2015 PLP 2570 (YLR)

SYED AFSAR SHAH, J.

Through the instant writ petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, Rifat Ullah Jan, the petitioner has made a prayer that:-- "On acceptance of instant petition impugned orders dated 7-7-2008, 20-3-2010 and 4-5-2011 be declared illegal, void ab-initio, against law and natural justice and subsequently case be remanded back with directions to respondent No.2 to proceed with the case and decide the same on merits after giving both parties opportunity to adduce pro and contra evidence".

2. The facts leading to the filing of the instant petition are that on 19-5-2007, Rifat Ullah Jan, the petitioner filed a petition for ejectment of the respondent Bashir Zada from a shop bearing No.2 situated in Sarwar Plaza Khyber Bazar, Peshawar under section 17 of the Cantonments Rent Restriction Act, 1963 mainly on the ground of default in payment of rent. When put on notice by the learned Rent Controller, it was on 6-11-2007 when the respondent put his appearance and accordingly the case was fixed for submission of written reply/replication on his behalf. The case was in the process of submission of written reply till 28-6-2008 but on 7-7-2008 it was adjourned sine die for the reason that there is civil litigation in respect of the suit premises.

3. On 22-2-2009, the petitioner moved an application for restoration of the petition which was disallowed on 20-3-2010. Later on, the petitioner/landlord filed another application for restoration of the rent petition but with no premium to him as his application was once again dismissed by the learned Rent Controller vide his order dated 27-4-2011. Through the instant writ petition, the petitioner has impugned all three orders rendered by learned Rent Controller.

4. We have heard arguments of the learned counsel for the parties, gone through the record appended with the petition and perused the relevant law on the subject as well.

5. It appears from the record available on file that in May, 2007, Rifat Ullah Jan, the petitioner/landlord filed an ejectment petition against the respondent/tenant, Bashir Zada in respect of a shop No.2 situated in Sarwar Plaza Khyber Bazar, Peshawar mainly on the ground that he had made default in the payment of rent. In support of his version, the petitioner/landlord had also placed on record copy of a rent deed allegedly executed between him and the respondent. During the proceedings conducted in the court of Rent Controller, initially the respondent/tenant was avoiding his appearance in the court, however, when he attended the court, it is with dismay that he did not file replication to the ejectment petition and on 7-7-2008, the learned Rent Controller was constrained to adjourn the petition sine die. Here it is pertinent to note that on the said date, neither the parties nor their counsel were present in the court but even then, the Rent Controller rendered the impugned order which is beyond our comprehension. Subsequently, the petitioner/ landlord filed two consecutive applications for restoration of the ejectment petition but with no premium to him as his request was disallowed by the learned Rent Controller. In the given circumstances of the case, the moot question which falls for determination before this court is as to whether in view of the civil litigation in respect of the premises in dispute; the learned Rent Controller had rightly adjourned the ejectment petition sine die. So far as the civil litigation in respect of the suit premises is concerned, copy of the plaint is available on record and perusal of the same would show that the civil suit is between one Mst. Najab Sultan (since dead and now represented by her legal heirs) and Rifat Ullah Jan, etc. The above dispute is not between the tenant and landlord. Again in the matters of ejectment, question of title is absolutely irrelevant. In the case of "Anwar Khan v. Abdul Munaf" (2004 SCMR 126), it was observed by their Lordships that question of title has no relevancy in proceedings in rent cases as the pivotal point needs determination would be the relationship of landlord and tenant and that tenant has got no right to raise any such objections as the same would have no substantial affect on the factum of his tenancy and that his status shall remain as tenant. The above view was reiterated by the august Supreme Court in the case of "Amin and others v. Hafiz Ghulam Muhammad and others" (PLD 2006 SC 549), where it was ruled by the apex Court that in ejectment matter; the question of title is not relevant. A similar question was attended by this Court in the case of "Muhammad Daud v. Mst. Surriya Iabal and another" (PLD 2000 Peshawar 54), where the views of the apex Court were followed by observing that:-- "the question of title would have no relevance in the proceedings in rent case before the Rent Controller as there the point of existence of relationship of landlord and tenant would be the determining factor and the Rent Controller can hold whether the relationship of landlord and tenant exists between the parties after recording pro and contra evidence". In the present case, the learned Rent Controller by adjourning the case sine die on the ground that there is civil litigation in respect of the suit premises has landed into the fields of error.

6. In view of the above, the petition is allowed resultantly, the impugned orders stand set aside and as a consequence thereof the eviction petition is restored with the direction to the learned court to proceed with the same from the stage it has committed error. ZC/501/P Case remanded.