PLJ 2015 Peshawar
versus
W.P. No. 3099 of 2011,
decided on 3.12.2014.
----Art.
199--Urban Rent Restriction Ordinance, (VI of 1959), S. 13--Constitutional petition--Default
in payment of rent--No relationship of landlord and tenant--Question of--Whether
relationship of landlord and tenant existed between parties--Determination--No
receipt regarding payment of rent was produced--Validity--A person may be owner
but not a landlord--Pivotal question for determination before Controller is
that of relationship of landlord and tenant--Opinion regarding existence of
relationship of landlord and tenant on decision of 'Musalehati Committee' where petitioner is stated to have admitted factum of
tenancy in respect of suit house--Heavy burden lies on landlord to prove
decision of 'Musalehati Committee' but it is with dismay that
he has not examined even a single witness of jirga to
substantiate his plea regarding its decision--Appellate Court by forming
opinion regarding existence of relationship of landlord and tenant on decision
of 'Musalehati Committee' in attending circumstances
of case has landed into fields of error--Petition was allowed.
[Pp. 123 & 124] A, B & C
Date
of hearing: 3.12.2014.
Judgment
Syed Afsar Shah, J.--Through the instant writ petition under
Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, Fazal Raziq, the petitioner has
made a prayer that:
"On
accepting the petition in hand the impugned order may kindly be held null
and void and of no legal effect and on setting it aside the order of the
learned Rent Controller, Mardan dismissing the rent
petition may kindly be restored with costs throughout".
2. The facts leading to the filing of the
instant petition are that on 29.6.2010, Haji Sher Zaman, the respondent
(landlord) filed a petition for ejectment of the
petitioner, Fazal Raziq
(tenant) from a house situated in Mohallah Aziz Abad,
Shamsi Road, Mardan under Section
13 of the Urban Rent Restriction Ordinance, 1959 mainly on the ground of
default in the payment of rent. When put on notice by the learned Rent
Controller, the petitioner/tenant contested the petition inter alia, on the ground that there is no relationship of landlord
and tenant between the parties. In view of the allegation and assertion of the
parties, the learned Rent Controller framed a preliminary issue regarding the
existence of relationship of landlord and tenant, whereafter
parties were allowed to adduce their evidence which was recorded and finally
dismissed the petition vide its
judgment dated 17.5.2011 and aggrieved of the same the respondent filed appeal
in the Court of learned Additional District Judge-II, Mardan.
The learned appellate forum vide its
judgment dated 20.9.2011 by allowing the appeal set aside the judgment of the
learned lower Court and as a consequence thereof accepted the ejectment petition which is now impugned by the petitioner
by filing the instant writ petition.
3. We have heard arguments of the learned
counsel for the parties, gone through the record of the case and perused the
relevant law on the subject as well.
4. The moot question which falls for
determination before this Court is to see as to whether the relationship of landlord
and tenant exists between the parties and in which respect we would like to
refer to the evidence and record available on file. It is the claim of the
respondent that initially the suit house was given to the mother of the petitioner
on lease on payment of rent at the rate of Rs.500/- per month, that for the
last 3½ years the petitioner had stopped the payment of monthly rent. That
later on in order to resolve the controversy between the parties a Jirga was convened where the petitioner admitted the factum
of tenancy. Appearing as PW-1 attorney of the respondent has stated in support
of the petition, however, during the cross-examination he admitted that he
could not produce any receipt whatsoever, regarding the payment of rent. He has
also admitted that he could not produce any witness in whose presence the rent
has every been paid to him by the respondent.
According to him not a single utility bill with respect to the premises in
dispute is on their name. Rooh Ullah
who has been examined as PW-2 has admitted that he cannot specify the date,
time and place on which they have received the rent from the petitioner in
respect of the suit premises. While going through the record of the case one
could reach to an irresistible conclusion that there is nothing on the same
which could show the payment of rent by the petitioner to the respondent. There
is no tenancy agreement between the parties. The learned appellate forum by
adhering to the question of title has misconceived the situation in that in the
matters of ejectment question of title is absolutely
irrelevant. By now, it is more than settled that a person may be owner but not
a landlord. Similarly, he may be landlord but not an owner. The pivotal
question for determination before the Controller is that of relationship of landlord
and tenant. In the case of "Anwar
Khan vs. Abdul Munaf" (2004 SCMR-126), it
was observed by their Lordships that question of title has no relevancy in
proceedings in rent cases as the pivotal point needs determination would be the
relationship of landlord and tenant. The above view was reiterated by the august
Supreme Court in the case of "Amin and others vs. Hafiz Ghulam
Muhammad and others" (PLD 2006 SC-549), where it was ruled by the apex
Court that in ejectment matter; the question of title
is not relevant. A similar question was attended by this Court in the case of "Muhammad Daud
vs. Mst. Surriya Iqbal and another" (PLD 2000 Peshawar 54), where
the views of the apex Court were followed by observing that:
"the question of title would have no relevance in the
proceedings in rent case before the Rent Controller as there the point of
existence of relationship of landlord and tenant would be the determining
factor and the Rent Controller can hold whether the relationship of landlord
and tenant exists between the parties after recording pro and contra
evidence".
5. Again as is evident from the record, the
learned appellate forum has formed his opinion regarding the existence of
relationship of landlord and tenant on the decision of 'Musalehati Committee' where the petitioner is stated to have admitted the factum
of tenancy in respect of the suit house. Appearing as RW-1 Fazal
Raziq, the petitioner has disowned the decision of
the 'Musalehati Committee' on the ground that his
signatures were obtained on a blank paper on
condition that the controversy would be resolved
in accordance with Shariah. Heavy burden lies on the
respondent/landlord to prove the decision of the 'Musalehati Committee' but it is with dismay that he has not examined even a
single witness of the Jirga to substantiate his plea
regarding its decision. The learned appellate Court by forming opinion
regarding the existence of relationship of landlord and tenant on the decision
of the 'Musalehati Committee' in the attending
circumstances of the case has landed into the fields of error.
6. In view of the above, the petition is allowed
resultantly, the judgment rendered by learned Additional District Judge-II, Mardan is set aside and as a consequence thereof by
restoring the judgment of the learned Rent Controller dismiss the ejectment petition.
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