2011 PLP 413 (CLC)

ABDUL AZIZ KUNDI, J.

Inamullah Khan, predecessor-in- interest of respondents Nos. 1 to 4 sued Miran Shah, petitioner, through his Ejectment Petition dated 21-5-2005 before Rent Controller, Mardan for his eviction from property detailed with boundaries in the heading of the Ejectment Petition, situate in Afghan Market, Mardan, on the grounds of default in payment of rent for five years without specifying the rate of rent, but claiming rupees four thousand eight hundred as arrears for the said five years; installation of sui gas and electric meter in the demised premises without his permission and also being defaulter of rupees seventy thousand towards the utility of the sui gas, being a cause of nuisance for the neighbours, who had sued Inamullah Khan, petitioner, now represented by respondents in a civil court.

2. Petition was contested by petitioner, who was respondent before the trial Court through his written statement dated 27-9-2005, where he claimed to have paid a sum of rupees eighty one thousand plus sixteen thousand as security to the landlord besides spending lacs of rupees on the decoration, installation of PCO,, Sui gas and electric connection. He also claimed goodwill and his entitlement to the same. As regards installation of Sui gas and electricity, the same were claimed to have been done so with the permission of the landlord. Regarding default in payment of rent, it was averred that on refusal of the landlord to receive the same, he approached the Rent Controller through his petition No.1/RC on 21-1-2003, which was decided on 16-12-2004, whereafter pursuant to that order he has been regularly depositing the rent at the rate of rupees eighty per month since July, 2003. Pleadings of the parties were reduced into following issues:- (1) Whether the petitioner has got any cause of action? OPP (2) Whether the petitioner is estopped to sue due to his own conduct? OPR (3) Whether the respondent has made improvements over the disputed property and whether he is entitled for recovery of the same along with recovery of Rs.81,000 as security? OPR (4) Whether the respondent has made default in payment of monthly rent? OPP (5) Whether the respondent has installed a Cabin on the' disputed property without the permission of petitioner. If yes, its effect? OPP (6) Whether the respondent got Sui Gas connection and electricity supply in the Cabin without any authority or permission of the petitioner. If so, its effect? OPP (7) Relief."

3. After recording. evidence from both sides, the Rent Controller, seized of the Ejectment Petition, vide his judgment and order dated 23-12-2009, accepted the Ejectment Petition and directed the petitioner-tenant to hand over the vacant possession of the suit quarter . within two months to the landlord. Petitioner's Rent Appeal No.1/RCA of 2010, was taken up for hearing by Additional District Judge-II, Mardan; who while dismissing the same on 19-3-2010 held, "The respondent/tenant was given vacant plot, however, he has exceeded his limits illegally by constructing Cabin, hence the findings of the learned lower court on all the issues is the result of correct appreciation of law and facts and the same do not suffer from any discrepancies worth the name and there is no justification to interfere therewith in the appellate jurisdiction of the this court."

4. Still being aggrieved, Miran Shah, respondent-petitioner has questioned the concurrent judgments and orders of the two courts below through the instant writ petition, which came up for hearing in motion on 17-6-2007, when pre-admission notice was ordered to be issued to the respondent. Arguments heard. Record perused.

5. Both the courts have decided the question of default against the landlord/respondents, however, while taking issues Nos. 1, 3, 5 and 6 jointly for discussion by the trial Court, it was held that there are major contradictions, discrepancies and inconsistencies in the statement of respondent as well as his witness which makes his case a dubious one and thus the entire story narrated by him regarding obtaining permission from the landlord for construction of Cabin in the disputed premises in lieu of rupees eighty one thousand is concocted one and does not inspire confidence and cannot be relied upon.

6. These findings of the trial Court, as stated above, were also maintained by the appellate Court.

7. The perusal of the pleadings and issues framed would show that a very vital issue taken in the pleadings and duly supported by documentary evidence in the shape of a suit filed by the neighbours against the landlord regarding nuisance of the present petitioner-tenant was not framed by the trial Court, which has caused material prejudice to the case of the respondent/landlord. Similarly, the case was not tried in accordance with the directions given by the august apex Court in the case of Barkat Ali v. Muhammad Ehsan and another (2000 SCMR 556), as evidence in the shape of affidavits was not tendered and the one tendered could hardly be termed to be compliance of the said law, which are to be used as examination-in-chief. Not only this, during the course of arguments, it was pointed out that petitioner tenant has sublet the demised premises to somebody else, but because of the said plea having not been taken and the alleged sublettee also not before us, we cannot take cognizance of it. An over all view of the case file would show that it was not tried in accordance with settled principles governing the subject, for the reasons indicated above.

8. We are thus of the view that this case merits remand to the trial Court for trial afresh and accordingly while admitting this writ petition to full hearing, we allow it, set aside the impugned judgments and orders of both the courts below dated 23-12-2009 and 19-3-2010 and remand the case to trial Court for its trial afresh by framing proper issues and also directing both sides to file their comprehensive affidavits strictly in the light of directions given by the Hon'bie apex COurt in the judgment aforestated and respondents-landlords may at their option amend the Ejectment Petition by raising any other additional ground available to them, but after taking due permission in that respect from the trial Court. Since the original Ejectment Petition, which is being remanded through this judgment, had been filed in May, 2005, thus it has by now consumed almost five and a half years, therefore, we expect the Rent Controller, Mardan to dispose it of afresh as expeditiously as possible, but not later than six months from 2-11-2010, on which date parties are directed to appear before the said court. Office to send copy of this order immediately to the court concerned. A.R.K./359/P Petition accepted.