ARSHAD MUHAMMAD KHAN Versus KALSOOM BIBI

1. WALI MUHAMMAD KHAN, J‑‑‑ Through the instant petition Arshad Muhammad Khan, petitioner herein, seeks leave to appeal against the judgment of a learned Single Judge of the Peshawar High Court dated; 22‑4‑1992, whereby FA.O. No.39/91 filed by Mst. Kalsoom Bibi tenant/respondent was accepted and by setting aside the order of the Rent Controller, the application filed by the, petitioner (or eviction of the respondent was dismissed.

2. The facts of the case, in nutshell, are that Arshad Muhammad Khan petitioner is the owner of the suit house and Mst. Allah Rakhi, mother of Mst. Kalsoom Bibi respondent, was inducted as tenant on payment of Rs.190 per month as rent and on her death the respondent being her successor‑in‑interest, by operation of law became the tenant of the suit house. The petitioner in his application for eviction of respondent alleged that she is defaulter of rent to the extent of Rs.4,910 the outstanding rent for 26 months and sought her ejectment from the suit house. The respondent resisted the application, necessary issues in the case were framed, evidence led pro and contra thereon recorded and the learned Rent Controller vide his order dated 24‑9‑1991, holding the tenant/respondent as defaulter, ordered her eviction, directing her to vacate the premises within sixty days and to hand over vacant possession to the petitioner. On appeal by the tenant/respondent to the High Court the same was set aside as stated in the introductory part of the judgment.

3. We have heard Mian Shakirullah Jan, Advocate, for the petitioner, and have perused the record of the case.

4. As stated earlier, the only ground agitated in the application for the eviction of the tenant/respondent is default in payment of rent. It is not mentioned in the application as to when Mst. Allah Rakhi died and for how long she defaulted in the payment of rent nor it is specified when the respondent herself joined her mother in taking abode in the said house and when came into the exclusive possession of the same. The solitary statement of Zahoor Ahmad, attorney of the petitioner, is also silent on these points. Abdur Rehman, witness for the respondent, also did not disclose the date of death of Mst. Allah Rakhi the original tenant. The burden of proof of default in payment of rent is primarily on the landlord and in the absence of any allegation or satisfactory evidence the determination of default committed by Mst. Allah Rakhi during her lifetime was obviously very difficult because it was her personal knowledge whether she regularly paid the rent or not. No substantial reasons were advanced by the petitioner for not invoking the jurisdiction of the Rent Controller for her eviction on the ground of default during her lifetime. Similarly, the learned Single Judge of the High Court has ' rightly observed that it was incumbent on the landlord to prove that Mst. Allah Rakhi had died at least sixty days before the filing of application to make her successor, namely, Mst. Kalsoom Bibi liable for eviction on the ground of default in her individual capacity. The object of the enforcement of rent restriction laws is the protection of tenants from eviction except under certain conditions provided therein and unless those conditions are fully satisfied they are immune from ejectment. In the case in hand, the landlord having failed to establish affirmatively the allegation of default in payment of rent, the learned Single Judge of the High Court, on the appraisal of the evidence, decided the issue of default in the negative and set aside the orders of the Rent Controller regarding the eviction of the tenant/respondent. The conclusions essentially of facts are not open to interference at this stage particularly when no legal infirmity, misreading or non‑reading of evidence could be pointed out.

5. Resultantly, the instant petition is dismissed and leave to appeal is refused.

6. A.A./A‑1125/S Leave refused.