2020 YLR 2269 ISLAMABAD

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UMER TANVEER BUTT VS MUHAMMAD IBRAHIM Ss. 17, 2(j) & 5---Ejectment of tenant---Denial of relationship of landlord and tenant---Lease agreement---Onus to prove---Claim of sale agreement by tenant in his favour---Scope---Ex-parte proceedings having been set aside---Effect---Document produced as "mark" by the party---Evidentiary value---Provisions of Qanun-e-Shahadat and Civil Procedure Code, applicability of---Ex-parte proceedings were conducted against the tenant and landlord submitted affidavit-in-evidence and copy of lease agreement was produced in the statement of his counsel---Tenant thereafter moved application for setting aside ex-parte proceedings and same was accepted---Rent Controller framed issue with regard to relationship of landlord and tenant between the parties and while relying upon the documents produced by the landlord prior to setting aside of ex-parte proceedings allowed eviction petition---Validity---Landlord was bound to prove that relationship of landlord and tenant existed between the parties---Once Rent Controller had framed issue and placed burden of proof on a party then he could not absolve such party from such burden---Parties were expected to lead evidence in accordance with the onus placed at the time of framing of issues---Landlord had not applied for the amendment of issue so that onus of proof could be placed on the tenant---Mere fact that tenant had not been able to prove that he was owner of demised premises was not sufficient to accept eviction petition---Landlord should have proved that tenant was bound to pay rent as a consideration for possession of demised premises through rent receipts or witnesses in support of eviction petition---Tenant had filed a suit for specific performance of agreement to sell during pendency of the ejectment petition---Mere fact that tenant had filed a suit for specific performance could not be a valid ground for allowing him to remain in possession on the demised premises---Agreement to sell neither created nor purported to create any right or interest in such property nor it transferred ownership to the vendee---Agreement to sell was not a title document and could not be treated as an alienation---Unless and until suit for specific performance was decreed, tenant could not claim to have become owner of suit premises---Civil Court was to determine whether or not tenant had purchased the demised premises---Ejectment proceedings could not be stayed or stalled on the plea that tenant was holding an agreement to sell---Courts below had relied upon the copy of lease agreement produced by the counsel of landlord prior to setting aside of ex-parte proceedings---Documents produced by the counsel of landlord prior to setting aside of ex-parte proceedings were not resubmitted in evidence---Courts below had erred by not appreciating that evidence produced prior to the ex-parte proceedings having been set aside was liable to be discarded---Nothing was on record as to why lease agreement was not produced by the landlord with eviction petition or affidavit-in-evidence---Copy of lease agreement was not tendered in evidence---Tenant had denied the relationship of landlord and tenant and had submitted that lease agreement was fake and bogus---Landlord should have produced original lease agreement to prove relationship of landlord and tenant, in circumstances---Landlord had not produced the marginal witnesses of lease agreement to prove its execution---Proceedings before Rent Controller were in the nature of an inquiry and provisions of Qanun-e-Shahadat, 1984 and Civil Procedure Code, 1908 were not applicable to the said proceedings---Relationship of landlord and tenant had been denied by the tenant and sole basis of eviction was a copy of rent agreement---Original lease agreement had not been produced in evidence, without a plausible explanation for not producing the same---Rent Controller while setting aside ex-parte proceedings had not saved the evidence produced by the landlord or document submitted by his counsel---Nothing was on record that landlord had relied upon the documents having earlier been produced by his counsel---Proceedings taken from the stage of non-appearance of a party would become ineffective upon setting aside the same---Ex-parte evidence recorded after passing the order to proceed ex-parte was liable to be discarded and proceedings should have been taken afresh in presence of tenant, in circumstances---Court could not form its opinion on the material which was not legal and reliable evidence---Landlord's ex-parte evidence and the documents produced by his counsel could not bind the tenant after setting aside of the ex-parte proceedings---Copy of lease agreement produced by landlord's counsel prior to ex-parte proceedings having been set aside could not be termed as legal evidence---Courts below had misread the evidence and committed jurisdictional irregularity by holding that there existed relationship of landlord and tenant on the basis of copy of lease agreement produced by the landlord's counsel prior to setting aside of ex-parte proceedings---Photocopy of a document having been produced as "marked" had no evidentiary value---Agreement for letting out a building or land was to be in writing---Landlord had failed to discharge the onus of proving relationship of landlord and tenant as he had not exhibited the rent agreement allegedly executed between the parties---Rent Controller in absence of relationship of landlord and tenant had no jurisdiction to proceed with the matter and owner of the property had other remedies to seek eviction of an illegal occupant---Impugned orders passed by the Courts below were set aside and matter was remanded to the Rent Controller for decision afresh---Constitutional petition was allowed accordingly.