Anjum Saeed Khan Kundi VS Mst. Hayat Bibi

2013 M L D 1089

[Peshawar]

Before Qaiser Rashid Khan and Rooh-ul-Amin Khan, JJ

ANJUM SAEED KHAN KUNDI---Petitioner

Versus

Mst. HAYAT BIBI and others---Respondents

Writ Petition No.224-D of 2012, decided on 9th January, 2013.

(a)West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13---Constitution of Pakistan, Art.199---Constitutional petition---Ejectment application--- Relationship of landlord and tenant---Respondent/landlord had proved the ownership of suit house---Petitioner denied the relationship of landlord and tenant, thus the burden of proof heavily shifted on him to prove his title---Petitioner though in his written reply had challenged ownership of the house in question, but could not prove the same through oral or documentary evidence--- Constitutional petition was dismissed being bereft of any meritable consideration.

(b)West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13---Ejectment application---Non-appearance of landlord or his attorney before Trial Court---No absolute rule existed that in every case, the landlord must appear in person in support of his claim; and exceptions could always be there when on account of some unavoidable circumstances it was not possible for the landlord to appear and support his plea.

Sardar Nabeel Wali v. The Additional District Judge Sahiwal and others PLD 2000 SC 829 rel.

Muhammad Daud Khan and Muhammad Yousaf Khan for Petitioner.

Ehsan Ullah Khan and Tehsin Alamdar Shah for Respondents.

Date of hearing: 9th January, 2013.

JUDGMENT

ROOH-UL-AMIN KHAN, J.---Through the instant writ petition, the petitioner, namely, Anjum Saeed Khan Kundi, has prayed for setting aside the concurrent findings of the learned two courts below dated 30-1-2012 and 6-4-2012, whereby the petition of Mst. Hayat Bibi respondent for eviction of the petitioner and recovery of rent against him was decreed.

2.According to the averments made in the plaint, the respondent is owner of house No.2096 situated in Mohallah Bagaiwala, Rehmania Street, D.I.Khan city which is fully described in the plaint which she had rented to the petitioner on monthly rent of Rs.5000, but when he failed to pay the rent for two years, the respondent filed the present suit for his eviction from the suit house and recovery of rent amounting to Rs.1,20,000. She averred in the plaint that the petitioner is a wilful defaulter who has damaged the suit house which need immediate repair; that the suit house is required for her personal need; that the behavior of the petitioner was immodest towards her and that the period of rent agreement had also expired.

3.The petitioner contested the suit by filing written reply and the divergent stances of the parties gave birth to the framing of ten issues including the relief. On weighing the evidence brought on record in the light of arguments of the learned counsel for the parties, the learned Civil Judge-II/Rent Controller D.I.Khan decreed the suit of the respondent, whereagainst the appeal of the petitioner could not succeed vide judgments and decrees mentioned above, hence this writ petition.

4.Learned counsel for the petitioner argued that the impugned judgments and decrees of both the courts below are against law and facts and are based on mis-reading/non-reading of material evidence. He argued that the respondent had failed to prove the relationship of landlord and tenant, therefore, her suit was liable to be dismissed. His submission was that neither the respondent nor her attorney had appeared before the trial court and her only witness appeared as P.W.1 had also not confirmed her ownership. The learned counsel thus argued that both the courts below have not properly appraised the materials brought on record while passing the impugned findings which are liable to be set at naught.

4.On the other hand learned counsel for the respondent defended the impugned findings on the grounds mentioned therein.

5.Arguments heard and record perused.

6.The record reveals that the respondent has proved the ownership of the suit house to the extent of 75/80 shares on the basis of registered deed bearing Wasiqa No.609, Bhai No.1, volume No.910 dated 18-3-2009 and the remaining 5/80 shares as inheritance from her deceased-husband Samander Khan. The petitioner though in his written reply had alleged ownership of the house in question, but could not prove the same through oral or documentary

evidence. The oral witnesses produced by the petitioner have also recorded contradictory statements regarding his ownership.

7.In the instant suit for ejectment under section 13 of the Urban Rent Restriction Ordinance, the present petitioner has denied the relationship of landlord and tenant, thus the burden of proof heavily shifts to him to prove his title, but he has failed to discharge the same satisfactorily. He has not produced a single document regarding his title of the suit property and the oral witnesses produced by him have also recorded contradictory statements regarding his ownership. Liaqat Ali Khan examined as RW-1 on behalf of the petitioner stated that the suit house was gifted to the petitioner by his maternal uncle, while Asmatullah appeared in the witness box as RW-2 deposed that the suit house was gifted to the petitioner by one Miss Amina Bibi. Besides these glaring contradictions in the statements of RW-1 and 2, the petitioner during cross-examination has admitted that the suit house was the ownership of one Ghulam Sarwar. He has not stated that what was his relationship with the said Ghulam Sarwar. On the contrary, the plaintiff/respondent through documentary evidence has proved her title about the suit house and the petitioner has failed to rebut the same through oral or documentary evidence. Therefore, her suit has rightly been decreed through the impugned findings which being based on correct legal footings need no interference.

7(sic) So far the argument of the learned counsel for the petitioner that neither the respondent nor her attorney, had appeared before the trial court is concerned, suffice it say that no absolute rule has been laid down that in every case, the landlord must appear in person in support of his claim, because exceptions could always be there when on account of some unavoidable circumstances, it was not possible for the landlord to enter in the witness box to support his plea. Reliance in this respect may be placed on the case titled Sardar Nabeel Wali v. The Additional District Judge Sahiwal and others (PLD 2000 Supreme Court 829).

8.For the reasons stated above, we have come to the irresistible conclusion that the impugned judgments and decrees are the result of proper appraisal of evidence brought on record and need no interference by this court in exercise of its extra ordinary constitutional jurisdiction. The writ petition being bereft of any meritable consideration is accordingly dismissed leaving the parties bear their own costs.

JJK/73/P Petition dismissed.