Mahesh Kumar Chawala v. Abdul Karim,

2011 C L C 1844 [Quetta] Before Jamal Khan Mandokhail, J MAHESH KUMAR CHAWALA ----Petitioner versus Haji ABDUL KARIM ----Respondent F.A.O. No.87 of 2009, decided on 19th July, 2011.

West Pakistan Urban Rent Restriction Ordinance (VI of 1959) ---

---Ss. 13(2)(ii)(a), (3)(a) & 15 ---Ejectment of tenant on grounds of subletting by tenant and personal bona fide need of landlord for his son ---Landlord had not mentioned as to which of his sons was jobless, for whom the shop was required, because the name of the son had not been mentioned in the ejectment application; nor the witnesses and the landlord in their statements before the Rent Controller disclosed the same ---No proper person had been specified for the purpose of getting the possession of the shop, i f an eviction order was passed, it could not be implemented for the reason that who would get the possession ---Son for whom the shop in question was required did not appear before the Rent Controller ---Since the application was for the personal bona fide u se and occupation of the son of landlord, his appearance before the court and recording his statement was necessary being the proper person to explain his requirement ---Without recording the statement of the son for whom the shop was required, it was not p ossible for the landlord to prove the personal bona fide need of his son and also the requirement could not be judged ---Landlord did not make the alleged sublessee as party to the ejectment application; nor had stated in his application as to when the shop in question had been sublet ---By not impleading the sublessee as a party, the ground of subletting, could not be agitated, nor it could be proved ---Impugned order passed by Rent Controller was set aside and ejectment application filed by the landlord was dismissed, in circumstances. Syed Mumtaz Hussain Baqri for Appellant. Habib Tahir for Respondent. Date of hearing: 20th May, 2011.

JUDGMENT

JAMAL KHAN MANDOKHAIL, J. --- Facts in brief are that the respondent filed an application under section 13 of the Balochistan Urban Rent Restriction Ordinance, 1959, against the appellant/tenant. On the grounds of subletting and personal bona fide used and occupation of the son of the applicant. The appellant filed rejoinder to the application and contested it on legal as well as factual grounds. The trial Court framed the following issues: --- (1) Whether the application under section 13 of the Rent Restriction Ordinance is not maintainable? (2) Whether the shop in question is required for the personal bona fid e and business of applicant's son? (3) Whether the respondent sublet the shop in question to the other person? (4) Whether the applicant is entitled to relief claimed for? (5) Relief? To prove his case, the respondent produced three witnesses and recorded his statement. In rebuttal, the appellant also produced three witnesses and got recorded his statement through attorney. After conclusion of the case and hearing the parties the trial Court accepted the application by means of order and decree dated 24 -9-2009 and directed the appellant to vacate the shop in question, hence this appeal. The learned counsel for the appellant stated that the trial Court has not properly appreciated the evidence and material available on record. According to him, the responde nt has failed to prove the personal bona fide use and occupation of his son. Similarly the respondent/applicant has not been able to prove the subletting of the shop in question. He stated that one Nehal Khan is occupying the shop in lieu of a partnership agreement, which does not come within the definition of subletting, therefore, no violation of the Rent Restriction Ordinance has been committed. According to him, the order and decree impugned are nullity in the eyes of law. On the other hand the learned counsel for the respondent stated that the respondent/applicant has successfully been able to prove his case. According to him, the son of the respondent is jobless and the shop in question is required for his personal bona fide use and occupation. He sta ted that the applicant/respondent has also succeeded in proving the subletting of the shop by the appellant to one Nehal Khan. I have heard the learned counsel for the parties and have perused the record. One of the ground of the applicant/respondent in h is application was the personal bona fide use and occupation of his son and other ground was that of subletting. The trial Court framed Issues Nos.2 and 3 respectively in this behalf and decided both the issues jointly in favour of the respondent. It is im portant to mention here that the respondent/applicant did not mention as to which of his son is jobless for whom the shop is required, because the name of the son has not been mentioned in the application nor the witnesses and the respondent/ applicant in their statements before the trial Court disclosed it. None of the son, for whom the shop is required, is fetal, because it will deprive the tenant from raising the objection on the bona fides of the landlord. Furthermore, according to the section 13(4) of the Ordinance, it is necessary for the person for whom the shop is required, to occupied it within a month of an eviction order. Since no proper person has been specified for the purpose of getting the possession of the shop, therefore, if an eviction order is passed, it could not be implemented for the reason that who will get the possession. Similarly, the alleged son for whom the shop in question was required, did not appear before the trial Court. Since the application was for the personal bona fide us e and occupation of the son of the applicant, therefore, his appearance before the court and recording his statement was necessary being the proper person to explain his requirement. Without recording the statement of the son for whom the shop is required, it is not possible for the landlord to prove the personal bona fide need of his son and also the requirement cannot be judged. The second ground as alleged in the application is that the shop, in question has been subletted. Surprisingly, the respondent/ applicant did not make the alleged sublessee as party to the application, nor has stated in his application as to whom the shop in question has been sublet. By not impleading the sublessee as a party to the application, the ground of subletting cannot be agitated nor it could be proved. The witnesses have though taken the name of one Nehal Khan as sublessee, but their statements do not confirm the contents of the application, as such, cannot be relied upon. Without prejudice to above, even otherwise, the record reflects that there is an agreement of partnership between the appellant and Nehal Khan, executed on 2nd of June, 2007. Nehal Khan further entered into franchise agreement with Pakistan Telecommunication Company Limited in respect of a Wireless Loca l Lope Service on 21st May, 2007, whereas, the present application has been filed in the year of 2009 with the allegation of subletting. The respondent has failed to rebut the partnership agreement arrived at between the appellant and Nehal Khan and has al so not been able to prove the tenancy between them. The witnesses of respondent admitted the fact that their statements were already reduced in to writing, brought before them by respondent/applicant and they signed it. In their cross -examination, the wit nesses further admitted that they did not record their statement before the oath commissioner. It reflects that whatever was written by the respondent/applicant, the witnesses owned it, therefore, in such view of the matter, the statements of the witnesses are hearsay evidence, which cannot be relied upon. The trial court while deciding the case, has failed to dilate upon the above stated fact and legal proposition, therefore he order and decree impugned amounts to an illegality and irregularity, as such, are not sustainable. Thus, in view of what has been stated and discussed hereinabove; I am inclined to accept the appeal and set aside the impugned order dated 24 -8-2009, passed by Senior Civil Judge/Rent Controller, Hub, resultantly, the eviction applica tion is hereby dismissed. H.B.T./67/Q Appeal accepted.