Rehmat Ghani VS Taimur Khan & others.

JUDGMENT SHEET

IN THE PESHAWARHIGH COURT,

MTNGORA BENCH (DAR-UL-QAZA), SWAT

(ludicial Department) W.P. No. 477-Ml20l6

JADGMENT

Date of hearing: 20.3.2018

Petitioner:-(Rehmut Ghani) bv Mr. Ghufran Ahsd, Advocste.

Resoonden ,s.'- ur Khan & otheril bv Mr. Abdul Hulim Khan Advocate.

M OHAMMAD IBRAHIM KHAN. J .- The sons of Muhammad Sherin Khan by the names of Taimur Khan, Atta Ullah, Ikram Ullah Khan and Rafi Ullah Khan have joined hands by filing their application for ejectment of Rahmat Ullah and Wazir sons of Abdul Qadir of a house the boundaries of which are given in Para 'Alif' of the plaint and there is a recovery prayer 'Bay' for an amount of Rs. 3,6001- on account of rent due from January 2009 to December 2009 @ Rs. 300/- per month and onwards from January 2010 till vacation of the suit house by the Defendants (herein is one of, the Petitioner).

I ,)-

The parties hail from District Malakand where this house is situated. It was given on rent by father of the Plaintiffs (herein the Respondents Na*ab (S.8.) Hon'ble )tr. Justice llohammad Ibrshim Khan

No. 1 to 4) by the name of Muhammad Sherin Khan whose soul has since been departed. The period for which the recovery of rent is required the Defendants (herein is one of, the Petitioner) have defaulted. The Defendants (herein is one of, the Petitioner) have also carried out the constructior/improvements in the suit house due to which its value has been considerably decreased. In-fact this act is nothing but to keep the Plaintiffs (herein the Respondents No. 1 to

4)to deprive them of their ownership rights as well as it tentamounts to denial of their relationship as landlords and tenants. Many times notices have been issued for vacation of the premises (suit house) but altogether the Defendants (herein is one of, the Petitioner.l never paid any heed to it, thus, they be ejected from the premises ofthe house and recovery of rent be also effected from them.

,)- ) This claim was hotly resisted by the Defendants (herein is one of, the Petitioner) on many legal and factual grounds. The leamed Rent Controller on the basis of averments taken Nswib (S.8.) llon'ble [Ir. Justic€ ]llohammad Ibrshim Khao

J

in the pleadings of the parties framed the following sole issue:-

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3.Then the parties were given opportunity to adduce their respective evidence, which was accordingly led on behalf of both the sides. Earlier, the Court of leamed Civil Judge- Illlllaqa Qazi Malakand at Batkhela with powers of Rent Controller was pleased to pass an ejectment order by granting a decree dated 23.12.2011 to the extent of ejectment of the Defendants (herein is one of, the Petitioner) from the house in question.

4 Next off, the matter was taken up before the learned appellate Court through Rent Appeal No. I of 2012 preferred by the Appellant Rahmat Ghani, which was allowed by the learned District ludge/Izafr Zila Qazi r lt-)-. Malakand at Batkhela vide the judgment dated 06.06.2012 and the matter was remitted back to the learned Rent Controller for delivery of findings on the additional issues No. I & 2 Nawab (S.8.) Hoo'ble Nlr. Justice lohammad lbrrhim Khan

framed by the learned appellate Court with further direction to appoint a commission for assessment of the improvements made by the Defendants (herein is one of, the Petitioner) in the house in question.

Feeling aggrieved from the remand order, the Plaintiffs (herein the Respondents No.

lto 4) prefened writ petition bearing No. 344-M of 2012 before this Court which was later on converted into Regular Second Appeal bearing No.21-M of 2014 and on 22.01.2015 it was decided in the following manner:- "Upshol of the above discussion is thal the impugned judgment of lhe learned lower appellale Court is not legal, therefore, this Regular Second Appeal is accepted and the impugned judgment is set aside. Consequenlly, lhe case is sent back to the learned lower appellate Court to decide the respondents' appeal on merit in lerms menlioned above."

t ,/- Consequent to the above-referred f, directives of this Court, the learned District JudgelZila Qazi Malakand at Batkhela upon delivery of detailed findings on merits dismissed the appeal bearing No.l/RA Neem of Nawsb (S.8.) llon'ble N{r, Justice Mohrmmad lbrrhim Xhsn

2015 vide the impugned judgment dated

6.This is a writ petitiotbearing 477- M of 2016 preferred by the tenant Rahmat Ghani against his landlords Taimur Khan & others in utter denial of the relationship inter-se existed in between the parties with the following perspective prayer: -

" It is therefore, humbly pruyed that on accepting of this writ petition the impugned orders, judgments and decrees of both the lower Courts dsted 23.12.2011 & 21.6.2016 may kindly be set uside und suit of Respondents No. lto 4 may please be dismissed with cost,"

7 Having heard arguments of learned counsel for the parties, the available record placed on file perused with their able assistance.

,/_ 8 Leamed counsel for the Petitioner r^ I referred to 1991 SCMR 1376 " Abdul Hameed Nsz and 7 others V/S Mst. Razia Besam Awan and 4 otherst', 1983 SCMR 1064 Rehmatullah V/S Ali Muhammsd and Na\yab (S.B,) Hoo'blc Nlr, Justice Mohammrd Ibrahim Khsn

another". 1991 SCMR 275 " Shuukat Javed V/S Sh. Abdul Khaliq qnd 2 others' ,, 1gg1 CLC 1364 (Lahord "A bdul Hsfiz Khan V/S Muhummsd Anwsr und others", 1994 SCMR 572" Umsr Hwst Khan V/S Invatulluh Butt and otherstt, 1997 MLD 2262 (Karachi) Afzal Ali V/S Azhar Isbal" und 1989 CLC 106 " Vl/uzeeruddin V/S Khalid Masood". ln the light of wisdom contained in these verdicts of the Hon'ble superior Courts prayed for acceptance of the writ petition with specific and loud claim that in between the parties there is no relationship of landlords and tenant ever existed. On the other hand, learned counsel for the Respondents placed reliance on 2000 SCMR 556 " Burkst Ali V/S Muhammad Ehsan und snother", 2002 SCMR 429 "Muhammad Hanif und another V/S Muhsmmud Jumil Turk and 5 others",2000 CLC 1841 rachi) l t)- f " Saifullsh and snother V/S Ch. Ghulam Ghous" and thereby prayed for utter dismissal of the petition in hand, as all the learned fora below have unanimously dismissed the claim Na\rab (S.B.) Hon'bh Mr. Justice Nlohammad Ibrrhim Khsn

of Defendants (herein is one of, the Petitioner) being tenant under the Respondents No. I to 4 (hereinbefore called the Plaintiffs).

9.Before the evidence of the parties is to be appreciated in the light of relationship of landlord and tenant, its refusal on the part of Petitioner (hereinbefore called as one of the Defendants), let it be more clear in terms of definition of landlord. According to the West Pakistan Urban Rent Restriction Rent Ordinance, 1959 the term "landlord" has been defined:-

"Any person for the time being enlilled to receive rent in respect of any building or rented land whelher of his own occount or on behalf or for the benefil of any other person, ot as lruslee, guardian, receiver, executor or administrator for any other person, and includes a tenant, who sublets any building or rented land in the manner (r t/-- hereinafter authorized and every person from time to lime deriving litle under o londlord,"

In this case the actual landlord was Muhammad Sherin Khan deceased, the present Newrb (S.8.) Hon'ble Mr, Justice ltohsmmad lbrohim Khan

Respondents No. I to 4 (hereinbefore the Plaintiffs) are his sons. The successors-in- interest of original landlord enjoys the status of landlord, in this regard reference can be had of 1991 CLC Note 9 (P-6), This relationship in between the parties has been established by way of the rent agreements in between the deceased Muhammad Sherin Khan through Ex. PW-1/2 and Ex. PW-l/3. On execution of these deeds, it has been candidly put as condition that while the rent was fixed Rs. 30/- per month it initiated from 01/01/1986 and later on the rent was increased @ Rs. 100/-. The terms and conditions would further reveal that if for anv personal requirement this house is required to the said Muhammad Sherin Khan (since deceased) the landlord, it will be vacated in his favour after a notice of one month is served upon the tenants and this house will never be ,'r";-. sublet to any other person without permission of v-- the landlord (Late Muhammad Sherin Khan).

True, this relationship has been

denied by the Petitioner (hereinbefore called Nawsb (S.B.) Hon'bleMr. Justite Mohsmmsd lbrahim Khrn

one of the Defendants). It was the requirement by the learned Rent Controller to have framed only one issue with regard to the existence or otherwise of the relationship of landlord and tenant between the parties, which sole issue could resolve the controversy in between the parties. This judicial consideration for framing of this issue has finally been resolved in this case by the judgment as contained in Regular Second Appeal No. 21-M of2014. So, there can be no further objection in this behalf.

10.Searching for the evidence besides the Plaintiffs (herein the Respondents No. I to 4), the brothers have been represented by Taimur Khan the elder brother of the other three

(3)brothers by the names of Atta Ullah, Ikram Ullah Khan and Rafi Ullah Khan examined as PW-l and in his support PW-2 Pervaiz and PW- 5 Wisal Muhammad recorded their statements tb/- {^ as PW-3 and PW-4 have been abandoned. When the statements of the Defendants (herein is one of, the Petitioner) DW-l Rahmat Ghani, DW-2 Umar Ghani and DW-3 Gul Muhammad are Nawab (S.8.) Hon'ble lltr. Justice Moh&mmsd Ibrahim Khsn

appreciated. All the witnesses in support of the Defendants (herein is one of, the Petitioner) have admitted that this house belong to Muhammad Sherin Khan and even the

surrounding lands are also owned by him.

Where such like admissions are available on the file then mere denial of relationship of the landlord and tenant in between the parties would only to deprive the Plaintiffs (herein the Respondents No. 1 to 4) from the legacy of their father. The successors-in-interest have stepped into the shoes of their father Muhammad Sherin Khan (deceased) and thereby this relationship of landlord and tenant from the time of the rent agreements, which have been proved by its marginal witnesses stand established.

11.Learned counsel for the Petitioner (hereinbefore called one of the Defendants) has oome up with an objection that the petition for t d_ f ejectment is bad for non-joinder of the necessary parties and that the present Plaintiffs (herein the Respondents No. I to 4) have no right to ask for ejectment of the premises of the Newrb (S.8.) Hon'ble iur. Justice Ntohsmmsd lbrrhim Khsn

house or for the recovery of rent of Rs. 3600/- from l" January 2009 to December 2009 which comes @ Rs. 300/- per month. This aspect requires consideration. Indeed in the statement of PW-l Taimur Khan, he has in his cross- examination admitted:-

r}'a lFJr aLi. eU-)- r.-- J,F S ; C.r.^r1r ,...r'r 4 -ct )$ "..-:J :l: cre U+r1; dtr JJt ti oJlJ u# ,-!-rs uJJIl" gg. tri ''"tJs-1.1 5 i cr-^,,;: ,r-4

This suit could be bad for non- joining of the mother and sisters of the Plaintiffs (herein the Respondents No. 1 to 4) but where one of the legal heir of the deceased Muhammad Sherin Khan being a successor-in- interest has established to be the lawful owner under the legacy ofhis father and the house was rented to the Petitioner (hereinbefore one ofthe Defendants) then the Hon'ble Supreme Court of I ,/- Pakistan in 2002 SCMR 429 "Muhammsd f Hunif and unother V/S Muhummad Jamil Turk and 5 others" has clarified the filing of an ejectment application by the sole co-sharer in the following manner:-

Nawrb (S.8.) Hon'blc Mr, Justice Nlohammad Ibrahim Khan

Co-sharer con lik ejectment petition against the tenant without impleading other co-shorers as one co-sharer acls on behalf of all the co-sharers of the propeily and rcpresent their interestt t.

This view has further been adopted by the Hon'ble Sind High Court at Karachi in 2000 CLC 1841 'Suifullah and another V/S Ch ulum Ghous wherein the relevant citation speaks of:-

'tS. 15, Entillement of co-sharer to file ejectmenl application. So- sharer was perfectly entitled to Jile ejectment proceedings witho ut impleading other co-shar er s ".

12.The law on the subject is that for smooth administration of justice legal formalities and technicalities, its principle object behind all legal formalities is to safeguard the paramount interest of justice.

d^ ir- Legal precepts were devised with a view to impart certainty, consistency and uniformity to the administration of justice and to secure same against arbitrariness, erors of individual judgment and mala fide. The wisdom contained Nswab (S.B,) Hon'ble Ntr. Justice Nlohammad lbrrhim Khsr

herein also reflects that where such like proceedings are carried out under the West Pakistan Urban Rent Restriction Ordinance (VI) of 1959 these are not stricto in judicial sense. It is only the satisfaction of the Rent Controller alone on the basis of material available on the record to decide whether or not an order of the eviction is to be passed in the given case. In the case in hand, the learned Rent Controller has properly appreciated the evidence. Admittedly the suit premises was the ownership of Muhammad Sherin Khan (deceased) father of the present Plaintiffs (herein the Respondents No. I to 4). In no way the present Petitioner has ever established as to why this relationship is denied. Father of the Respondents No. I to 4 (hereinbefore called the Plaintiffs) properly executed rent agreements to this effect and the same are available on record. Thus, the f ,r4 relationship of landlord and tenant between the parties cannot be denied.

13.It is expressly given in 1991 SCMR 1376 in Abdul Hsmeed Naz qnd 7 others V/S Nawrb (S,8.) Hon'ble Mr. Justice Mohammrd Ibrahim Khsn

MsL Raz.ia Bepum Awan and 4 others" that where the denial of relationship of landlord and tenant exist between the parties and where such relationship is at stake, thereby the landlord's failure to establish his title of property ln question then the jurisdiction would not rest with the Rent Controller rather it is for the Civil Court to be approached for the establishment of the title. In order to inculcate the true spirit of this legal principle the relevant citation of ibid judgment is reproduced as under:-

"Renl Conlroller could not decide question of relalionship of landlord and lenant against tenant when landlord had failed to establish his posilion as landlord beyond reasonable doubt. Rent Controller would be required to decide the issue of such relationship dgainst the landlord and advise him to first get his titled established before I ,;- seeking ejeclment,"

With all due respect and admirations for the ratio decidendi settled in the above referred judgment, this is not a case here as the Plaintiffs (herein the Respondents Newsb (S,8.) Hoo'ble Mr. Jusric€ Mohsmmad Ibrahim Khen

No. 1 to 4) have duly proved their ownership, the rent deeds have been executed and here these facts have been admitted in the statements of Defendants (herein one of the Petitioner) and their witnesses. The Petitioner (hereinbefore one of the Defendants) and witnesses statements which are sufficient, besides the execution of rent deeds as referred to for acceptance of the petition before the learned Rent Controller for ejectment of the Petitioner (hereinbefore called the one of Defendants ) and of course for the recovery ofthe rent at the same rate as given in head-note "Bay" of the ejectment petition which on account of denial of this relationship has never been paid. The learned Rent Controller's judgment in this behalf is silent in respect of recovery of the due rent which order is also carried out accordingly. Resultantly, this petition has no force before this Court, which is hereby dismissed with cost.

Announced r- d_ Dt:20.3.2018 JUDGE

B

i;,(.r' Nrwab (S.B.) Hon'ble lllr. Justice l\lohimmad Ibrahim Khan