' MUHAMMAD QAIM JAN KHAN, J.--- The Constitutional petition in hand is filed against the partial order of District Judge, Charasadda dated 17-11-2003 vide which though the relationship of landlord and tenant was upheld but the respondent was not upheld a wilful defaulter.
2. It is to be noted that there are other eight writ petitions flied against the same order of respondent No,2. The facts and points of law are the same although the names of the tenants are different, therefore, our this single judgment shall dispose of the instant writ petition as well as the connected writ petitions details of which is as under:--
(i) Shah Zeb (Minor) through Gul Shahzada Salim v. Ayaz and 2 others Writ Petition No,156 of 2004;
(ii) Shah Zeb (Minor) through Gul Shahzada Salim v. Saddiqullah and others Writ Petition No,157 of 2004;
(iii) Shah Zeb (Minor) through Gul Shahzada Salim v. Bakhtiar and others Writ Petition No,158 of 2004;
(iv) Shah Zeb (Minor) through Gul Shahzada Salim v. Shafaat and others Writ Petition No,159 of 2004;
(v) Shah Zeb (Minor) through Gul Shahzada Salim v. Faqir Muhammad and others Writ Petition No,160 of 2004;
(vi) Shah Zeb (Minor) through Gul Shahzada Salim v. Ghaffar Ali and others Writ Petition No,161 of 2004;
(vii) Shah Zeb (Minor) through Gul Shahzada Salim v. Munasib Khan and others Writ Petition No,162 of 2004 and
(viii) Shah Zeb (Minor) through Gul Shahzada Salim v. Shafaat and others Writ Petition No,163 of 2004.
3. Short facts of the case are that Shah Zeb (minor) through his legal guardian Gul Shahzada Saleem (father) instituted an eviction petition against the respondent in the Court of Rent Controller, Charsadda under section 13 of the Rent Restriction Ordinance for the eviction of the respondent from Shop No,2 situated in Ghafoor Market, Tangi Road, Charsadda. It is further alleged in the petition that the suit property was formerly in the ownership of Mst. Hanania Jan and Gul Shahzada Saleem was her attorney. The landlady gifted the property to the present petitioner vide Gift Deed dated 4-8-1998. The respondent is a tenant under the petitioner at monthly rent of Rs.1,000. Respondent has been served with notice under section 13-A of Rent Restriction Ordinance.
That respondent has not paid the rent from August, 1999 till date without any rhyme or reason and has become defaulter. Moreover, the respondent has damaged the suit property, so he was asked several times to vacate the suit property but as he refused, so the present petition.
4. Respondent contested the petition by filing his replication denying the title of the petitioner, therefore, the trial Court framed the following preliminary issues:--
(i) Whether the relationship of landlord and tenant exists in between the parties?
(ii) Relief.
5. Evidence pro and contra was produced by the respective parties. The trial Court after hearing the respective counsel for the parties and going through the record upheld that relationship of landlord and tenant does exist between the contesting parties and that the respondent/tenant has committed the default, so the trial Court accepted the ejectment petition and ordered the eviction of respondent/tenant from the suit premises within two months of his order, dated 28-2-2003.
However, the parties were left to bear their own costs.
6. Dissatisfied with the said order, the respondent/tenant preferred an appeal in the Court of District Judge, Charsadda and the said Court after hearing the learned counsel for the parties and going through the record partially upheld the order of the trial Court vide its order, dated 17-11-2003 upholding that the relationship of landlord and tenant exists between the parties. However, the Court further upheld that the appellant/respondent is not a wilful defaulter. The case was remanded back to the trial Court with the direction to frame remaining issues and dispose of the application in the light of the evidence and parties were left to bear their own costs.
7. Aggrieved from this order, the petitioner has preferred the instant Constitutional petition on the ground that when once the Court arrived at the conclusion with regard to an issue of existence of relationship as a landlord and tenant, then his ejectment order ought to have been passed.
7-A. We have heard the learned counsel for the petitioner at length. The respondent did not appear in Court despite proper service. So the writ petition was admitted to full hearing. The learned counsel for the petitioner referred to the latest authority of the Honourable Supreme Court of Pakistan reflected in 2003 SCM R 1476(a) and argued that when the relationship is upheld between the contesting parties as that of landlord and tenant, and the tenant has admitted default, therefore, the order of the appellate forum is not based on sound reasons.
8. We have thoroughly considered the arguments of the learned counsel for the petitioner and have gone through the record. The cake of the petitioner is supported by strong documentary evidence and the respondent/tenant has got no case at all and in his cross-examination, he has admitted the petitioner io be his landlord and also admitted his default. The lower Appellate Court has not applied its mind to 'the overwhelming documentary evidence and the admission of the respondent/tenant and based his judgment on an erroneous admission of the petitioner's guardian which has been rectified by the respondent/ tenant in his cross-examination and he has admitted the petitioner to be his landlord and also that he has not paid any rent to him. As far as the admission of one Shah Iran is concerned, admittedly he is not the owner nor the landlord, so no question of payment of rent can arise to him. The story of selling the motor car advanced by the said Shah Iran has got no legal proof. In this behalf, reference can be had to the judgment of the apex Court cited by the learned counsel for the petitioner in 2003 SCM R 1476 in which the apex Court has upheld that once the Court comes to the conclusion that relationship of landlord and tenant does exist between the contesting parties and when the application for eviction by the petitioner is based on default, the tenant is liable to be ejected straightaway when the required relationship was proved in affirmative. In this background of the case, the petition in hand is accepted and the order of the District Judge, Charsadda, dated 17-11-2003 is set aside and the order of the trial Court is upheld. No order as to costs.