2010 PLP 473 (SCMR)

IFTIKHAR MUHAMMAD CHAUDHRY, CJ.

This appeal by leave of the Court directed against the judgment dated 18-6-2009 passed by learned Division Bench of the Peshawar High Court, Peshawar para. five there from is reproduced herein below:

"(5) The perusal of record would show that ground of subletting was proved by overwhelming evidence, and no illegality, or irregularity was committed by both the Courts below. The evidence was properly appreciated, and concurrent ejectment orders were passed by competent fora. The constitutional petition against such concurrent findings seems to be an effort of the petitioner tenant to perpetuate possession indefinitely with intent to hoodwink, and abuse the process of law. In the circumstances, the instant writ petition being without substance, is dismissed, leaving the parties to bear their own costs, and the petitioner is directed to vacate the premises within one month, positively."

2. Precisely the facts of the case are that on 24-3-2003 respondent instituted ejectment proceedings against appellant Shamshad son of Muhammad Azam Khan, alleging that he had sublette the premises, subject matter of proceedings i.e. Shop No.14 situated in Akbar Market, New Rampura Gate, Peshawar to one Khial Wali who was, cited as respondent No.2. Paras: 3 and 4 of the application under section 13 of the Ordinance 1959 are reproduced herein below for convenience:

3. The appellant contested the eviction application.

4. The learned trial Court framed issues and relevant Issues Nos.2 and 4 are reproduced herein below:

"(2) Whether the respondent has unlawfully sublet the disputed shop to respondent No.2? (4) Whether the legal notice dated 20-7-2002 was served upon the respondent No.1?

5. The relevant issue on being two rounds of litigation however, first round was culminated by the order of the High Court dated 3rd July, 2006 and the case was remanded to the Additional District Judge, Peshawar to decide the matter after hearing the parties in accordance with law. After remand appeal filed by the appellant vide order dated 2-11-2006 was dismissed. Against this order Writ Petition No.1953 of 2006 was filed which has been disposed of on 18-6-2009 relevant para of the judgment has been reproduced hereinabove.

6. Leave to appeal was granted to examine as to whether sufficient V evidence was available on record to prove the subletting.

7. Learned counsel for the appellant stated that there is absolutely no evidence to prove subletting. In this behalf he has referred to the oral as well as documentary evidence i.e. notice dated 20-7-2002 issued by the respondent to the appellant, according to which premises i.e. subject matter of proceedings had been sub-let to one Muhammad Shafi.

8. Further contended that this notice being a documentary evidence has been produced on record as Exh.P.W.1/2 by the respondent in his own evidence during his statement, according to him, the learned High Court as well as the Rent Controller without adhering this important aspect of the case had ordered for the ejectment of the appellant which is not sustainable in the eye of law.

9. On the other hand, learned counsel for the respondents vehemently contested that there are concurrent findings of facts recorded against the appellant in respect of the subletting of the premises. He admitted that the respondent No.1 produced legal notice as Exh.P.W.1/2 and in the said notice it is stated that the premises which is subject-matter of proceeding is in possession of one Muhammad Shafee son of Haji Gul to whom premises has been sub-let. He further stated that as far as notice is concerned this was issued in respect of the premises which is subject-mattes of the proceeding, but at that time three cases were filed against appellant and so far as Muhammad Shafi is concerned he was one of the sub-tenants in one of the Shops i.e. No.15, therefore, notice may not be read as a part of the present proceedings.

10. We have heard the learned counsel for the parties and have gone through the pleadings, evidence particularly produced by the respondent himself. There is nothing to discuss that oral evidence could not be given preference over documentary evidence. The respondent in his own ejectment application has stated that when respondent sublet the premises he issued the notice on 20-7-2002. This notice has been produced by the respondent while recording his statement as P.W. which we would like to reproduce herein below:-- "(1) That my client is a sole and lawful owner of the Akbar Market, New Rampura gate, Peshawar city where you are a tenant. (2) That according to the agreement you were to pay the monthly rent to my client for the Shops Nos.14, 15, 16. (3) That you have further unlawfully sublet the said property/shop in question to Muhammad Shafee son of Haji Gul. (4) That my client time and again keeping the past relationship of tenant/landlord verbally requested you to vacate the property/shop from the illegal possession of Muhammad Shafee but to no avail. (5) That now my client has no other option but to serve upon the legal notice to vacate the property/shop in question from the illegal possession of Muhammad Shafee and handover the vacant possession to my client."

11. From the perusal of the above notice leave no room to doubt that this was issued in respect of the subletting of the premises to one Muhammad Shafee whereas in the ejectment application it has been alleged that premises has been sub-let to Khial Wali by the appellant. The appellant along with the witnesses entered into witness box and stated that he has not sub-let the premises to respondent Khial Wali or to any one and that it is a fake name otherwise no person of such name exists. However, it is unfortunately aspect of the case that the learned High Court as well as trial Court has not attended this aspect of the case as which has been noted hereinabove, that oral evidence could be given preference over the documentary evidence. We may note here that probably there were three ejectment proceedings initiated by the respondent against the tenants occupying the shops' Nos.14, 15, 16 and perhaps at the time of the drafting it has been mentioned in the notice that Muhammad Shafee is the sub tenant who occupy the shop which has come on record. The respondent himself issued the notice in respect of the premises which is in dispute i.e. shop No.14, therefore, he is bound by the pleadings as well as documentary evidence which has been produced by him. Thus on the basis of the documentary evidence which has been referred hereinabove, we are of the opinion that there is a contradiction in the ejectment application itself as well as in the oral evidence when the respondent had entered into witness box orally stating that premises has not been sub-let to Khial Wali. On the other hand he produced the evidence by him negate the appellant had sublet the premises. Thus no other conclusion can be drawn except that the respondent has failed to establish issues of subletting against the appellant.

12. As a consequence of the above discussion and reasoning, the judgment of the High Court dated 19-6-2009 passed in Writ Petition No.1953 of 2006 and judgment of the Additional District Judge, dated 2-11-2004 and order of the Rent Controller dated 13-10-2004, are not sustainable in the law, as a result whereof, this appeal is allowed with costs. M.H./S-63/SC Appeal dismissed.