2016 PLP 248 (YLR)

ABDUL LATIF KHAN, J.

The appellant has filed the instant regular second appeal against the judgment and decree dated 25-4-2014 passed by learned District Judge/ Zila Qazi, Dir (Lower) at Timergara, whereby judgment and decree dated 14-3-2014 passed by the learned trial Court was maintained.

2. Arguments heard and record perused.

3. A perusal of record reveals that Arjumand Khan filed an ejection petition Under Section 13 of the West Pakistan Urban Rent Restriction Ordinance 1959 for ejectment of tenant Muhib Ullah and two (2) others from the suit shop mainly on two grounds of bona fide personal need and that the tenant/respondent Muhib Ullah has sub-let the suit shop in favour of respondent No. 2, Wazir Zada, who in turn further sub-let the same in favour of respondent No. 3 Faman Ullah. The petitioner Muhib Ullah filed written reply and denied the allegation of sub-letting, however taken the stance that a sum of Rs. 30,000/- was received by the landlord/respondent as "Pagrai" in the year 1978 and later on a sum of Rs. 2, 50,000/- was also received as "Pagrai" and a deed to this effect was scribed on 24-5-2000. The plea of sub-letting was hotly refuted by the petitioner. So far as respondents Nos. 2 and 3 in the rent petition are concerned they have not contested the suit and were placed ex-parte. From divergent pleadings of the petitioner and respondent No. 1 issues were framed and after recording of evidence of the parties the learned trial Court/Rent Controller accepted the petition and directed the respondent No. 1/present petitioner to handover vacant possession of the shop within one month to the respondent/landlord. Being aggrieved, the petitioner filed an appeal before the learned District Judge, who dismissed the same with direction to the petitioner to handover the possession of the rented shop to the landlord within 30 days, who in turn was directed to pay Rs. 2, 50,000/- to the petitioner on the ground of sub-letting, however, plea of the landlord for personal bona fide need was not accepted by the Court of appeal.

4. It is pertinent to mention that the learned counsel appearing on behalf of respondent conceded that personal bona fide need has not been proved and has been decided against the respondent by the learned appellate Court, which has not been questioned by them. The only ground of sub-letting on the basis of eviction of the tenant has been ordered, which has to be seen in the light of pleadings and evidence of the parties. The applicant/landlord in Para 2 (a) of the application for ejectment averred that petitioner/tenant has constructed shops for himself in Zeb City Market, Taimergara and has shifted there and suit shop has been sub-let to respondent No. 2 who in turn further sub-let it in favour of respondent No.

3. This version has not been proved with the aid of confidence inspiring evidence. PW-1, Mumkin Khan posted his affidavit as Ex-PW-1/1, however subject to objection by the tenant/petitioner. He was also subjected to cross-examination on the point of scribing and authenticity of affidavit. He deposed nothing about the stance of landlord with regard to start of business by the tenant at Zeb City Market or to have sub-let the suit shop. His affidavit seems counter to the stance of landlord as it reveals that though for some time suit shop was rented out to Farman Ullah, fruit seller, however a few months back, he has been evicted and tenant, Muhib Ullah has re-started his paint business in the suit shop and running business in it himself. This is clear cut negation of averments made in Para 2(a) of the application/ plaint. The landlord appeared as PW-2, who has reiterated his stance taken in the pleadings, which shows that even today sub-tenant Farman Ullah is in possession of suit shop and, as such, he is at variance to PW-1. In cross-examination he admitted that tenant Muhib Ullah has been inducted by him into the possession of suit shop as tenant on payment of "pagrai" amount of Rs.2,50,000/-. He deposed that PW-1 works as labour/servant with one of his tenant in a shop owned by him. He has not produced any evidence to the effect that suit shop has been sub-let. He produced rent deed, EX-PW-2/1, by dint of which he received additional amount of premium and inducted the tenant/petitioner into possession of suit shop after reconstruction. One Wahid Ullah was examined as PW-3, who has narrated a different story quite in departure to the pleadings of landlord and contrary to his deposition as PW-2 and also at variance with PW-1. He is running his business as tenant of landlord in one of the shop in Market owned by the landlord. He deposed that shop situated between the shop of petitioner/tenant, Muhib Ullah was rented out to him by Muhib Ullah in lieu of Rs. 3000/- monthly rent, 2/3 years back. He added that entire market is the ownership of landlord, Arjumand Khan and Muhib Ullah has sub-let the shop in question in favour of Wazir Zada and Farman Ullah. In cross-examination, he stated that he used to pay rent to one Master Aziz-ul Haq. He admitted that as he has taken oath on Holy Quran and would depose truth and stated that Muhib Ullah, tenant/petitioner used to come to shop in dispute and runs paint business in it. His son also used to help him in business. This part of the statement leads one to conclusion that tenant himself with the help of his son runs the business in disputed shop himself and has not sub-let the same. PW-4 deposed in favour of landlord in his statement, however taken u-turn in cross- exemption by deposing that Farman Ullah and Wazir Zada respondents Nos. 2 and 3 sub-lettees are unknown to him and Farman Ullah used to sell fruit in front of suit shop on a hand driven cart rather it is exactly in front of shop of one Mashooq shopkeeper. PW-5 & PW-6 are witnesses in respect of scribing of EX-PW-2/1, not need to be discussed. No proof of receipt of rent by tenant from sub-lettee has been brought on file. Similarly, evidence is silent rather contrary to the fact that sub-lettee enjoys exclusive possession of the shop. Simple permission to use the shop to any person for parking his hand driven cart in front of shop or any purpose temporarily would not amount to sub-let the same.

5. Quite apart from this the landlord has received pagri/premium as evident from EX PW-2/1 and evidence produced in this regard, which is hit under the prohibition of Section 7 of West Pakistan Rent Restriction Ordinance (VI of 1959). The ejectment of tenant could not be claimed merely on whim of the landlord, especially when he received premium, which is something larger and more than the rent amount, which runs counter to the preamble of Ordinance ibid, willfully abandoned and relinquished most his right to eject the tenant and could hardly take shelter for the purpose, under the provisions of Ordinance ibid, disregarded.

6. The scanning of the evidence makes it crystal clear that the landlord failed to prove the stance taken in his pleading to the effect that tenant/petitioner has sub-let the suit shop. The tenant/petitioner has also produced in rebuttal; however the burden squarely lies upon the landlord to prove the assertion made by him, who was unable to discharge it. Needless to mention that landlord/applicant has to prove his case and desires the Court to give judgment and his right dependent upon the existence of facts, which he asserts and if no evidence is produce, it would amounts to failure on the part of landlord and could not take benefit of the weaknesses of defence, if any, as he has to stand on his own legs. The plea of personal need has already been discarded by Court of appeal as bereft of merit and has not been assailed and plea to sub-let has not been proved as required under the law and, as such no case for ejectment of tenant/petitioner has been made out by the landlord. The Courts erred in law and facts and have not decided the "lis" pending before them in respect of plea to have sub-let the suit shop by tenant/petitioner, with conscious and application of independent mind and that is why the impugned judgments are deficient of reasons and, as such, are not sustainable. For the aforementioned reasons, I allow this appeal, set aside the impugned judgments and dismissed the application for ejectment of tenant/petitioner, filed by the landlord/ respondent No.

1. ZC/81/P Appeal allowed.