2018 PLP 96 (CLCN)

QAISER RASHID KHAN, J.

Through this single judgment recorded in W.P.No.2664-P/2017 titled Ali Hassan v. Aminullah and others, I also intend to dispose of four connected writ petitions, bearing No.2665-P/2017 titled Esa Khan v. Aminullah and others, No.2666-P/2017 titled Raza Khan v. Aminullah and others, No.2667-P/2017 titled Malik Muhammad Bakhsh v. Aminullah and others and No.2691-P/2017 title Ali Hassan v. Aminullah and others, as not only the parties are almost the same but also the facts and law points involved therein are common.

2. In all the petitions, the petitioners have challenged the judgments and decrees of the learned Rent Controller, Peshawar dated 14.7.2016 and that of the learned Appellate Court/Additional District Judge-VIII, Peshawar, dated 29.5.2017 whereby eviction petitions of the respondents Nos.1 to 3 were accepted and the appeals filed by the petitioners against the said judgments were dismissed respectively.

3. The learned counsel for the petitioners contends that both the courts below have seriously erred under the law while allowing the eviction petitions against the petitioners as they had purchased the demised premises from the respondents/landlords on payment of substantial amount but then the respondents backed out from their commitment and resultantly the petitioners were constrained to file a suit for specific performance against them before the learned civil court which is pending but such aspect did not prevail with the learned courts below. He further contends that since no relationship of landlord and tenant existed between the parties, therefore, there was certainly no question of default but through the impugned findings, the petitioners have been held defaulters in the payment of monthly rents. The learned counsel for the petitioners further contends that the eviction petitions were decided on the basis of hypotheses and in disregard to the evidence so brought on record and thus both the learned Rent Controller and the learned Appellate Court seriously erred under the law by allowing the eviction petitions of the respondents/landlords.

4. The learned counsel for the respondents, on his turn, supported the impugned findings of both the learned courts below on almost the same grounds detailed therein.

5. Arguments heard and the available record perused.

6. As the record unfolds, it was the respondents/landlords who filed eviction petitions against the petitioners in respect of different shops rented out to them at the ground floor of National Hotel, Mohallah Jhangi, Peshawar, with the averments in the eviction petitions that the shops were rented out to the petitioners but they further sublet the same without the consent and permission of the landlords and moreso that not only the tenancy period had expired on 31.12.2011 but the petitioners/tenants had also defaulted in the payment of rents and further that the suit shops were required by the respondents/landlords bonafidely for the expansion of their hotel business situated at the upper floor of the premises. On being served, the petitioners/tenants filed their replications and took the plea that the demised premises in all the cases had been sold by the respondents/landlords in favour of the petitioners through an agreement to sell dated 19.1.2012 and, therefore, there existed no relationship of landlord and tenant between the respondents and the petitioners and that the eviction petitions could not proceed under the law. Accordingly, the learned Rent Controller framed the following issues:- i) Whether the petitioner has got cause of action? ii) Whether relationship of landlord and tenant exists between the parties? iii) Whether the petitioner is entitled to the relief as prayed for? iv) Relief. Thereafter, the parties proceeded with recording their respective evidence.

7. Since the pith and substance of the evidence in all the cases is almost the same, therefore, discussion on the evidence in one case is sufficient for the just decision of all the petitions.

8. In the case of respondents/landlords, their munshi, Jalal Shah appeared as PW.1 and exhibited his Affidavit as PW.1/1 and also power of attorney of respondents as Ex./PW.1/2, ownership sale deed of petitioners as Ex.PW.1/3 and rent receipt as Ex.PW.1/4. During cross-examination, he stated to have been working with the respondents as a Munshi since 1980 and owned his signature on Ex.PW.1/1. He was subjected to an indeed a very lengthy and taxing cross-examination and in this respect doubts were cast on the veracity of the power of attorney and every effort was made to shatter his testimony but he stuck to his stance and in the process further fortified the case of the landlords. He made the following replies to certain questions:- "it is also correct that the petitioners used to get rents from their tenants from different properties. The respondents have paid the rents till February, 2012 and I used to recover the rent from all the tenants of entire building and I used to issue rent receipts to various tenants". .. ."It is correct that owners of the property have sold out some of the portion of the Hotel and the remaining portion in the possession of the respondent has not been sold yet. I know Mr. Amjad Nizam, he was also a tenant in this Hotel. He was holding a shop under the hotel. We have not filed ejectment petition against that Amjad Nizam. It is correct that approximately, 24 marlas of the property out of 29 Marlas has been sold out to said Amjad Nizam through registered sale deeds. The registered sale deeds according to my memory has been executed before the institution of present petition. The out of 11 ejectment petitions pending before this Hon'ble Court, we have withdrawn seven cases against the tenants. The said petitions were withdrawn against those tenants who have purchased the property and become owners of the same. It is incorrect that the present respondents through above said Amjad Nizam have also approached for the purchase of property which is in their possession. ..."that the suit for specific performance had not only been filed by the petitioners before the learned Civil Judge Peshawar but also by six others, namely Irfan Saleem, Abdul Raziq, Shaikh Muhammad Zeeshan, Amjad Nizam, Waqar Anjam and Gul Zameen against the landlords and simultaneously the eviction petitions were also filed but the same were withdrawn after sale in favour of the above six persons and that they too withdrew their suits for specific performance of contract." He also stated that he used to issue rent receipts till February, 2012 and thereafter the petitioners/tenants stopped payment of monthly rents and more so that no rent deed had been executed between the landlords and tenants as they were their old tenants. In reply to another question, he stated that he came in the service of the landlords in the year 1980 and even at that time the petitioners were tenants under the landlords. Najm-ul-Hassan son of respondent namely Amin Ullah Khan appeared as PW-2 in support of his affidavit Ex:PW-2/1 and that his father is the landlord of the tenanted premises and that the matters relating to the rent agreements with the tenants are dealt with by their munshi who has been in their service since 1980. He was also subjected to lengthy cross-examination but nothing fruitful to the interest of the petitioners/tenants could be extracted from his mouth. From the entire cross-examination, it is abundantly manifest that the petitioners did not deny their status as tenants under the respondents/landlord and that they had been paying the rents till February, 2012 and more so that they defaulted, according to them, after the execution of the alleged agreement to sell between the parties.

9. The petitioners in all the cases, on their turn, while submitting their Affidavits as Ex.RW.1/1, stated to have remained tenants under the landlords for a long time and also that they were regularly paying rent till February, 2012 and that after the sale of the suit shops, they had become owners of the same and thus no more tenants under the respondents/landlords and further that for the enforcement of the agreement to sell, a suit for specific performance has been filed before the learned Civil Judge, Peshawar. The petitioner, like other tenants/petitioners in other petitions, has recorded his statement as R.W.1 in support of his affidavit RW.1/1 and also produced an agreement to sell Annexure-A, a copy of a cheque of Rs.50 lac in favour of Amjad Nizam as Annexure-B and also another cheque of Rs.5 lac in favour of said Amjad Nizam as Annexure-C, a copy of FIR No. 915, dated 11.9.2014 at Police Station Khan Raziq Shaheed against Amjad Nizam and others as Annexure-E. Similarly, their other witnesses, i.e. RW.2 and RW.3 submitted their sworn affidavits in support of claim of the RW.1.

10. It goes without saying that the petitioners/tenants on their turn, had not submitted the documents Annexure-A to Annexure-D with their replications and only the agreement to sell with their affidavit. During cross-examination, they admitted as correct that the payments to Amjad Nizam were neither mentioned in their reply nor in their affidavit nor for that matter the transaction of the suit property through Amjad Nizam. Ali Hassan, appearing as RW.1 admitted as correct that the ownership of the disputed property was not transferred in his name and that the original of Annexure-A i.e. agreement to sell is not with him and self stated that it might be in possession of Amjad Nizam. He also made the following replies to certain questions:- "It is correct that the fact regarding the payment to Mr. Amjad Nizam is not mentioned through cheque in my affidavit as well as in my reply. It is also correct that in my affidavit as well as in my reply the fact regarding the payment to Mr. Amjad Nizam in cash as well not mentioned. It is also correct that in my affidavit as well as in my reply the fact regarding the transaction of the disputed property with the owner of the property was made through Mr. Amjad Nizam is not mentioned". .."It is correct that in Annex-B, it is nowhere mentioned that for what purpose we have given the cheques to Amjad Nizam. Self stated that the cheques were given in connection with the sale of disputed property. Again stated that we have trusted Amjad Nizam who betrayed us". ..."It is correct that an FIR Annex-E was lodged by third party against Amjad Nizam. Self stated that the property was same and the FIR was lodged in connection with the disputed property. It is correct that the receipt Ex.RW.1/2 is in my possession since 2012 and I produced it today for the first time in the court". "It is correct that till now I have not filed any suit or complaint against said Amjad Nizam for the recovery of amount or regarding the alleged fraud committed by Amjad Nizam. It is correct that I am not paying any rent to the petitioners since February, 2012. Self stated that after agreement to sell, I have not paid any rent to the petitioners. It is correct that on the basis of alleged Annex-A, I am not the owner of the property and the said alleged document is not ownership deed. It is correct that the petitioners are the owners of the property till now."

11. In the same manner, the other petitioners/tenants have also made similar statements regarding the sale payments made by them to Amjad Nizam who was allegedly instrumental in the execution of the alleged sale transaction between them and the landlords and also that they were cheated by Amjad Nizam. However, not an oblique reference was made towards Amjad Nizam in the replication as well in the affidavits so submitted before the learned Rent Controller. Thus from the cross-examination, not only the petitioners have admitted their tenancy under the respondents/landlords but also that they defaulted in the payment of rents w.e.f. February, 2012 on the basis of some agreement to sell whose validity and veracity is yet to be adjudged by the learned Civil Judge where the suit for specific performance of the petitioners/tenants is pending.

12. The brief discussion on the evidence clearly reveals that the petitioners/tenants have failed to rebut the facts asserted by the land owners/respondents herein in their pleadings. They have admitted the default in payment of rent since February/March, 2012, sale deed produced by the respondents/owners in their favour and the rent receipts. Undoubtedly, non-payment of the rent of the shops in dispute by the tenants/petitioners is admitted by them in their evidence, as such, they would be inferred as wilful defaulters, so liable to be evicted from the demised premises. As regards the question of ownership of the petitioners, they have based their claim on the basis of alleged sale agreement dated 19.1.2012 which is the subject matter of the suit for a specific performance filed by them, the authenticity of that document is yet to be proved at the trial before the competent court of law and till then their tenancy under the respondents cannot be denied. The honourable Supreme Court in a case reported as PLD 1984 Supreme Court 17 (Makhan Bano v. Haji Abdul Ghani) held as under:- "The default of the respondent in paying or tendering the monthly rent was upheld by all the three authorities including the High Court and no mitigating circumstance was found which may invite the exercise of discretion in his favour. On the contrary, the futility of his efforts to take up a dispute over title of the property, abandoning it at a crucial stage and withholding rent on that account for over 10 months showed an element of contumacy and persistency in the misconduct." Similarly, in another case reported as Ghulam Samdani v. Abdul Hameed (1992 SCMR 1170), the august Apex held that: "It is by now well settled that if a tenant denies the relationship of landlord and tenant, he is liable to eviction straightaway without recording of evidence on the other allegations of default, damage to property and personal need because default in payment of rent is conceded by the tenant himself" A similar view was taken in the case of Ahmad Ali alias Ali Ahmad v. Nasar ud Din and another (PLD 2009 Supreme Court 453), by holding that:- "Application of landlord for ejectment of tenant having been based on default, and the required relationship of landlord and tenant having been denied by the tenant, he was liable to be ejected straightaway when the required relationship has been proved in affirmative." The honourable Supreme Court in yet another case titled Rabnawaz v. Haji Muhammad Iqbal and 2 others (2003 SCMR 1476) held as under:- "The petition having been based on default, the required relationship having been denied, the tenant was liable to be ejected straightaway when the required relationship was proved in affirmative ultimately."

13. The august Supreme Court, in an identical case titled PLD 1991 SC 242 (Iqbal and 6 others v. Mst. Rabia Bibi and another), held as under:- "Be that as it may, in some recent judgments this court has taken the view that in cases like the present one, where the sale agreement or any other transaction relied upon by a tenant is seriously and bona fide disputed by the landlord, the appellant/tenant cannot be allowed to retain the possession during the litigation where he continues to deny the ownership of the landlord who had inducted him as a tenant, without any condition and/or reservation. It has been ruled that in such cases although the tenant has a right to adduce evidence and take a short time for that purpose to remain in occupation despite having set up a, hostile title which is denied by the landlord, but on the well-known bar of estoppel in this behalf, he (the tenant) cannot be permitted to remain in occupation and fight the litigation for long time-even for decades. In this case it is more than a decade that the appellants have been able to keep the possession on a claim which the landlord asserts is false. Accordingly, as held in those cases in fairness to both sides, while the tenant is at liberty to prosecute the litigation, wherein he should try to establish his claim but it should not be at the cost of landlord/owner. It should be at the cost of himself and he must vacate-though of course he would be entitled to an easy and free entry as soon as he finally succeeds in establishing his title against his own landlord." In another case titled Madrissa Darul Uloom Albaqiat Ul-Salehat Registered v. The Additional District Judge (Appellate Court) and another (PLD 1992 Supreme Court 401), the honourable Supreme Court held as under:- "Respondent having admitted that he was inducted as a tenant under a written agreement, could not challenge the title of the appellant without first surrendering the possession to him

Respondent, however, could seek his remedy from the Civil Court of competent jurisdiction". Reliance is placed on case titled M/s. Home Comforts v. Mirza Rashid Baig and others (1992 SCMR 1290) wherein it has been held that: "No person can be allowed to approbate and reprobate in the same breath by admitting tenancy on one hand and setting up plea of non-maintainability of application for ejectment on the other hand." In the instant case there are concurrent findings of the learned Rent Controller as well as the Appellate Court. Needless to emphasize that constitutional jurisdiction of this Court in rent matters is very much limited and confined only to ascertain whether the appellate court has flouted provisions relating to the statute or failed to follow the law relating thereto.

14. Besides a jurisdiction under Article 199 of the Constitution cannot be invoked as a substitute of another appeal against the order of the appellate Court. Therefore, mere fact that upon perusal of evidence, High Court comes to another conclusion would not furnish a valid ground for interference in the order of the appellate Court, which is final authority in the hierarchy of rent laws.

15. Moreover, the pleadings of the tenants/petitioners are short of any allegation qua payment of certain amount to Amjid Nizam towards implementation of the sale agreement dated 19.1.2012. Furthermore, the evidence of the petitioners in the form of exhibited documents of cheques, receipts and annexures having not been proved cannot be relied upon and rightly rejected by the trial court as title of the property in dispute is sub judice before the learned civil court and the determination of the same is not the domain of the learned Rent Controller. On the other hand, the respondents/landlords through their evidence have proved their stance qua default in payment of monthly rent since February/March, 2012 which has duly been admitted by the petitioners in their cross-examination, bona fide personal need and subletting by the tenants which are sufficient grounds for their eviction from the suit shops. Similarly, possession of the petitioners over the suit property as tenants is proved beyond any shadow of doubt. Their default in payment of rent is also established, having been admitted by them in their court statements. The plea of personal need could not be rebutted through cogent and trustworthy evidence. The impugned findings of the two forums below do not suffer from any illegality or material irregularity, misreading or non-reading of evidence or for that matter any jurisdictional error warranting interference of this court through the present Constitutional petitions.

16. Accordingly, this and the connected petitions being meritless stand dismissed, with no order as to costs. MQ/176/P Petition dismissed.