MUHAMMAD AYUB, SHOP MANAGER BATA PAK. LTD Versus MUHAMMAD RAHMAN

SALAHUDDIN PANHWAR, J.--- This petition arises out of a judgment dated 11.10.2024 passed by the learned Peshawar High Court, whereby the Writ Petition of respondent No.1 (the respondent) was allowed, the orders of the Rent Controller and Appellate Authority were set aside, and the respondent was granted ejectment of the petitioners along with recovery of rent at Rs.50,000 per month from January 2016 to January 2024.

2. The respondent had filed an ejectment application against the petitioners before the Rent Controller, Swat, seeking possession of a shop situated in Main Bazar Chowk, Mingora, Swat, and recovery of rent from the year 2016 onward. He claimed that the tenancy agreement expired in 2016, but the petitioners retained possession of the premises, having locked it under the pretext of leaving certain articles behind. The petitioners, while not actively contesting the proceedings, had submitted a reply asserting that vacant possession had been handed over and all dues paid. They did not, however, participate further in the proceedings and were accordingly proceeded against ex-parte.

3. The Rent Controller allowed the application to the extent of ejectment but declined the claim for arrears of rent, holding that the landlord failed to prove any outstanding rent. The appellate forum concurred, observed that the application was filed nearly four years after the expiry of the tenancy and that no cogent evidence of arrears was brought on record. The High Court, however, in exercise of its writ jurisdiction, reversed these concurrent findings and granted the respondent full relief, including recovery of rent for the entire period from 2016 to 2024.

4. It is a settled principle of law, as enunciated in Fozia Mazhar v. ADJ Jhang (PLD 2024 SC 771), that the High Court, in exercise of its jurisdiction under Article 199 of the Constitution, may not substitute its own view on disputed questions of fact unless there is gross misreading or non-reading of material evidence, or findings that are wholly perverse or unsupported by the record. The High Court is not an appellate forum to reappraise evidence merely on grounds of perceived injustice unless the conclusions arrived at by the subordinate fora are shown to be legally untenable. In the present case, both the Rent Controller and the Appellate Authority concurrently found that the respondent failed to discharge the burden of proving rent arrears or continued possession by the petitioners after 2016. These findings were based on appreciation of evidence, or the lack thereof, and did not suffer from any legal infirmity or jurisdictional error.

5. The affidavit relied upon by the respondent (Ex. PW-1/1) remained uncorroborated. No witness was produced to support the claim that the petitioners continued to occupy the premises after 2016. The shop was found locked, and even according to the respondent s own pleadings and testimony, no activity was taking place therein. The individual named Saleem , in whose purported assurance the respondent allegedly refrained from taking possession, was neither impleaded as a party nor summoned as a witness. This constitutes withholding of the best available evidence. In law, such omission operates adversely against the party who fails to produce material witnesses without explanation.

6. Furthermore, the statutory regime under Section 13(2)(i) of the West Pakistan Urban Rent Restriction Ordinance, 1959 prescribes a period of sixty days for initiating proceedings in cases of non-payment of rent, in the absence of a fixed timeline in the tenancy agreement. In this case, the tenancy agreement expired in 2016. The ejectment application was filed in 2020. No explanation was offered for this extraordinary delay, nor was there any plea of acknowledgment or revival of the tenancy in the interceding period. The unexplained lapse of nearly four years is fatal to the claim, both on grounds of limitation and laches.

7. The learned High Court, in setting aside well-reasoned concurrent findings, failed to advert to these deficiencies. The rule is well settled, as reiterated in State Life Insurance v. Jaffar Hussain (2009 CLD 610) and Allies Book Corporation v. Sultan Ahmad (2006 SCMR 152), that interference in concurrent findings is permissible only when such findings are shown to be illegal, perverse, or based on extraneous considerations. None of these exceptions apply in the instant matter.

8. The finding of the High Court that the respondent was entitled to rent for eight years, in the absence of proof of possession or an ongoing tenancy, disregards fundamental rules of evidence. The landlord, having admitted that the shop remained locked and having produced no cogent evidence to show that the petitioners used or benefited from the premises during that period, cannot be awarded rent merely because the respondents failed to actively contest the proceedings. The burden of proof rests with the party asserting a claim, and the absence of rebuttal by the other side does not automatically result in the success of the claim, particularly when the claim is unsupported by credible evidence.

9. In view of the forgoing we convert this petition into an appeal and allow the same, set aside the impugned judgment dated 11.10.2024 passed by the learned Peshawar High Court and restore the judgments of the Rent Controller dated 21.06.2021 and the Appellate Authority dated 28.10.2022.

UN/M-96/SC Appeal allowed.