Faqir Muhammad Vs Abdul Hameed Khan

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

MINGORA BENCH (DAR-UL-QAZA), SWAT

(Judicial Department)

R.S.A No. 02-M/2026 (Faqir Muhammad Versus Abdul Hameed Khan) Present:

Mr. Rahman Ali, Advocate for appellant.

Mr. Kaleem Ullah Khan, Advocate for respondent.

Date of hearing: 27.07.2026

Date of announcement: 31.07.2026

J UDG MENT

QAZI JAWAD EHSANULLAH, J.- Through the instant Regular Second Appeal, appellant Faqir Muhammad has called in question the judgment and decree dated 30.04.2026, passed by the learned Additional District Judge/Izafi Zilla Qazi, Matta, District Swat, whereby his appeal was dismissed and the judgment and decree dated 08.12.2025 of the learned Civil Judge/Rent Controller, Matta, decreeing the suit of respondent Abdul Hameed Khan for possession/ejectment of the demised shop, was maintained.

2.Briefly stated, respondent Abdul Hameed Khan instituted a suit for possession/ejectment of the shop in question against appellant Faqir Muhammad on 03.09.2024, asserting that the demised premises were required by him for his personal use. Upon notice, the appellant appeared Tajamul/CS* | Hon’ble Mr. Justice Qazi Jawad Ehsanullah

before the Court and contested the suit through written statement mainly asserting that he has established his business in the shop in the past 40/45 years and has been paying the rent regularly. He also alleged that the respondent/plaintiff had filed the suit with mala fide intention just to cause loss to his business. From the divergent pleadings of the parties, the learned Rent Controller framed issues on 29.04.2025, whereafter both sides were afforded opportunity to adduce their respective evidence. The record further shows that amended issues were framed on the date of decision. Upon conclusion of the trial, the learned Rent Controller, vide judgment and decree dated 08.12.2025, decreed the suit in favour of the respondent and ordered ejectment of the appellant from the demised premises. Aggrieved therefrom, the appellant preferred a first rent appeal before the learned Additional District Judge/Ilaqa Zilla Qazi, Matta, on 24.01.2026, which was dismissed vide judgment and decree dated 30.04.2026, thereby maintaining the judgment and decree of the Rent Controller, hence the present appeal.

3.Arguments heard and record perused.

4.Learned counsel for the appellant, at the very outset, raised an objection touching the very jurisdiction of the learned trial Court. In support thereof, he produced a copy of Notification No.1612-17/E.B dated 14.05.2026, Tajamul/CS* | Hon’ble Mr. Justice Qazi Jawad Ehsanullah

issued by the learned District & Sessions Judge, Swat, whereby inter alia Civil Judge/Ilaqa Qazi-IV, Matta, was designated as Rent Controller for Matta Sub-Division. His contention was that since the judgment and decree under challenge before the first appellate Court had been passed on 08.12.2025, whereas the aforesaid notification was issued subsequently on 14.05.2026, the learned Civil Judge lacked jurisdiction to exercise the powers of Rent Controller on the date of decision; consequently, according to him, the entire proceedings culminating in the judgment and decree dated 08.12.2025 were coram non judice and a nullity.

5.The contention, though persuasive at first sight, proceeds on an erroneous assumption that the jurisdiction of the learned Civil Judge to function as Rent Controller originated from the Notification dated 14.05.2026. The statutory position is otherwise. Clause (b) of Section 2 of the West Pakistan Urban Rent Restriction Ordinance, 1959 defines “Controller” with reference to judicial officer appointed to perform the functions of Controller under the Ordinance. Soon after promulgation of the Ordinance, the competent Government, in exercise of the said statutory power, issued Notification No.HG-10-2/59 dated 12.03.1959, published in the Gazette Extraordinary on 16.03.1959, whereby Civil Judges of the specified classes were appointed to perform the functions of Controllers Tajamul/CS* | Hon’ble Mr. Justice Qazi Jawad Ehsanullah

within the limits of their respective civil jurisdictions. For facility of reference, the notification is reproduced below:

“WEST PAKISTAN URBAN RENT

RESTRICTION ORDINANCE, 1959

(Appointment of Controllers) No. HG-10-2/59, 12th March 1959, (Gazette Extraordinary, 16th March 1959). In pursuance of the provisions of clause (b) of section 2 of the West Pakistan Urban Rent Restriction Ordinance, 1959, the Governor of West Pakistan is pleased to appoint the following officers to perform the functions of Controllers under the said Ordinance in the urban areas within the limits of their respective civil jurisdictions :-

(1)All first and second class Civil Judges and Subordinate Judges in West Pakistan except Quetta and Kalat Divisions.

(2)All Senior Subordinate Judges and subordinate Judges in Quetta Division.

(3)All Civil Judges in Kalat Division.

6.The above notification furnishes a complete answer to the objection. The authority of a Civil Judge falling within its ambit to exercise the functions of Controller did not depend upon a fresh designation by the learned District & Sessions Judge. The notification dated 14.05.2026, relied upon by learned counsel for the appellant, therefore, cannot be construed as the source or conferment of jurisdiction for the first time. Rather, viewed in the backdrop of the subsisting statutory notification reproduced above, the subsequent notification was in the nature of an internal administrative arrangement specifying the Court/officer to deal with rent matters within Matta Sub-Division. An administrative allocation of business cannot be read so as to retrospectively extinguish a Tajamul/CS* | Hon’ble Mr. Justice Qazi Jawad Ehsanullah

jurisdiction already flowing from the statutory notification.

Thus, merely because Civil Judge/Ilaqa Qazi-IV, Matta, was specifically designated as Rent Controller through Notification No.1612-17/E.B dated 14.05.2026 would not lead to the conclusion that prior thereto the concerned Civil Judge at Matta was devoid of jurisdiction under the Ordinance. This is so because the Notification ibid relates to internal distribution of judicial work amongst the judicial officers of Tehsil Matta and not to conferment of jurisdiction. The objection that the judgment and decree dated 08.12.2025 are coram non judice is, accordingly, repelled.

7.Coming to the merits, the respondent instituted the proceedings seeking ejectment of the appellant from the demised shop on the ground of personal requirement. The appellant contested the claim and the parties were afforded opportunity to lead their respective evidence. Issues were initially framed on 29.04.2025 and, after recording the pro and contra evidence, the learned Rent Controller decreed the claim through judgment dated 08.12.2025. The appellant's first appeal, instituted on 24.01.2026, was thereafter dismissed by the learned Additional District Judge/Ilaqa Zilla Qazi, Matta, on 30.04.2026. Thus, there are concurrent findings of the two Courts below against the appellant.

Tajamul/CS* | Hon’ble Mr. Justice Qazi Jawad Ehsanullah

8.The main ground for ejectment was the

respondent-landlord's requirement of the demised premises for his own use. Section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 regulates eviction of tenants and permits the Controller to order ejectment upon satisfaction of the statutory grounds contemplated therein.

The record shows that the learned Rent Controller did not accept the respondent's assertion merely on its face; rather, the rival evidence was considered and the requirement pleaded by the respondent was found established. The learned first appellate Court below, while examining the challenge to that conclusion, concurred with the assessment of the Rent Controller. Nothing has been pointed out before this Court from the record which may prove that these concurrent conclusions are founded upon no evidence or that any material piece of evidence capable of altering the result has been altogether ignored.

9.Much emphasis has also been laid in the memorandum of appeal upon the alleged availability of alternative commercial premises with the respondent. The mere availability of some other property with a landlord, however, does not by itself falsify his bona fide requirement of the particular demised premises. In Sabu Mal v. Kika Ram alias Heman Das1, reiterated in Haroon Kassam v.

1973 SCMR 185

Tajamul/CS* | Hon’ble Mr. Justice Qazi Jawad Ehsanullah

Azam Suleman Madha2, the Supreme Court of Pakistan held that where a landlord owns more than one premises, the choice as to which one would suit his personal requirement primarily rests with him and cannot ordinarily be dictated by the tenant or the Rent Controller. The principle was also applied in the context of commercial premises in Muhammad Sharif v. Nisar Ahmad3. In the present case, both Courts below, upon appraisal of the evidence, concurrently found the respondent's personal requirement established; such finding does not warrant interference in second appellate jurisdiction in the absence of any material legal infirmity. In the present case, both the Courts below, upon appraisal of the evidence, have concurrently found the respondent's personal requirement established; such finding does not warrant interference in second appellate jurisdiction in the absence of any material legal infirmity.

10.The appellant has further questioned the proceedings on the ground that amended issues were framed on the date of judgment, i.e., 08.12.2025, without affording an opportunity to lead further evidence. The record indeed shows that issues had initially been framed on 29.04.2025 and the parties thereafter led their respective evidence; the memorandum of the present appeal also acknowledges that pro and contra evidence was recorded. The crucial

PLD 1990 SC 394

1988 SCMR 1587

Tajamul/CS* | Hon’ble Mr. Justice Qazi Jawad Ehsanullah

consideration, therefore, is not the mere date on which an issue was recast or amended, but whether thereby a new controversy was introduced on which the parties had neither notice nor opportunity to produce evidence, resulting in actual prejudice. The appellant has not been able to identify any such material prejudice or any evidence which he intended, but was prevented, from producing on account of the amendment. A procedural irregularity, divorced from demonstrable prejudice and having no effect upon the merits of the controversy, cannot by itself furnish a ground for setting aside concurrent adjudications.

11.The pleas concerning the appellant's long possession of the shop, the goodwill allegedly developed therein and improvements stated to have been made during the tenancy likewise do not displace an otherwise established statutory ground of ejectment. The duration of a tenancy does not convert the tenant's possessory right into an indefeasible entitlement to retain the premises against the landlord once a ground recognized by the Ordinance is proved. Likewise, the plea regarding absence or invalidity of notice has not been shown to have caused any jurisdictional defect in proceedings otherwise brought and adjudicated under the special rent law.

12.The learned first appellate Court was the final Court for reappraisal of the factual controversy and, through Tajamul/CS* | Hon’ble Mr. Justice Qazi Jawad Ehsanullah

judgment dated 30.04.2026, maintained the findings recorded by the learned Rent Controller on 08.12.2025. The jurisdiction at this stage is not intended to provide a third round of factual reappraisal. Interference with concurrent findings would be justified where a substantial question of law arises or the findings are shown to be perverse, based upon misreading or non-reading of material evidence, or otherwise suffer from a jurisdictional or legal defect. In Faqir Syed Anwar ud Din (deceased) through LRs v. Syed Raza Haider and others4, the Supreme Court reiterated that concurrent findings cannot be interfered with under section 100, C.P.C., unless they suffer from misreading of evidence, disregard of material evidence or perverse appreciation thereof, and that reappraisal of evidence by the second appellate Court is not permissible. Similar principle was reiterated in Zafar Iqbal and others v. Naseer Ahmed and others5. Thus, in the absence of any such legal infirmity or substantial question of law, the concurrent findings recorded by the two Courts below do not warrant interference.

13.There is yet another aspect of the matter. As recorded in the order dated 23.07.2026 of this Court, possession of the suit shop already stands delivered to the respondent/decree-holder during execution proceedings and

PLD 2025 SC 31

2022 SCMR 2006

Tajamul/CS* | Hon’ble Mr. Justice Qazi Jawad Ehsanullah

a compromise deed between the parties was also produced before this Court. Thus, quite apart from the concurrent findings of the Courts below, the decree under challenge has already been executed and the subsequent development has substantially rendered the controversy in the present appeal infructuous.

14.In view of the foregoing, particularly the subsequent development noted above, nothing further survives for determination in the present Regular Second Appeal, which is accordingly dismissed being devoid of merits as well as having become infructuous. No order as to costs.

Announced Dt:31.07.2026 -Sd-

JUDGE

Tajamul/CS* | Hon’ble Mr. Justice Qazi Jawad Ehsanullah