2012 C L C 1577
[Balochistan]
Before Jam al Khan Mandokhail, J
DATSUN MOTORS through Proprietor ----Appellant
Versus
Syed AIN ULLAH AGHA ----Respondent
F.A.O. No.61 of 2009, decided on 22nd June, 2012.
(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959) ---
----S. 15 ---Civil Procedure Code (V of 1908) S.2(2) ---Ejectment petition of tenant on ground
of bona fide personal need of landlord was accepted ---"Decree" ---Definition ---Abatement ---
Scope ---Contention of the tenant (appellant) was that since the landlord had died after the
order of the Rent Controller; his legal heirs could not get the benefit of the impugned order of
the Rent Controller ---Validity ---Deceased landlord had succeeded in the ejectment petition
on ground of bona fide personal need and the Trial Court/Rent Con troller had ordered the
tenant to vacate the premises ---Decree had been defined in S.2(2) of the C.P.C. as a formal
expression of adjudication, determining the rights of the parties to the suit etc. ---Word
"party(s)" shall include his/their legal represent ative(s), who represent(s) the estate of the
deceased and stepped into his/her/their shoes ---Decree was a declaration of a right of a party,
which entitled it to get such a right ---Decree in favour of the landlord, entitled him to get
possession of the dis puted property, therefore, upon his death, the decree did not abate ---
Once a right was accrued in favour of a decree -holder, after his death, it automatically
devolved upon his legal heirs and they had the right to defend the decree and were entitled to
contest the appeal ---Appeal was dismissed.
(b) Abatement ---
----Principle ---Decree in favour of the landlord, entitled him to get possession of the disputed
property, therefore, upon his death, the decree did not abate ---Once a right was accrued in
favour of a decree -holder, after his death, it automatically devolved upon his legal heirs and
they had the right to defend the decree and were entitled to contest the appeal.
Muhammad Mehmood Khokar for Appellant.
Mujeeb Ahmed Hashmi for Respondent.
Dated of hearing: 18th May, 2012.
JUDGMENT
JAMAL KHAN MANDOKHAIL, J. --- Briefly stated facts of the case are that the
respondent filed the eviction application against the appellant on the ground of personal bona
fide use and occupation in respect of th e shop constructed over the land bearing Khewat
No.143, Khatooni No.121, Khasra No.32, measuring 679 Sq:Ft: situated at Jinnah Road,
Mohal -o-Mouza Ward No.17, Tappa Urban, Tehsil and District Quetta. The appellant filed
his reply to the application raising legal objections regarding maintainability of the
application and also contested it on merits. Out of the pleadings, the trial Court framed the
following issues: ---
(1) Whether respondent has paid Rs.45000/ - ("Rupees Forty -Five Thousand") as Pagri to
the previous owner of shop in question?
(2) Whether the shop in question is required to the applicant in good faith for bona fide
use and occupation?
(3.) Whether applicant is entitled for relief claimed for?
ADDITIONAL ISSUES:
A. Whether the applica tion of the applicant is not maintainable in view of preliminary
legal objection C raised by the respondent in rejoinder?
The respondent/applicant produced three witnesses and recorded his statement. In reply, the
appellant produced five witnesses and re corded his statement through attorney. The Rent
Controller, after conclusion of the case accepted the application by means of the judgment
and decree dated 18th June, 2009, hence this appeal.
2. Learned counsel for the appellant stated that since the res pondent/applicant has died
during the pendency of the appeal, therefore, the ground of personal bona fide use is not
available to the newly -added respondent(s)/legal heir(s). According to the learned counsel,
they cannot get the advantage of the impugned j udgment and decree, nor can defend the
same, therefore, he requested for setting aside of the same. On merits as well, the learned
counsel argued that father of the respondent had failed to prove his personal bona fide use
and occupation, as he was already doing a business. The learned counsel further states that
earlier too, the predecessor of the deceased applicant filed an eviction application against the
appellant, but failed to succeed, where after, the predecessor of the respondents entered into a
rent agreement with the appellant for a period of five years and after its expiry, the present
application has been filed with mala fide intention. The learned counsel lastly argued that the
appellant acquired the shop in question from its previous owner name ly Siddiqui after
payment of Rs.45000/ - as goodwill (Pagri), therefore, the predecessor of the respondents
being the subsequent purchaser/owner of the property in question are bound by the
commitment of their previous owner, as such, after receiv ing the goodwill, the eviction
application is not maintainable.
3. Learned counsel for the respondent opposed the contention and stated that upon the
death of the applicant, the right of his legal heirs to defend the order and decree does not
abate. Acco rding to him, the right has been granted to the deceased applicant, which has
devolved upon his legal heirs, therefore, they are entitled to get the possession of the shop
and the objection so raised by the learned counsel for the applicant is not sustaina ble. He
further stated that the predecessor of the respondents was able to prove his case through a
reliable witness and the appellant has failed to point out mala fide on the part of the landlord.
The evidence has properly been considered by the trial Cou rt, while accepting the
application, hence, no illegality has been committed.
4. I have heard the learned counsel for the parties and have perused the record.
Considering the contention of the learned counsel for the appellant regarding the
maintainabili ty of the application, it is to be noted that the predecessor of the respondent
succeeded in his application on the ground of the personal bona fide use and occupation. The
trial Court ordered the appellant to vacate the shop in favour of the deceased land lord through
a decree. The decree has been defined in section 2(2) of the C.P.C., which means the formal
expression of adjudication, determining the rights of the parties to the suit, etc. the word
"party(s)' shall include his/their legal representative(s) , who represent(s) the estate of the
deceased and steps into his/her/their shoes. A decree is a declaration of a right of a party,
which entitles him to get such right. In an eviction proceeding, a decree in favour of an
applicant entitles him to get the p ossession of the disputed property, therefore, upon his
death, the decree does not abate. Once a right is accrued in favour of a decree -holder, after his
death, it automatically devolves upon his legal heirs and they have the right to defend the
decree and are entitled to contest the appeal.
5. Now, adverting to the merits of the case, the appellant, in his rejoinder, raised an
objection regarding the maintainability of the application, alleging that an amount of
Rs.45000/ - was paid by him as Pagri to the previous owners of the shop, on which, the trial
Court framed issue No.1. Pagri (Good Will) has no value at all, as it is not a legal transaction,
therefore, the eviction application on this score cannot fail. Even otherwise, according to the
appellant, h e paid the amount to its previous owners, therefore, it may be a matter between
him and the previous owner, with which, the respondents or their predecessor have no
concern, therefore, the objection has no force in it and the Controller has rightly resolve d this
issue.
6. Upon an objection of the appellant, the issue No.2 was framed on the bona fide
regarding use and occupation of the predecessor of the respondents. The appellant did not
produce any evidence to substantiate his contention nor proved the m ala fide on the part of
the predecessor of the respondents. To the contrary, the evidence produced by predecessor of
the respondents was not only consistent, but also in conformity with the contents of the
application. The witnesses of the landlord were fi rm and were not shaken despite lengthy
cross -examination. Even otherwise, the Ordinance has provided protection to a tenant under
section 13 subsection (4), therefore, if the respondents fail to get the possession of the shop in
the stipulated period or af ter getting the possession, re -let it to someone else within a period
provided by law, the appellant has the right to recover the possession of the shop. The trial
Court, after proper appraisal of the evidence and material available on record, came to a ju st
and right conclusion while deciding such issue.
7. The issue No.3 was additionally framed on the Preliminary Objection "C" of the
rejoinder filed by the appellant, stating therein that pursuant to the agreement dated 19th
September, 2001, the eviction application is not maintainable. Since the learned counsel for
the appellant did not press this objection, therefore, the trial Court overruled it accordingly.
8. The trial Court, after assessment of the facts, circumstances and the evidence
available o n record, has rightly accepted the application; therefore, the order and decree
impugned are just and proper. The learned counsel for the appellant has failed to point out
any illegality or irregularity warranting this Court to interfere in it.
Thus, in view of what has been stated and discussed hereinabove, the appeal is accordingly
dismissed.
KMZ/62/Q Appeal dismissed.This 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,
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