2011 C L C 1613
[Quetta]
Before Abdul Qadir Mengal, J
Haji HUSSAIN KHAN and another ----Petitioners
Versus
Haji ABDULLAH JAN and another ----Respondents
Civil Revision No.74 of 2011, decided on 27th May, 2011.
(a) West Pakistan Urban Rent Restriction Ordinanc e (VI of 1959) ---
----S. 13---Ejection of tenant ---Relationship of landlord and tenant ---Determination ---Powers
of Rent Controller ---Scope ---Rent Controller is not bound in every case to dismiss ejectment
petition of landlord for the reason that title of landlord had been challenged or any party has
claimed that there is no relationship of landlord and tenant ---Rent Controller was duty bound
to properly evaluate material which has come in evidence or has been brought on record.
PLD 1973 Quetta 1; 2004 SCMR 1738 and 2005 YLR 1383 distinguished.
2005 SCMR 843 ref.
(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959) ---
---S. 13---Civil Procedure Code (V of 1908), S.115 ---Ejection of tenant ---Relationship of
landlord and tenant ---Determin ation ---Subletting of premises ---Tenant without permission of
landlord sublet the premises and put petitioners in possession of shop/tin question --Ejectment
application filed by landlord was allowed by Rent Controller and eviction order was passed
against petitioners ---Plea raised by petitioners was that Rent Controller had no jurisdiction to
decide the question of title of property ---Validity ---Findings of Rent Controller were related
to relationship of landlord and tenant, in which, it had fully been esta blished that tenant had
violated. provisions of section 13(2)(ii) of West Pakistan Urban Rent Restriction Ordinance,
1959, and without permission or written consent had transferred or sublet shop in question to
petitioners and petitioners were not allowed to make redundant or emasculate the law of West
Pakistan Urban Rent Restriction Ordinance, 1959, to raise any fictitious or concocted claim
for non -existence of relationship with landlord as a tenant ---Provisions of West Pakistan
Urban Rent Restriction Ord inance, 1959, related to hierarchy of resolving civil nature of
disputes and any ancillary or offshoot of any tenancy agreement in respect of title or
relationship could be seen and resolved in respect of that tenancy agreement ---However, in
any distant, i ntricate and complicated question of title or any question of illegally grabbing
property, not related to tenancy agreement, Rent Controller had no jurisdiction to
independently try the question and give any finding related to the same because it was only
the civil court which could entertain such disputes, after proper proof and evidence to decide
the matter ---Rent Controller did not exercise a jurisdiction which had not been vested in it by
law or failed to exercise his jurisdiction so vested in him or he did not exercise his
jurisdiction, illegally or with material irregularity ---High Court declined to interfere in
eviction order passed by Rent Controller against petitioners ---Revision petition was
dismissed in circumstances.
Abdul Ghani Mashwani for Petitioners.
Samand Khan Mandokhail for Respondents.
Date of hearing: 20th May, 2011.
JUDGMENT
ABDUL QADIR MENGAL, J. --- This civil revision under section 115, C.P.C. has been
preferred against the order dated 25 -5-2009, passed by the learned R ent Controller/Judicial
Magistrate, Zhob, whereby the learned Judicial Magistrate allowed the eviction application,
directing the appellant and respondent No.2 to vacate the Shop No.G/210 -A by handing over
its possession within two months to respondent No. 1 including paying the outstanding
amount to respondent/ applicant from 2007 till the decision.
2. Brief facts leading to file present revision petition are that applicant/respondent No.1, Haji
Abdullah Jan son of Sultan Muhammad, through agreement dated 16-2-2004 gave on rent a
Shop No.G/210 -A to respondent No.2, Muhammad Yousaf son of Zareef Khan, on monthly
rent of Rs.5,500 (five thousand and five hundred) for a period of six (6) years, commencing
from February, 2004 till February, 2010. It was held in that agreement that Muhammad
Yousaf would not be ejected if he would pay rent of the shop regularly, however, if he on his
own free -will leave the shop, then he would hand over the vacant possession to respondent
No.1, Haji Abdullah Jan son of Haji Sultan .
The respondent No.2, Muhammad Yousaf son of Zareef Khan, on account of said agreement,
took the possession of the shop being tenant of owner/landlord. However, in the year 2005,
Muhammad Yousaf, respondent No.2, handed over the possession of the said S hop
No.G/210 -A situated at Jamia Masjid Road, Zhob, to petitioner Haji Hussain Khan and his
son on account of closing his business to pay rent onwards to respondent No.1, Haji Abdullah
Jan, the landlord, who carrying business out of the country at Dubai. T he respondent No.1 on
his returning demanded the vacant possession his shop whereupon, petitioner Haji Hussain
Khan and his son denied the payment of rent to the owner claiming that they had purchased
the rented shop from him the respondent No.1 Abdullah J an the owner of the shop, as such,
there is no any relationship between them as landlord and tenant.
Confronting the position, the respondent No.1, Haji Abdullah Jan, filed ejection application
against respondent No.2, Muhammad. Yousaf son of Zareef Khan and petitioners Haji
Hussain Khan and Najeebullah on the ground that his tenant, Muhammad Yousaf, illegally
violated the provision of the tenancy agreement executed between them and he without
informing him, sublet the Shop No.G/210 -A.
After filing the ejection/application before the Rent Controller/Judicial Magistrate, Zhob, the
learned trial Court proceeded in the matter and directed the respondents to file their
rejoinders. The respondent No.2, Muhammad Yousaf, admitted the execution of the
agreement and so as also stated that, actually, while on the closure of his business, petitioner,
Haji Hussain Khan, contacted him and asked him that he having close relations with
respondent No.1/applicant, Haji Abdullah Jan, as such, on that he handed over the pos session
of shop in question, he regretted that he on account of misunderstanding did not get any
permission from the landlord/applicant, Haji Abdullah Jan, while the petitioners/respondents
Haji Hussain Khan and Najeebullah denied all the claim of responde nts and got plea that they
through the agreement dated 3 -3-2004, had purchased the disputed shop from the respondent
No.1/applicant, Haji Abdullah Jan.
The Rent Controller, after perusing the pleadings of the parties, framed the following issues
for the disposal of the matter: ---
(i) "Whether the applicant has rented out Shop No. C/210 -A. situated at Jamia Masjid
Road, Zhob, to respondent No.1 ? (O. P. A)
(ii) Whether respondent No.1 had sublet the shop in question to respondent No.2
and 3? (O.P.A)
(iii) Whether respondents No. 2 and 3 had purchased the shop in question from
applicant? (O.P.A)
(iv) Whether the instant application is maintainable in presence of sale agreement?
(O.P.A)
(v) Relief? (O.P.A.)"
However, on the conclusion of the matte r, the learned trial Court passed the impugned order,
against which, the present appeal.
3. I have heard Mr. Abdul Ghani Mashwani, Advocate for petitioners, Mr. Samad Khan
Mandokhail, Advocate, was heard for respondents. After hearing both sides, I have also
perused the record of the case. It may be pointed out that at the trial, applicant/respondent
No.1 has produced support of his contentions two (2) witnesses, AW -1, Zareef Khan son of
Juma Khan and AW -2, Sultan Jan 'son of Multan, and then has recorded his own statement,
whereas, Muhammad Yousaf son of Zareef Khan, respondent No.2, also recorded his
statement admitting the claim of the applicant that he had got the shop through an agreement
from the applicant, Haji Abdullah Jan and retained the shop wit h him for about eighteen (18)
months, whereafter, he wound up his business. In the meanwhile, Haji Hussain Khan,
petitioner, contacted him and told him that he had settled the affairs of the shop with the
owner, and requested him to hand over him the shop, as onwards he would himself pay the
rent.
The respondents Nos.2 and 3, while denying the relationship with applicant/landlord as a
tenant, have stated that they had purchased the Shop No.G/210 -A from applicant/respondent
No.1, but he, with conspiracy an d collusion with the respondent, Muhammad Yousaf son of
Zareef Khan, has filed present application for vacation. The petitioners produced two (2)
witnesses, Haji Galla Jan RW -1 and Doulat Khan RW -2, and then, recorded their statements
in support of their c ontention.
4. Learned counsel for petitioners mainly contended that there is no relationship of the
landlord and the, tenant between the parties, which in the present matter, question of the title
was involved, as such, Rent Controller had no jurisdictio n to entertain and decide the matter.
In this connection, learned counsel relied on PLD 1973 Quetta 1, which reads as follow:
"(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S.13-
Proceedings under S.13 can only be taken if relationship of landlord and tenant
established -Landlord claiming party, in occupation of his property to be a trespasser
and unauthorized occupant -Controller has no jurisdiction to pass order of eviction.
There can be no gainsaying the fact, that a Rent Controller c an proceed with an
application under section 13 of the Rent Restriction Ordinance, only if he finds that
a relationship of landlord and tenant subsists. In case of a dispute between the
parties on that score, he has to decide it as a preliminary issue. Whe re the case of the
landlord all along was that the opposite -party was an unauthorized occupant it was
held that the Rent Controller had no jurisdiction in the matter and the order passed
by him was a nullity and liable to be set aside."
Learned counsel a lso produced in support of his contention 2004 SCMR, 738 that if question
of title is involved in any matter, then, such question is not to be determined by a Rent
Controller. Learned counsel in this regard also relied upon YLR 2005 page 1383.
The counse l for respondents contended that actually, respondent No.2 Muhammad Yousaf in
violation of the section 13(2)(ii) of the Balochistan Urban Rent Restriction Ordinance, 1959,
has sublet the shop in question to petitioners without any written consent of the la ndlord, as
such, on account of the same, he is liable to hand over the `possession of the shop in question
along with the outstanding amount, which he has not paid for that period. Learned counsel
further argued that the so -called agreement is unregistered and unstamped, as such, same is
inadmissible in evidence and the learned counsel again relied upon 2005 SCMR 843, wherein
the honourable Supreme Court specifically has held, the relevant portion is reproduced herein
below: ---
"In the instant case no wri tten consent of the landlord was either pleaded or proved.
The landlord having not consented in writing can rightly challenge the subletting
which, in the instant case, is rather admitted. On this score alone tenants were liable
to be ejected and the learn ed High Court should have avoided the interference in the
concurrent findings and that too under Article 199 of the Constitution."
After hearing the counsel for the parties and perusing the record of the case, admittedly, the
applicant/respondent No.1, Haji Abdullah Jan, has successfully proved his relationship as a
landlord with Muhammad Yousaf, from whom, the petitioners have got the Shop No.G/210 -
A being sublet. The evidence shows that petitioners have failed to rebut the contention of
respondent No.1 , Haji Abdullah Jan, and respondent No.2, Muhammad Yousaf, that there
was no relationship of landlord and tenant between them, so as petitioners also have failed to
rebut the fact that they had not got the shop in question, from Muhammad Yousaf respondent
No.2, on account of his subletting, The so -called agreement shows that same is fictitious
document, perhaps, hurriedly prepared to desist the claim of respondent No.1 Haji Abdullah
Jan. The RW -I Haji Galla Khan, and RW -2 Daulat Khan only have stated that t he petitioners
had purchased the shop from applicant, Haji Abdullah Jan, in consideration of Rs.15,000
(Rupees fifteen lacs only) on 3 -3-2004, out of which, Rs.10,000 (Rupees ten lacs) was paid in
cash and it was agreed that on return of respondent No.1, H aji Abdullah Khan, from Dubai
on 3-2-2005, further Rs.3,000,00 (Rupees three lacs) would also to be paid and it was also
held- the remaining Rs.2,000,00 (rupees two lacs) would be paid .at the time of transfer or the
mutation entry of the shop, however, no ne of the R.Ws. have stated about the possession or
transfer of the shop, as to where and when the same was taken place. This so -called
agreement seems to have not been attested at all, nor same has been stamped properly. Again,
the evidence of Haji Galla Khan, who is a marginal witness of the document, shows that he
never visited Zhob in the month, in which, the agreement of sale stated to have been
executed.
Anyhow, now, while adverting to the arguments of the learned counsel for petitioner, it may
be pointed out that same having no force. While considering the circumstances of the present
case, a Rent Controller is not bound in every case to dismiss the ejectment petition of
landlord on the reason that title of landlord has been challenged or any party has claimed that
there is no relationship of landlord and tenant. It is duty of the Rent Controller to properly
evaluate material, which has come in evidence or has been brought on record. The quoted
authorities of the learned counsel for petitioners havin g no any relevancy in the present
matter, as here in the instant case, respondent No.2, Muhammad Yousaf, and even petitioners
had admitted' this fact that ownership of the shop in question originally belonged to
applicant/respondent No.1, whereas, through evidence, it has come on record that petitioners
have got the possession of the disputed shop from the tenant, Muhammad Yousaf. It again
may be observed that in the present matter, question of title was not involved, but actually,
findings of the Rent Cont roller were related to the relationship of landlord and tenant, in
which, it has fully been established that Muhammad Yousaf, being tenant of the
applicant/respondent No.1, Haji Abdullah Jan, violated the provisions of section 13(11) of the
Balochistan Urb an Rent Restriction Ordinance 1959, and without permission or written
consent has transferred or sublet the shop in question to petitioners, and petitioners were not
allowed to make redundant or emasculate the law of Rent Restriction Ordinance to raise any
fictitious or concocted claim for non -existence of relationship with landlord as a tenant.
Admittedly, the provision of Balochistan Urban Rent Restriction Ordinance, 1959, actually
relates hierarchy of resolving civil nature of disputes and any ancillary or offshoot of any
tenancy agreement in respect of a title or relationship could be seen and resolved in respect of
that tenancy agreement, however, any distant, intricate and complicated
question of title or any question of illegally grabbing property see ms involved, not related to
the tenancy agreement then, Rent Controller having no jurisdiction to independently try
the question and give any finding related to the same, because it is the only civil Courts,
which entertain such disputes, after proper prob e and evidence decide the matter.
Hence, in the above discussed circumstances, present revision petition has no any(?) force as
learned Rent Controller has not exercised a jurisdiction, which has not been vested in it by
law or has failed to exercise his jurisdiction so vested in him or he has not exercised his
jurisdiction, illegally or with material irregularity. Thus, this civil revision petition is hereby
dismissed.
M.H./43/Q Revision dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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