Mst. Rukhsana Vs Asif Ullah & others

.Iundgmemt Sheet

M[ THE, PESEilAWAR.HIGH CO{JR , PMSffiAWAR.

WDTCTAT.MMPART&{MNT.

JUDGMENT

Writ Petitiorn No. I 200 -P IZ0ZZ " Date of hearing 08"05.2023.

Mst. Rukhsana I/s Asif Ulnah amd others.

Fetitioner (s) by; Mr. Adnan Aman ddvocate.

R.espondent(s) by: IVnr. Umar Nasir Advocate.

WIOAR AI{NNAD. .T" Through this petition fitred under Article 199 of the Constitution of Islamic Republic of Pakistan 1973, petitioner Mst.Rukhsana has ohaXlenged impugned judgrnent and order dated 16.09.2021 rendered by leamed Additional District Judge-VII, Peshawar, whereby appeal of petitioner against inrpugned Judgrnent & order dated,27.03.2019 of learned Rent Controller-Il, Peshawar, was dismissed

", Fetitioner had fitred an ejectment petition under Section 13 of the West Pakistan urban Rent Restriction Ordinance tr959, before

leamed Rent Controller Peshawar against respondent No.l for his eviction frorn shop No.4 situated in Flaji Sufaid Gul Plaza, being her legacy after death ofher father Flaji Sufaid Gul. Respondent No.l contested same by filing written repXy, denying petitioner to be her landlady and stated that tre used to pay rents to one Ghularn Sabir. Out of divergent pleadings of the parties, the learned Tribunal framed certain issues and directed parties to produce their respective evidence" The learned Tribunal after recording pro and contra evidence and hearing learned counsel for the parties, dismissed ejectment petition of, petitioner vide order dated 27.03.2019. Appeal filed against said judgment and order, was also dismissed by leamed ,{ppellate Forum vide judgment dated rc"49.2421, hence this writ petition.

.l Arguments heard and record gone through

4 Ferusal of record reveals that

learned Rent Controller as well as appellate Forurn has no doubt held that petitioner has

failed in proving existence of relationship of landlord and tenant but while returning such findings both forums have wrongly drawn conclusions from material present before it This Court while seized with instant constitution petition has got lirnited scope in respect ofdeciding upon factual aspects ofcase but even then this Court is not supposed to re- enforce the mistakes cornmitted by both learned Courts betrow. Material present on record is therefore, re-assessed

5 Adrnitted facts of case are that respondent Asif Ullah had been inducted in the shop as tenant by Haji Sufaid Gul, who was predecessor ln interest of petitioner.

Respondent Asif Ullah has not denied said fact in reply. F{e has also not denied the fact that petitioner has been daughter of Haji Sufaid Gul (his former landlord), he has instead given an evasive reply by stating that he had got no knowledge that petitioner had been daughter of his forrner landlord. Respondent No.l has also taken a plea in his comrnents that husband of

another daughter of Ha.ji Sufaid Gul (late) namely Ghulam Sabir used to receive rnonthly rent from him initially and that later, on his refusal to receive rent, respondent No.l had been sending rent through money order.

Fetitioner appeared before learned Rent Controller and recorded her staternent as pw.l, where in reply to first question asked in cross examination, she had fully given details of her relationship with Flaji Sufaid Gul. She has stated that she alongwith three other daughters had been survived by Haji Sufaid Gul. It also needs mention that copy of mutation No. 2726 attested on 05.09.2014 was produced by her in examination in chief, which was brought on record as "Annex-A". Through this mutation shop in dispute had been gifted in favour of petitioner by trer mother namely IVIst. Khatoon bint-e-Noor Muharnmad wife of Sufaid Gul (late). Although this mutation has nor been exhibited in evidence but instant being rent proceedings where Qanun-e-Shahadat Order 1984 was not applicable and requirement for

proving documents laid therein cannot be applied in this proceeding. Same was situation with provision of Civil Frocedr.lre Code, which were also not applicable to the proceedings.

This rnutation has not been challenged by any other legal heirs of Haji Sufaid Gul (late). None frorn them had come forward for contesting clairn of petitioner either at original forum of Rent Controller or appellate forum or this Court; which shows that there is no dispr.lte amongst legal heirs in respect of distribution and receipt of legacy of Haji Sufaid Gul or his wife i.e, Khatoon. Learned R.ent Controller was not supposed to decide question of title between legal heirs of Haji Sufaid Gul (late) particularly when no person had disputed claim of petitioner before said forurn. A tenant cannot be allowed to choose one of legal heir of deceased as his new landlord. Factum of refusal in respect ofreceipt ofrent by husband ofanother sister of petitioner as stated in Fara 2 of reply, even if taken to be correct, would rnean that they had not been interested in the shop, being

handed over to another legal heir of Haji Sufaid Gul, i"e, to petitioner. This inference can validly be drawn in favour of petitioner.

6.Respondent have not displayed his bonafide in the whole affair. When petition had filed his ejectrnent, he had been contesting elaim of petitioner to be landlord of the prernises. Nothing oould be brought on reoord by him showing that other legal heirs of Haji Sufaid Gul has ever disputed clairn of petitioner. IVIain factor that prevailed with the forum below was that petitioner had not brought any rent agreement or rent receipt on record so as to establish existence of relationship of landlord and tenant between parties" Such affirrnative evidence is not always required particularly when a person claimant to have stepped into shoes of landlord by way of devolution of gift through inheritance. Hon'ble Supreme Court of Fakistan while giving its judgment in case of 66Shaian Islam Vs Mutnarnrnad Siddioue and 2 others" renonted as (2007 SCMIT. 45) has held that

tenancy would not be necessarily created by a written instrument in express terms, rather it might also be oral and implied. In case of ,.I{aii ,dbdullah Jam Vs dmwan Khan" ren orted as LI) 2000 sc 7I Flon'ble Supreme Court of Pakistan has held that eviction application could be frled by a co-owner without joining other as oo-owner was a landlord according to definition of "landlord" provided in clause (c) of section 2 ofthe Ordinance.

1 If, tenancy rights are inheritable then rights of landlords are also inheritable and if same are claimed by one co-owner and not disputed by other co-owners then claim of one co-owner would be sufficient even without express consent or permission of other co- owners" Reliance in this respeot rnay be placed on judgment of Hon'ble Supreme Court of Pakistan g iven in case of, ou,{mwatr Khan Vs Abdul Nfiarnaf're norted as (2 004 scMR 26).

I In light of what has been discussed above, it was quiet apparent that both Courts below while disrnissing ejectrnent of petitioner

has not only drawn wrong conclusion from material present before it but has also ignored well established principles upheld by Hon'ble Supreme Court of Pakistan in above ref,erred judgments. This Court even while looking the case in the lirnited domain, cannot be a contributory to said mistakes and would not perpetuate injustice. Besides, concurrent f,rndings of facts if found contrary to the evidence and the result of misapplication of Xaw, could be interfered in constitutional .jurisdiction on the ground of unreasonableness.

Therefore, it is quite safe to conclude that leamed lower Courts have not exeroised their jurisdiction properly and fairly hence this Court can competently undo such illegalities. Even otherwise, Courts of law are not supposed to perpetuate what is unjust and unf,air by exptroring explanation therefor. They should rather explore ways and means for undoing what is tmjust and unfair. Reliance in this respect may be placed on the .judgment of august Supreme Court of Fakistan given in case

of 'olWuhamrnad hlawaz alias Flawaza" remorted as t2014 SClVTR 9f 4). Instant constitution petition is allowed and resultantly both irnpugned.judgments and orders of learned Courts below are set aside and resultantly eviction petition of petitioner is allowed as prayed for. Respondent shall however be given time of three rnonths from today for vacating premlses.

Annaunced.

T GE

(sB)EN'bL L hda VqE Ahda.l