IJAZ-UL-HASSAN, J.--- Haji Said Wahab Khan, respondent No. 1 herein, filed Eviction Applications, in the Court of Civil Judge/Rent Controller, Mardan seeking ejectment of Amjad Ali petitioner herein and two others, from the suit premises on the grounds of default in payment of rent, sub--letting and bona tide personal requirement and recovery of arrears of rent.
2. It was averred in the applications that Qadir and Muhammad Aslam were inducted as tenants in the suit houses in Mohallah Said Wahab Khan, Mardan at the rate of Rs.150 per month as rent; that they made wilful default in payment of rent since January, 1995 and that subsequently they vacated the suit premises and handed over the same to Amjad Ali petitioner without consent and permission of the landlord.
3. In the written reply, the relationship of landlord and tenants between Said Wahab, Qadir and Muhammad Aslam was admitted but the other allegations were repudiated. The non-payment of rent was also denied. The learned Rent Controller in view of the pleadings of the parties formulated as many as eleven issues for trial. On the basis of evidence produced by the parties, and arguments addressed before him, the learned Rent Controller proceeded to hold the default in payment of rent has been made and that Qadir and Muhammad Aslam tenants are guilty of sub- letting the suit premises in favour of Amjad Ali without consent and permission of the landlord.
However, he found Amjad Ali entitled for recovery of Rs.7,000 as expenses incurred by him upon repairs etc. Of the suit houses. Having held so, vide judgment and decree dated 27-5-2000 the applications of the landlord were allowed and respondents were directed to vacate the suit houses within one month. Amjad Ali, feeling aggrieved preferred an appeal in the Court of learned District Judge, Mardan seeking reversal of the impugned judgment and decree of the learned Rent Controller, Mardan, on a number of grounds. The learned Appellate Court affirmed the decision of the Court below and dismissed the appeal vide judgment dated 26-1-2000.
4. Amjad Ali petitioner has filed instant Writ Petitions Nos.290 and 291 of 2002 challenging the judgments and decrees of the Courts below as without lawful authority and -of no legal effect. This consolidated judgment shall dispose of both the writ petitions.
5. Mr. Muhammad Asif, Advocate, learned counsel for the petitioner attacked the impugned judgments and decrees of the Courts below on the ground that the evidence recorded by the trial Court is not appreciated in right direction and Qadir and Muhammad Aslam have been erroneously adjudged sub--letting the suit houses to Amjad Ali, without consent and permission of Said Wahab landlord. The learned counsel contended that the entire arrangement, was made with the prior permission of the landlord and he accepted the same on receipt of Rs.7,000 from Amjad Ali. The learned counsel also submitted that the original tenants and Amjad Ali had been regularly paying rent and no default was made. However, when the landlord refused to receive rent, same was tendered through money orders and deposit in Court.
6. Mr. Adam Khan, Advocate, learned counsel for the landlord, on the contrary defended the impugned judgments and decrees and contended that the writ petitions are not maintainable and merit dismissal.
7. We have heard, in detail, the arguments of learned counsel for the parties in the light of the material on file and documents annexed with the petitions.
8. It is an established principle of Qanun-e-Shahadat that a person who asserts/alleges a particular fact and wants the Court to believe that such fact exists, he shall be required to prove the existence of such a fact.
9. Coming to the question regarding wilful default in payment of rent, we find that nothing has been brought on record to indicate that default was made since January, 1995 which has rendered the tenants and Amjad Ali petitioner liable for ejectment from the suit premises. It is not denied that the landlord was not in the practice of issuing receipts to his tenants regarding payment of rent. In absence of corroborative evidence it is difficult to believe that rent was not paid since January, 1995 and the tenants were rightly adjudged as rent defaulters. We have it in evidence that on refusal of the landlord to receive rent, the same was sent through money orders and deposit in Court. The plea of the landlord regarding default on the part of the tenants has not been substantiated by evidence on record. The finding of the learned trial Judge whereby the tenants have been adjudged as rent defaulters, is not supported by actual evidence on the file and cannot be allowed to remain intact. The same is hereby displaced.
10. Resultantly, we find that judgments and decrees of the Courts below, are based upon erroneous assumption of law and facts. The evidence adduced by the parties has not been appreciated in right direction to achieve the cause of justice. The writ petitions are accepted and the impugned judgments and decrees are declared without lawful authority and of no legal effect. The eviction applications filed by landlord are dismissed with no order as to costs.