2018 PLP 1354 (CLC)

MUHAMMAD NASIR MAHFOOZ, J.

This is second appeal under section 15(6) of Khyber Pakhtunkhwa Urban Rent Restriction Ordinance, 1959, against the judgments/orders dated 06.03.2012 whereby the learned appellate court accepted appeal of respondent/landlord and allowed his ejectment petition by setting aside order dated 20.06.2011 passed by learned Rent Controller.

2. Respondent/landlord filed ejectment petition against the present appellants on the ground of default of rent, personal use and subletting. It is alleged that appellant No.1 has sublet the property to appellant No.2. Respondent/landlord produced evidence in support of his petition that he has become owner of the suit-premises through an exchange deed dated 10.02.2009 and respondent is bound to pay Rs.3000/- per month as rent.

3. On the other hand, respondent denied the contention raised in the petition and submitted in para No.5 of his reply that neither the petitioner is owner/landlord of the suit premises nor they are his tenants. His contention is that previous owner Dr. Shuja Uddin is owner of the premises and if respondent has become owner no notice has been served upon them before filing this petition. He claims to be in possession of the suit shop since 1949 at the rate of Rs.4/- rent per month which has now reached up to Rs.100/- and he has made considerable improvements in the suit property.

4. On behalf of respondents/appellants Zafer Hisam, Mir Shuja Uddin (previous owner) and one Syed Jalal advocate have appeared as P.W.1, P.W.2 and P.W.3, respectively while appellant No.1 appeared as D.W.1 and produced copies of certain proceedings. He also produced one Ghulam Muhammad as P.W. and one Al-Haaj Muhammad Qayyum as P.W.3 and closed his evidence.

5. I have heard learned counsel for the parties and perused the available record.

6. Learned counsel for the appellant submitted that learned appellate court had rightly dismissed the ejectment petition of respondent through well reasoned judgment but the learned appellate court has acceded his jurisdiction by setting aside the said order and allowed the ejectment petition without properly appreciating the evidence on record.

7. It may be mentioned that in Provincially/Administrated Tribal Areas provision of second appeal is still in field as amendment through which the right of second appeal has been omitted has not been extended to it. It was pointed out that a Division Bench of this court has already ruled over this issue, so could not be reopened.

8. Perusal of record reveal that since the date of institution of this ejectment petition appellants have not deposited a single penny towards monthly rent in court, which nevertheless is essential pre-requisite before proceedings with trial of a ejectment petition under the, ibid, Ordinance. Even if he was not accepting the respondent as his landlord still he was not claiming the suit property as his ownership so he was legally bound to deposit rent in the court which he has not paid deliberately and his conduct is contumacious in this respect. This. sole ground is sufficient for acceptance of the ejectment petition even if respondent has not proved the ground of subletting and personal use but still because superior courts have held that the tenant is estopped from questioning the bona fide claim of landlord of personal use of any premises. In this case respondent/landlord has produced evidence who has in a very satisfactory manner established the grounds of subletting, as raised in the ejectment petition as appellant No.2 is arrayed in the appeal as well who is sublettee of appellant No.1 because there is no evidence to prove that appellant No.2 is either his servant or his partner in any manner whatsoever. Despite the fact that appellants claim the monthly rent of Rs.100/- per month in this high rise period of inflation but even the same has not been deposited in the court. They have simply relied on a receipt of money order sent to previous owner Shuja Uddin P.W.2 but it does not absolve the appellants from their liability to pay the rent in court after institution of this ejectment petition. The non-issuance of notice prior to filing of the ejectment petition as raised by the appellants also does not held any ground because Ex. P.W.1/3 dated 21.12.2010 is a notice by counsel to appellant placed on record, which is duly exhibited in evidence, thus, there is no occasion to deny its receipt and validity.

9. Respondent/landlord has sufficiently proved his case on all valid and legal grounds to justify ejectment of the appellants from the suit premises as well as to uphold the judgment of learned appellate court. As a sequel to above findings, this SAO stand dismissed. No order as to costs. MQ/370/P Second appeal dismissed.