shop No.3106 situated near Farooq Azam Chowk, Mardan Road, Charsadda. The ejectment was sought on the assertions that the predecessor-in-interest of the petitioners, Ahbab Gul alias Gul Mian, was owner/landlord of the shop, which, after his demise, devolved upon the present petitioners through inheritance; that the premises had been let out to the respondent, who had been regularly paying rent, but

since the year 2017 he defaulted in payment thereof; that rent was fixed at Rs.5,000/- per month; and further that petitioner No.3, Mian Saqib Gul, bona fide required the premises for establishment of his own business.

4.The ejectment application was contested by the respondent primarily on the plea that the disputed property did not belong to the petitioners but was owned by the Pakhtunkhwa Highways Authority, with whom, according to him, he had entered into a tenancy arrangement. It was asserted that the shop in question had been constructed over Khasra Nos.975 and 976/1, initially owned by the Communication and Works Department and subsequently transferred to the Pakhtunkhwa Highways Authority. The respondent further claimed that possession of the premises originally vested in his father, Sher Bahadur, and after his demise, he himself continued in possession thereof.

5.However, the factual matrix assumes significance in view of earlier proceedings initiated by the respondent himself. The record demonstrates that prior to filing of the ejectment application on 25.11.2017, the respondent had instituted a civil suit on 09.11.2017, wherein petitioner Nos.1 and 3 were arrayed as defendants, seeking declaration and consequential relief on the premise that he had been in possession of Shop No.2 situated at Farooq Azam Chowk, Mardan Road, Charsadda, for a considerable period, and prior to him, his father Sher Bahadur remained in possession thereof. Significantly, in paragraph No.2 of the plaint, the respondent unequivocally pleaded that his father had been paying rent to the predecessor-in-interest of the present petitioners and that after his father, he himself continued payment of rent to them until notices were issued by the official authorities demanding rent in their favour. It was also specifically averred that the respondent intended to enter into a tenancy arrangement with the official authorities only after receipt of such notices.

6.The said suit, however, did not find favour with the learned Civil Court and was rejected vide order dated 03.11.2018. The appeal there against was dismissed on 14.03.2019, while the Civil Revision Petition preferred before this Court also met the same fate and was dismissed on

02.10.2020. Resultantly, the respondent’s plea challenging the status of the petitioners stood conclusively negated.

7.Simultaneously, during pendency of ejectment proceedings, the learned Rent Controller, taking into consideration the admitted relationship of landlord and tenant, vide order dated 03.11.2018, directed the respondent under Section 13(6) of the West Pakistan Urban Rent Restriction Ordinance, 1959, to deposit monthly rent at the rate of Rs. 5,000/- before the 15th day of each month. On the same date, an application filed by the respondent for summary rejection of the ejectment petition was also dismissed. The record further reveals that the respondent himself expressed willingness before the learned Rent Controller to deposit rent at the aforesaid rate. Significantly, the order dated 03.11.2018 was never challenged before any competent forum and thus attained finality.

8.Despite the unequivocal directions of the learned Rent Controller and notwithstanding his own undertaking, the respondent failed to comply with the mandatory requirement of regular deposit of rent. Consequently, the petitioners filed an application on 09.01.2023 for striking off the defence of the respondent on account of non-compliance of the order passed under Section 13(6) of the Ordinance of 1959. The learned Rent Controller, vide order dated 14.03.2023, allowed the said application and ordered ejectment of the respondent. However, the learned Appellate Court, through the impugned judgment dated 18.10.2023, set aside the said order and remanded the matter to the learned Rent Controller for framing of issues and recording of evidence, primarily on the premise that a preliminary issue regarding the relationship of landlord and tenant had not been framed.

9.During the course of proceedings before this Court, the respondent appeared in person on the direction of the Court. Upon a specific query regarding possession and execution of tenancy agreement, he candidly admitted that his father, Sher Bahadur, had been in possession of the premises since long and had entered into an agreement with the predecessor-in-interest of the petitioners, pursuant thereto rent

was regularly paid. He further admitted that such arrangement continued till the year 2017 when notices were allegedly issued by the Pakhtunkhwa Highways Authority. He also acknowledged institution of the civil suit by him, dismissal thereof up to this Court, and subsequent execution of an agreement with the Pakhtunkhwa Highways Authority. Simultaneously, he conceded that proceedings initiated against him under the Khyber Pakhtunkhwa Public Property Removal of Encroachment Act, 1977, had been adjourned sine die at his own request after filing of the present petition.

10.In the backdrop of the above factual position, the pivotal question requiring determination by this Court is whether the relationship of landlord and tenant stood established between the parties so as to justify the order passed by the learned Rent Controller under Section 13(6) of the Ordinance of 1959, and whether the learned Appellate Court was justified in remanding the matter for fresh determination.

11.Before proceeding further, it would be advantageous to reproduce Section 13(6) of the West Pakistan Urban Rent Restriction Ordinance, 1959, which reads as under:

(6)In proceedings under this section on the first date of hearing or as soon as possible after that date and before issues are framed, the Controller shall direct the tenant to deposit all the rent due from him, and also to deposit regularly till the final decision of the case, before the fifteenth day of each month the monthly rent due from him. If there is any dispute about the amount of rent due or the rate of rent, the Controller shall determine such amount approximately and direct that same be deposited by the tenant before a date to be fixed for the purpose. If the tenant makes default in compliance of such an order, then if he is the petitioner, his application shall be dismissed summarily and if he is the respondent, his defence shall be struck off and the landlord put into possession of the property without taking further proceedings in the case.

12.A plain reading of the aforesaid provision manifests that the Rent Controller is vested with authority to direct deposit of rent at the earliest stage of proceedings, even before framing of issues, where the relationship of landlord and tenant exists or stands admitted. It further leaves little

room for discretion once the tenant defaults in compliance, as striking off defence and restoration of possession to the landlord follow as statutory consequences.

13.In the instant matter, the relationship of landlord and tenant was not merely inferential but expressly admitted by the respondent himself in his earlier civil suit, wherein in paragraph No.2 of the plaint he categorically acknowledged payment of rent by his predecessor as well as by himself to the predecessor-in-interest of the petitioners. Such admission constitutes substantive evidence and squarely attracts the doctrine of estoppel embodied in Article 115 of the Qanun-e-Shahadat Order, 1984.

14.The contention subsequently raised by the respondent that the petitioners were not landlords is, therefore, wholly misconceived and self- destructive. A litigant cannot be permitted to assume inconsistent positions before different fora to suit his convenience. The respondent, having unequivocally admitted the tenancy relationship and having acted upon the same by payment of rent, could not later resiled therefrom merely on account of notices issued by the Pakhtunkhwa Highways Authority. The law does not permit a party to approbate and reprobate simultaneously, nor can one be allowed to blow hot and cold in the same breath. Guidance in this regard may beneficially be sought from the dictum laid down in Mst. Razia Begum and another Vs. Senior Civil Judge (Rent Controller), Charsadda and others (PLD 1996 Peshawar 08), wherein it was held that where relationship of landlord and tenant stands admitted, the Rent Controller is competent to pass an order under Section 13(6) of the Ordinance for deposit of rent without embarking upon a roving inquiry regarding title. Likewise, in Mst. Kalsoom Bibi and others Vs. Muhammad Amin Agha (deceased) through LRs and others (2022 SCMR 929), the august Supreme Court reiterated that estoppel may ordinarily operate as a shield rather than a sword; however, where a tenant has himself admitted tenancy, he remains estopped from denying the title of the landlord during continuance of possession.

15.More recently, the august Supreme Court in Nawab Khan and another Vs. Muhammad Yousaf and others (2026 SCMR 717) authoritatively held that a tenant, notwithstanding any subsequent claim of ownership or competing title, cannot continue retaining possession as tenant while simultaneously disputing the landlord’s status. The proper recourse available to such tenant is first to surrender possession and thereafter agitate questions of title before a competent civil forum.

16.Equally settled is the principle that compliance with an order passed under Section 13(6) of the Ordinance is mandatory in nature. Failure to deposit rent within prescribed time, even for a single day without legally justifiable explanation, ordinarily entails ejectment. In Province of Punjab and others Vs. Muhammad Jalil-ur-Rehman (1986 SCMR 1705), it was held that the Rent Controller possesses no unfettered discretion to condone delay unless compelling circumstances establish objective impossibility. Similarly, in M.H. Mussadaq Vs. Muhammad Zafar Iqbal (2004 SCMR 1453), it was held that even delay of a single day, without lawful justification, furnishes sufficient ground for ejectment. Reference may also be made to Amin and others Vs. Hafiz Ghulam Muhammad and others (PLD 2006 SC 549) and Dr. Muhammad Bashir Qasim through legal heirs Vs. Gulzar Mehmood and others (2026 SCMR 321), wherein non-compliance with statutory direction regarding deposit of rent was treated as a valid and sufficient basis for ejectment.

17.Viewed from another angle, even if the respondent subsequently entered into some arrangement with the Pakhtunkhwa Highways Authority, such conduct did not absolve him of his legal obligations towards the petitioners, particularly when he admittedly entered possession as tenant under the predecessor-in-interest of the petitioners. In law, he could not alter the character of possession unilaterally. If he genuinely intended to attorn tenancy in favour of another authority, he was legally obliged to first surrender possession to the existing landlord and thereafter secure lawful possession under a fresh arrangement. Reliance in this regard may be placed upon Barkat Masih Vs. Manzoor Ahmad (deceased) through LRs (2006 SCMR 1068).

18.It is also noteworthy that the ejectment proceedings have remained pending since the year 2017 and the respondent, by raising mutually destructive pleas, has managed to prolong litigation while continuing in possession. Simultaneously, he sought benefit from notices issued by the Pakhtunkhwa Highways Authority by allegedly entering into an agreement with them, yet at the same time challenged those very notices before the Tribunal established under the Khyber Pakhtunkhwa Public Property Removal of Encroachment Act, 1977. Such inconsistent conduct unmistakably undermines the bona fides of the respondent.

19.This Court is conscious of the settled principle that a Rent Controller is not competent to adjudicate disputed questions of title. However, determination of title is wholly alien to the controversy at hand. The only relevant inquiry pertains to existence of landlord-tenant relationship, which, in the present case, stands admitted from the respondent’s own pleadings, conduct, and statement before the Court. Once such relationship stood established and the respondent failed to comply with the mandatory direction for deposit of rent, the consequence envisaged under Section 13(6) of the Ordinance inexorably followed.

20.Consequently, the learned Appellate Court fell in patent error while remanding the matter for framing of issues and recording of evidence regarding a fact already admitted and conclusively established on record. The remand order, therefore, suffers from material illegality and jurisdictional infirmity and cannot be allowed to sustain.

21.For what has been discussed above, the instant petition is allowed. The impugned judgment and order dated 18.10.2023 passed by the learned Additional District Judge-II, Charsadda, is hereby set aside, while the order dated 14.03.2023 passed by the learned Rent Controller/Civil Judge, Charsadda, is restored.

22.It is pertinent to observe that pursuant to execution proceedings undertaken in consequence of the restored order, possession of the rented premises has already been delivered to the petitioners. Therefore, the surviving question pertains only to the respondent’s liability regarding

payment of arrears of rent. Accordingly, the respondent shall pay arrears of rent up to the date on which possession of the premises was handed over to the petitioners through execution proceedings, in accordance with law. No order as to costs.

Announced.

JUDGE

(S.B) Hon’ble Mr. Justice Muhammad Naeem Anwar.

Asif Jan Sr. S.S