2011 C L C 1150
[Quetta]
Before Muhammad Noor Meskanzai, J
NIAZ GUL ---Appellant
Vers us
Malik MUNIR AHMED ----Respondent
First Appeal from Order No.12 of 2009, decided on 30th July, 2010.
West Pakistan Urban Rent Restriction Ordinance (VI of 1959) ---
----Ss. 13 & 15 ---Ejectment of tenant on ground of default in payment of rent ---Tenant
though had been depositing rent with Civil Nazir of the court, but had not been depositing
rent according to actual rate ---Actual rate of rent was Rs.500 p.m., but tenant had been
depositing rent at Rs.150 p.m. ---Receipt document produced by the tenant had been tampered
with and scratched ---Tenant had intentionally depositing less rent than the original rent liable
to be paid ---Rent Controller had rightly accepted ejectment application filed by landlord on
ground of default in payment of rent ---Counsel for the tenant had failed to point out any
misreading or non -reading of evidence on record, nor any legal infirmity, impropriety or
perversity could be pointed out ---Rent Controller had properly appreciated evidence on
record ---Conclusions drawn by Rent Co ntroller being legal and justified, could not be
interfered with in appeal ---Same were upheld, in circumstances.
Muhammad Yaqoob Khan for Appellant.
Ayaz Sawati and Aamir Ehsan for Respondent.
Date of hearing: 28th May, 2010.
JUDGMENT
MUHAMM AD NOOR MESKANZAI, J .--- This appeal calls in question the validity of the
order dated 28th February, 2009 passed by Civil Judge -IV/Rent Controller, Quetta, whereby
appellant was directed to hand over the vacant possession of the shop in question to
respon dent.
2. Facts succinctly stated are that respondent filed Eviction Application No.82 of 2005 under
section 13 of the Rent Restriction Ordinance before the Rent Controller, Quetta wherein it
was contended that respondent is owner and landlord of Shop No. 11. The shop inquestion
was rented out to appellant at the rent of Rs.500 per month payable on 15th of each
succeeding month. The appellant was alleged to be a bad paymaster and thus the rents remain
unpaid from July, 2004 till date of filing of applicatio n, hence the sole ground agitated for
eviction was the default in payment of the rents. The appellant while submitting rejoinder to
application disputed the relationship and denied the factum of being a bad paymaster.
Appellant stated that a piece of land in question belonging to one Malik Ishaq was rented out
to him in the year, 1983 at a monthly rent of Rs.20 p.m. The said shop remained in the
tenancy of appellant. While raising the said contention, appellant in his written statement vide
Para-A stated as under: ---
"(a) That the contents of Para No.1 are vehemently denied being a concocted one in
fact the respondent has got the said piece of land from one Malik Ishaq in the year of
1983. At a monthly rent of approximately Rs.20 per month which has been t ime to
time enhanced with the consent of Malik Ishaq and replying respondent. That the said
shop remain with the applicant on tenancy in the year of 1979 at that time the alleged
Khasra number was joint owned between Malik Kabir and Malik lshaq and under t he
principle of law of inheritance the said piece of land has devolved in the share of
Malik Gul Muhammad Khan son of Malik Kabir Khan in 1993 and in this regard a
tenancy agreement has also been executed among Malik Gul Muhammad Khan and
the respondent on 18-5-1993 whereby the rent of said shop has been fixed as Rs.150/ -.
That by means of alleged tenancy agreement that a landlord namely Malik Gul
Muhammad Khan and the respondent has agreed that it would be a life time tenancy
agreement in para No.1 and lan dlord has no power to evict/eject the respondent and
no authority has been vested to the landlord to enhance the rent through out the life of
both parties and on this score the alleged eviction application has been filed just to
harass the respondent to il legally evict him."
In view of controversial pleadings of the parties, the trial Court framed following issues: -
(1) Whether there is no existing relationship of landlord and tenant between the parties?
(2) Whether the respondent has committed wilfu l default in the payment of monthly rent
since July, 2004 till date?
(3) Relief?
3. Respondent in order to prove his case produced three A.Ws., besides recording his
statement. Similarly, appellant produced two R.Ws., namely Malik Gul Muhammad son of
Malik Kabir and Azizullah Patwari. After observing the legal formalities, the trial Court vide
its Order dated 5th April, 2007 dismissed the eviction application. Being dissatisfied with the
order so passed, FAO No.18 of 2007 was filed before this Court, wh ich was allowed vide
order dated 25th April, 2008 and the matter was remanded to the trial Court with the direction
to frame additional issues. The trial Court whereafter framed the following additional issues: -
--
(1) What is actual number of the shop in dispute?
(2) Whether the shop in dispute fell to the share of appellant and by operation of law,
respondent has become tenant of appellant?
(3) What is the actual rate of rent of shop in dispute?
4. After framing of additional issues, respondent re -examined Gul Muhammad and the
representative of Tehsil office. To ascertain the actual number of shop in question, a local
commissioner was appointed, who after inspection of the site filed the report on 23rd
October, 2008 by holding that respondent has tr ied to overwrite Shop No.19 upon the shop in
dispute. In fact shop in question bears number 11 and not 19. Needles to mention that no
authentic municipal number has been allotted to the shop in dispute, thus at the strength of
available material, the trial Court allowed the application vide impugned order.
5. Learned counsel for appellant submitted that in fact appellant is not defaulter, the moment
rent was refused to be received, as -the same was deposited with the Civil Nazir of the Court.
Basically agr eement dated 15th May, 1993 pertaining to Mutation No.855 vide Exh -P/1-A is
the shop in question and thus the trial Court misread the evidence available on the record,
therefore impugned judgment is liable to be set aside.
6. The learned counsel for resp ondent vehemently opposed the contentions so put forth and
submitted that the trial Court after proper appreciation of material available on record rightly
concluded that the respondent is the owner/landlord of the property in dispute and appellant
not onl y is a bad paymaster but in fact does not admit respondent No.1 to be the
owner/landlord and this point in itself is sufficient enough to constitute a ground for rejection
of appeal. It was further asserted that there is gift deed in favour of respondent N o.1 and in
any case respondent has proved his case.
7. I have heard both the learned counsel for the parties and perused the available record. Perusal of record
reflects that this is the second time the case has been brought before this Court. Earlier by way of filing
FAO No. 18 of 2007 filed by respondent, which was allowed by this Court vide judgment dated 5th
April, 2010. Through the same judgment, appeal was allowed and three additional issues
were framed. After remand of the case, respondents produce d two A.Ws. namely Malik
GuI Muhammad son of Malik Kabir and Azizullah Patwari, the letter produced Fard -e-
Inteqal as Exh.1 -A. Besides, a local commissioner was appointed, who was examined by
the trial Court and site inspection report was produced as Exh.C -1. Whereafter the trial
Court discussed the issues with reference to evidence available on record. The learned
trial Court while resolving issue No.1 in affirmative appreciated the material available on
record in its true perspective and entirely in accor dance with law. Even according to
version of appellant, basically the property in question was rented out to appellant by one
Malik lshaq, who happens to be brother of one Malik Kabir the father of respondent.
Thereafter again according to appellant, the s aid property was rented out to appellant by
Malik Gul Muhammad son of Malik Kabir Khan in the year, 1993, who is brother of
respondent (the present owner). Further Malik Gul Muhammad entered into witness box
and admitted the ownership of respondent, so in such view of the matter, there was
overwhelming evidence available on record justifying the conclusions drawn by the trial
Court. Similarly, the issue No.2 was dilated upon with reference to the material available
on record reasonable and proper conclusion s were drawn by the trial Court. The main
thrust of the argument of the appellant was that since appellant has regularly been
depositing the rents with CCD right from the day when rents were refused to be received,
therefore, no question of default arises. The perusal of record reveals that though
appellant has been depositing rent with CCD at the rate of Rs.150/ - per month, but the
crucial question attended to by the trial Court was that whether the rent was of Rs.150/ - or
Rs.500/ -, the evidence so produce d and material placed on record by the appellant were
taken into consideration and after proper appraisal and scrutiny thereof, it was justly
concluded that the receipt and document produced by appellant has been tampered with
and scratched. It is crystal clear that the appellant has intentionally deposited Rs.150 per
month less than the original rent liable to be paid. Issue No.3, framed by this Court was
resolved mainly at the strength of the report of local commissioner. The local
commissioner inspected the site in presence of the parties and their counsel, prepared
sketch of the market and submitted her report. The local commissioner was subjected to
cross -examination by both the parties, but she remained firm and it was proved on record
that basically t he shop in question bears No.11, therefore; the trial Court attended to this
issue with due application of judicial mind and after proper appreciation of material
available on record. As far as issue No.4 is concerned, to prove this issue, the trial Court
has mainly relied upon the revenue entries. Through Mutation No.855 dated 16th April,
1994, respondent is the sole owner of the premises in question, besides the statement of
AW-1, who is the brother of respondent, clearly stated that in consequence of fam ily
settlement, the property in question devolved upon applicant/respondent. As far as issue
No.5 is concerned, this issue has been decided by appreciating the entire material
available on record while dilating upon issue No.2 and thus conclusions so drawn are
legal and proper. The final issue i.e. issue No.6 regarding the relief was decided in favour
of respondent by way of granting application. The learned counsel for appellant failed to
point out any misreading or non -reading of evidence on record nor fo r that matter any
legal infirmity, impropriety or perversity could be pointed out. To the contrary the
evidence on record has been properly appreciated by keeping in view the law applicable
on the subject. The conclusions so drawn by the trial Court are le gal and justified, hence
need no interference by this Court with the result I uphold the judgment passed by trial
Court on 28th October, 2009 and dismiss the appeal with no orders as to costs.
H.B.T./28/Q Appeal dismisseThis 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,
let us know.