WIQAR AHMAD. J. Through this petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan 1973, petitioner Mst.Rukhsana has challenged impugned judgment and order dated 16.09.2021 rendered by learned Additional District Judge-VII, Peshawar, whereby appeal of petitioner against impugned Judgment & order dated 27.03.2019 of learned Rent Controller-II, Peshawar, was dismissed.
2. Petitioner had filed an ejectment petition under Section 13 of the West Pakistan Urban Rent Restriction Ordinance 1959, before learned Rent Controller Peshawar against respondent No.1 for his eviction from shop No.4 situated in Haji Sufaid Gul Plaza, being her legacy after death of her father Haji Sufaid Gul. Respondent No.1 contested same by filing written reply, denying petitioner to be her landlady and stated that he used to pay rents to one Ghulam Sabir. Out of divergent pleadings of the parties, the learned Tribunal framed certain issues and directed parties to produce their respective evidence. The learned Tribunal after recording pro and contra evidence and hearing learned counsel for the parties, dismissed ejectment petition of petitioner vide order dated 27.03.2019. Appeal filed against said judgment and order, was also dismissed by learned Appellate Forum vide judgment dated 16.09.2021, hence this writ petition.
3. Arguments heard and record gone through.
4. Perusal of record reveals that learned Rent Controller as well as appellate Forum has no doubt held that petitioner has failed in proving existence of relationship of landlord and tenant but while returning such findings both forums have wrongly drawn conclusions from material present before it. This Court while seized with instant constitution petition has got limited scope in respect of deciding upon factual aspects of case but even then this Court is not supposed to re-enforce the mistakes committed by both learned Courts below. Material present on record is therefore, re- assessed.
5. Admitted facts of case are that respondent Asif Ullah had been inducted in the shop as tenant by Haji Sufaid Gul, who was predecessor in interest of petitioner. Respondent Asif Ullah has not denied said fact in reply. He has also not denied the fact that petitioner has been daughter of Haji Sufaid Gul (his former landlord), he has instead given an evasive reply by stating that he had got no knowledge that petitioner had been daughter of his former landlord. Respondent No.1 has also taken a plea in his comments that husband of another daughter of Haji Sufaid Gul (late) namely Ghulam Sabir used to receive monthly rent from him initially and that later, on his refusal to receive rent, respondent No.1 had been sending rent through money order. Petitioner appeared before learned Rent Controller and recorded her statement as PW.1, where in reply to first question asked in cross examination, she had fully given details of her relationship with Haji Sufaid Gul. She has stated that she alongwith three other daughters had been survived by Haji Sufaid Gul. It also needs mention that copy of mutation No. 2726 attested on 05.09.2014 was produced by her in examination in chief, which was brought on record as "Annex-A". Through this mutation shop in dispute had been gifted in favour of petitioner by her mother namely Mst. Khatoon bint-e-Noor Muhammad wife of Sufaid Gul (late). Although this mutation has not been exhibited in evidence but instant being rent proceedings where Qanun-e-Shahadat Order 1984 was not applicable and requirement for proving documents laid therein cannot be applied in this proceeding. Same was situation with provision of Civil Procedure Code, which were also not applicable to the proceedings.
This mutation has not been challenged by any other legal heirs of Haji Sufaid Gul (late). None from them had come forward for contesting claim of petitioner either at original forum of Rent Controller or appellate forum or this Court; which shows that there is no dispute amongst legal heirs in respect of distribution and receipt of legacy of Haji Sufaid Gul or his wife i.e, Khatoon. Learned Rent Controller was not supposed to decide question of title between legal heirs of Haji Sufaid Gul (late) particularly when no person had disputed claim of petitioner before said forum. A tenant cannot be allowed to choose one of legal heir of deceased as his new landlord. Factum of refusal in respect of receipt of rent by husband of another sister of petitioner as stated in Para 2 of reply, even if taken to be correct, would mean that they had not been interested in the shop, being handed over to another legal heir of Haji Sufaid Gul, i.e, to petitioner. This inference can validly be drawn in favour of petitioner.
6. Respondent have not displayed his bonafide in the whole affair. When petition had filed his ejectment, he had been contesting claim of petitioner to be landlord of the premises. Nothing could be brought on record by him showing that other legal heirs of Haji Sufaid Gul has ever disputed claim of petitioner. Main factor that prevailed with the forum below was that petitioner had not brought any rent agreement or rent receipt on record so as to establish existence of relationship of landlord and tenant between parties. Such affirmative evidence is not always required particularly when a person claimant to have stepped into shoes of landlord by way of devolution of gift through inheritance. Hon'ble Supreme Court of Pakistan while giving its judgment in case of "Shajar Islam Vs Muhammad Siddi ue and 2 others" ported a, (2007 SCMR 45) has held that tenancy would not be necessarily created by a written instrument in express terms, rather it might also be oral and implied. In case of `Haji Abdullah Jan Vs Anwar Khan" reported as (PLD 2000 SC 787), Hon'ble Supreme Court of Pakistan has held that eviction application could be filed by a co-owner without joining other as co-owner was a landlord according to definition of "landlord" provided in clause (c) of section 2 of the Ordinance.
7. If tenancy rights are inheritable then rights of landlords are also inheritable and if same are claimed by one co-owner and not disputed by other co-owners then claim of one co-owner would be sufficient even without express consent or permission of other co-owners. Reliance in this respect may be placed on judgment of Hon'ble Supreme Court of Pakistan given in case of "Anwar Khan Vs Abdul Manaf' reported as (2004 SCMR 26).
8. In light of what has been discussed above, it was quiet apparent that both Courts below while dismissing ejectment of petitioner has not only drawn wrong conclusion from material present before it but has also ignored well established principles upheld by Hon'ble Supreme Court of Pakistan in above referred judgments. This Court even while looking the case in the limited domain, cannot be a contributory to said mistakes and would not perpetuate injustice. Besides, concurrent findings of facts if found contrary to the evidence and the result of misapplication of law, could be interfered in constitutional jurisdiction on the ground of unreasonableness. Therefore, it is quite safe to conclude that learned lower Courts have not exercised their jurisdiction properly and fairly hence this Court can competently undo such illegalities. Even otherwise, Courts of law are not supposed to perpetuate what is unjust and unfair by exploring explanation therefor. They should rather explore ways and means for undoing what is unjust and unfair. Reliance in this respect may be placed on the judgment of august Supreme Court of Pakistan given in case of "Muhammad Nawaz alias Nawaza" reported as (2014 SCMR 914). Instant constitution petition is allowed and resultantly both impugned judgments and orders of learned Courts below are set aside and resultantly eviction petition of petitioner is allowed as prayed for. Respondent shall however be given time of three months from today for vacating premises.