This Constitutional petition challenges order dated 10.6.2022 of learned Addl. District Judge, Rawalpindi whereby appeal of respondent No.2 Zia Ahmad Zia was allowed, the ejectment order dated 10.7.2021 was set aside and ejectment petition was declined.
2. Petitioner Mst. Arzoo Meena Khalid filed an ejectment petition under section 15 of Punjab Rented Premises Act, 2009 for eviction of respondent No.2 Zia Ahmad Zia from a portion of House No. 17-C, situated at Satellite Town, Rawalpindi, on the grounds of expiry of lease, violation of terms and conditions of tenancy and non-payment of rent, which was resisted by taking stance that the relationship of landlord and tenant did not exist between the parties and that he was a tenant of one Musa Khan. Application for leave to contest was allowed, issues were framed, parties led their evidence and, thereafter, the findings recorded were that relationship of landlord and tenant existed between the parties and that the tenancy agreement had expired and petitioner was liable to eviction on the ground of expiry of tenancy. This was vide order dated 10.7.2021 of learned Special Judge (Rent) Rawalpindi. Appeal filed by the petitioner was allowed, in result, the ejectment petition was dismissed vide order dated 10.6.2022 by learned Addl. District Judge, Rawalpindi which order is under challenge in this petition.
3. Heard.
4. Submissions made at bar have been considered, copies of the record inclusive of pleadings, oral and documentary evidence of parties have been examined. Case set up in the eviction petition was that portion of property was given on rent to respondent No.2 on 01.2.2018 @ Rs. 18,000/-; per month the tenancy was oral; the respondent No.2 wilfully defaulted in payment of rent since January 2019, legal notice was served upon him who despite that did not vacate the rented premises and that tenancy having expired, the petitioner was entitled to seek eviction of respondent No.2 on the ground of expiry of lease, non-payment of rent and violation of terms of tenancy.
5. In his application for leave to contest the respondent No.2 took a stance that he was in occupancy of property as a tenant but not of the petitioner but he was tenant of one Musa Khan on a monthly rental of Rs.12,000/- which was subsequently enhanced and that he was regularly paying the rent to him. After grant of leave the learned Special Judge (Rent) framed three issues viz. (i) whether there exists a relationship of landlord and tenant between the parties; (ii) if issue No.1 is answered in affirmative whether the respondent is liable to be evicted from the demised premises on the ground mentioned in the ejectment petition; and (iii) whether ejectment petition was not maintainable in its present form.
6. In evidence the petitioner appeared as AW- 1 and filed her affidavit Ex. P-1 and also produced Tipu Sultan as PW-2 who tendered in evidence his affidavit as Ex.P-2. Copy of transfer of allotment rights dated 06.5.2015 and copy of site plan were tendered as Mark-A and Mark-B. Respondent in his evidence appeared as RW-1 and produced his affidavit as Ex.R-1 and produced Musa Khan as RW-2. In her statement petitioner as PW-1 deposed that she was owner of the rented property which is part of house No. 17-C owned by her and that she had rented out the said portion of house to the respondent No.2 as tenant on a monthly rental of Rs.18,000/-, the tenancy was oral commencing from 01.2.2018 which had expired; and that despite notice respondent did not vacate the premises. In her cross-examination she reiterated her stance and nothing could be extracted therefrom adverse to her stance. She was supported by PW-2 who also deposed that the petitioner had rented out the portion of house to respondent No.2 on a monthly rental of Rs. 18,000/- w.e.f.
01.2.2018.
7. Respondent in his evidence appeared as RW-1 and admitted that he is a tenant in the property and that he was paying rent to one Musa Khan. In cross-examination he admitted that there was no written tenancy between him and Musa Khan nor he produced any document such as receipt of payment of rent. Respondent filed affidavit of one Abdullah son of Abdul Khan but strangely enough he was not produced in the witness-box, instead Musa Khan appeared for cross- examination. It appears that on observing that Musa Khan had never filed his affidavit alongwith the application for leave to contest/reply of ejectment petition nor any permission to appear as a witness in the case was obtained, his statement was excluded from consideration by learned Special Judge (Rent). The learned Special Judge (Rent) after indepth scrutiny of evidence and detailed reasoning allowed the ejectment by observing that the relationship of landlord and tenant was proved; Musa Khan had no concern whatsoever with the rented premises nor any proof of ownership or alleged tenancy with respondent No.2 was produced as such stance given by respondent No.2 was untenable, in result, ejectment of respondent No.2 was allowed.
8. In appeal the learned Addl. District Judge instead of considering the evidence on record and reasons which prevailed with the learned Special Judge (Rent) proceeded to set aside the ejectment order on self-assumption as to the proof of oral tenancy by assuming that as owner petitioner was expected to inquire in the credentials of respondent No.2 before renting out the property and that she should have some basis to repose trust in a person before renting out of the property. Curiously, on the one hand the learned Addl. District Judge observed that Musa Khan had no concern with the property while on the other he had held that the respondent No.2 might be an encroacher in the property.
9. The learned Addl. District Judge has proceeded on the assumption as if Musa Khan's testimony forms part of record little appreciating that Musa Khan never tendered his affidavit instead one Abdullah tendered his affidavit but in his place Musa Khan fraudulently appeared in the court who was cross-examined but on disclosure of the fact that he had not tendered his affidavit and he had appeared as "Abdullah" his statement was excluded from evidence. This fact was also noted by the learned Addl. District Judge in his order dated 07.5.2022 whereby his application under Order I, Rule 10, C.P.C. for impleadment as a party was dismissed with the observation that he could not establish his relevancy and connection with the instant property, therefore, his application for impleadment was dismissed. The relevant portion of the order dated 07.5.2022 reads as under: "The learned counsel on behalf of appellant (tenant) has argued in nature that the present appellant has no objection with regard to impleading the instant petitioner as party whereas the merits of the application under Order 1 rule 10 CPC are to be looked into as order could not be passed blindly and the court is to look into the touch stone regarding the question that whether the party is a necessary or a proper party. In the petition in hand, the appellant took stance earlier before learned Rent Tribunal about tenancy with the instant petition but he has not filed any copy of title document or any rent agreement. In this appeal the present petitioner has filed petition under Order 1 rule 10 CPC by annexing the copy of the sub power of attorney No. 1258 Bahi No.4, Jild No.101 page 232 in favour (Musa Khan) from the other co-jowners without the proof of possession with demarcation which did not prima facie establish him to be the necessary or the proper party in the ejectment petition. Instant petition even did not provide the necessary documents with regard to having obtained possession from principles with metes and bonds including site plan signed by the co-owners. Earlier the petitioner of petition under Order 1 rule 10 CPC appeared before the learned trial court on 24.5.2021 and got recorded examination in chief as RW 2 but earlier his affidavit was not tendered by the respondent/appellant alongwith his leave to contest and ultimately the evidence of Musa Khan /present petitioner was discarded as there was no permission sought from the court for substitution of the witness. The petitioner of petition under Order 1 rule 10 CPC could not establish his being relevancy and connection with the instant property. In this situation the petition in hand for impleading Musa Khan is dismissed."
In view of the order referred supra, there was hardly any justification for the learned Addl. District Judge to ignore his earlier observation in the order and banking upon the statement of Musa Khan as one of the bases for intervention in the order of Special Judge (Rent). It is manifest from the order that the appellate court had noted that Musa Khan did not produce any document for getting possession nor he could show any document of ownership in respect of the rented portion and that he could not establish his relevancy connection with the rented premises, the learned Addl. District Judge acted illegally and without lawful jurisdiction by relying on the stance of Musa Khan in the impugned order for the purposes of intervening the order of learned Special Judge (Rent).
10. Fact of the matter is that the petitioner had proved through oral and documentary evidence that she was owner/landlady of the property and that she had rented out the property to respondent No.2 who was her tenant and having been inducted by the petitioner, respondent No.2 could not either deny the relationship of landlord and tenant nor could challenge the title of petitioner. It is settled rule that in the absence of any admissible evidence to the contrary the title of landlord would be a strong presumption of existence of tenancy between the parties. Reference can be made to Shajar Islam v. Muhammad Siddique and 2 others (PLD 2007 SC 45) where it was observed to the effect that in the normal circumstances in absence of any evidence to the contrary, the owner of the property by virtue of title is presumed to be a landlord and person in possession of the premises is considered as tenant under the law or the tenancy may not be necessarily created by written instrument in express terms rather may be oral and implied.
Reference can also be made to Ahmad Ali alias Ali Ahmad v. Nasar Ud Din and another (PLD 2009 SC 453) in this context.
11. In the instant case the learned Special Judge (Rent) after properly analyzing evidence and scrutiny of law opined that respondent No.2 was a tenant. View so taken was based on reasonable and fair analysis and was in accordance with law which was illegally interfered with by learned Addl. District Judge on erroneous assumption and complete misreading and non-reading of evidence on record, as such, view taken by learned Addl. District Judge being against the rule in the cases supra, cannot sustain.
12. For the forgoing reasons, this constitutional petition is allowed. Resultantly, the impugned judgment dated 10.6.2022 of the learned Addl. District Judge, Rawalpindi being not sustainable is set aside. Order of ejectment of the respondent No.2 passed by the learned Special Judge (Rent), Rawalpindi dated 10.7.2021 is restored. The respondent No.2 is directed to hand over the vacant possession of the premises to the petitioner within sixty days of this Order.