2017 C L C 347
[Balochistan]
Before Zaheer- ud-Din Kakar, J
SHAKEEL AHMED ----Appellant
Versus
ABDUL JALIL and others ----Respondents
F.A.O. No.48 of 2014, decided on 8th November, 2016.
(a) Balochistan Urban Rent Restriction Ordinance (VI of 1959) ---
----Ss. 13 & 11---Civil Procedure Code (V of 1908), S. 2 (2) ---Ejectment of tenant--- Bona fide
personal need of landlord---Scope ---Contention of tenant was that landlord had died during the
proceedings and ground of personal bona fide need was not availabl e to his legal heirs ---
Validity ---Decree in favour of landlord did not abate on his death and entitled the heirs to get the
possession of demised premises ---Once a right was accrued in favour of decree- holder, it would
automatically devolve upon his legal heirs even after his death and they had the right to defend
the decree and were entitled to contest the appeal ---Eviction petition contained an averment with
regard to the need of landlord for use of the demised premises for commercial purposes ---No
speci fic permission of Rent Controller, for conversion of residential property into non- residential
was required ---Plea that eviction petition with regard to residential premises for non -residential
purposes had been accepted would be deemed to be sufficient compliance of S.11 of Balochistan
Urban Rent Restriction Ordinance, 1959---Evidence produced by the landlord was not only
consistent but also in conformity with the contents of eviction petition ---Witnesses of landlord
were firm and were not shaken despite l engthy cross -examination ---If landlord failed to get the
possession of demised premises in the stipulated period or after getting the possession re -let the
same to someone else within a period provided by law then tenant had the right to recover the
posses sion of said premises ---Impugned judgment and decree passed by the Trial Court were just
and proper ---Tenant had failed to point out any illegality or irregularity in the impugned order ---
Tenant was granted two months' time to vacate the premises and hando ver the possession to the
landlord---Appeal was dismissed in circumstances.
K.H. Hiramanek v. Shafqat Aslam 1997 MLD 1800; Muhammad Shoaib Alam and
others v. Muhammad Iqbal 2000 SCMR 903 and 2004 MLD 587 rel.
(b) Civil Procedure Code (V of 1908) ---
----S . 2(2) ---"Decree" ---Meaning ---Decree was a declaration of right of a party which entitled
him to get such right.
Mudasar Nadeem for Appellant.
Muhammad Ali for Respondent.
Date of hearing: 28th October, 2016.
JUDGMENT
ZAHEER -UD-DIN KAKAR, J. -- This fi rst appeal is directed against the Judgment and
decree dated 24th April, 2014 "the impugned judgment and decree", passed by the learned Civil
Judge -VIII-cum-Rent Controller, Quetta "the trial Court", whereby the eviction application filed
by the respondent /applicant was accepted and the appellant was directed to handover the vacant
possession of the house to the respondent within a period of two months with further direction to
pay the payable rent amount. During pendency of the appeal, respondent/applicant Abdul Majeed
died and the present respondents have succeeded him in the case.
2. Precisely stated facts of the case are that the predecessor of the respondents filed the
eviction application No.7/2013 against the appellant on the ground of personal bona f ide need
and occupation in respect of the house in question constructed over the land bearing Khasra
Nos.54, 55, 56 and 57, Ward No.48, Tappa Urban, Tehsil and District Quetta, bounded in para -1
of the eviction application. According to para 3 of the evict ion application, the applicant has also
filed eviction applications against the four shops and three houses and he after getting vacant
possession remove the intervening walls between the premises and made it a big shop for
stocking construction material. 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:
ISSUES
22.04.2014
i. Whether the eviction application of the landlord/owner is not maintainable in the
light of Section 11 of the Urban Restriction Ordinance, 1959, wherein the landlord/owner
shall not convert a residential building into non- residential building without permission in
writing of the controller?
ii. Whether the tenement/shop is required to the landlord/owner for his personal
bona fide use?
iii. Whether the applicant/landlord is entitled for the relief claimed for?
iv. Relief?
3. In support of his claim, the predecessor of the respondents himself appeared before the
trial court and submitted his affidavit as well as the affidavits of his witnesses namely, Shah
Muhammad and Arbab Abdul Malik, who appeared before the trial Court as A ws.1 and 2,
respectively, and the trial Court afforded full opportunity to the counsel for the appellant to
cross -examine them. On the other hand, the appellant/respondent submitted his affidavit along
with affidavits of his five witnesses, namely, Abdul M ajeed, Muhammad Ishaq, Asghar Abbas,
Haji Allah Yar and Imtiaz Muhammad, who appeared before the trial Court as RWs.1 to 5
respectively. RW -1 Abdul Majeed and RW -5 Imtiaz Muhammad deposed that the property in
question was rented out to the respondent/appel lant in dilapidated condition in the year 1962 and
he spent Rs.7,00,000/ - over the house in question but the applicant did not pay a single penny to
him. RW -2 Muhammad Ishaq, representative of SSGC, RW -3 Asghar Abbas, representative of
PTCL and RW -4 Allah Yar, representative of Qesco produced Utility Bills as Ex -R/1, Ex -R/2
and Ex -R/3, which are in the names of Naseer -ud-din, Muhammad Nasir and Sher Muhammad,
respectively. Lastly the respondent/appellant appeared before the Court and reiterated the
contents of reply to the eviction application, but he has failed to produce a single
document/receipt which show that he had spent Rs.700,000/ - upon the house in question. The
trial Court also afforded full opportunity to the counsel for respondents to cross -exami ne them.
After hearing the arguments, the learned trial Court issued ejectment order as mentioned above,
hence this appeal.
4. Learned counsel for the appellant stated that since the respondent/ applicant has died
during pendency of the appeal, therefore, the ground of personal bona fide use is not available to
the newly added respondents/legal heirs. According to the learned counsel, they cannot get the
advantage of the impugned judgment nor can defend the same, therefore, he requested for setting
aside th e same. On merits as well, the learned counsel argued that father of the respondents had
failed to prove his personal bona fide use and occupation. It is further contended that till date no
permission for conversion of premises from residential to commercial has been obtained by the
respondents, saying that this permission can be obtained later on is very strange and highly un-
call for even otherwise, the mala fide is apparent from the material available on record.
5. Learned counsel for the respondents opposed the contentions and stated that upon the
death of the applicant, the right of his legal heirs to defend the order and decree does not abate.
According to him, the right has been granted to the deceased applicant, which has devolved upon
his legal heir s, therefore, they are entitled to get the possession of the house and the objection so
raised by the learned counsel for the appellant is not sustainable. He further stated that the
predecessor of the respondents was able to prove his case through reliabl e witnesses and the
appellant has failed to point out any mala fide on the part of the landlord. The evidence has
properly been considered by the trial Court, while accepting the application, hence, no illegality
has been committed.
6. I have heard the lea rned counsel for the parties and have perused the record. Considering
the contention of the learned counsel for the appellant regarding the maintainability of the
application, it is to be noted that predecessor of the respondents succeeded in his applicati on on
the ground of personal bona fide need and occupation. The trial Court ordered the appellant to
vacate the house in favour of the deceased/ landlord through a decree. The decree has been
defined in Section 2(2) of the C.P.C., which means the formal ex pression 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 deceased and steps in to his/her/their shoes.
A decree is a declaration of 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 possession of the disputed
property, therefore, upon his death, the decree does not abate. Once a right is accrue d in favour
of the 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.
7. The next question relates to interpretation/application of Section 11 of the Balochistan
Urban Rent Restriction Ordinance, 1959 "the Ordinance". Learned counsel for the appellant has
argued that prior permission of the Rent Controller for conversion of the residential property in
to a commercial one was necessary and since t his permission had not been obtained by the
predecessor of the respondents, the eviction application must fail. I am afraid this is not so. The
eviction application contained an averment about the need of the respondents for use of the
disputed premises for commercial purposes. No specific permission for conversion of residential
property into non- residential was required. The plea that eviction application filed by the
landlord in respect of residential premises for non- residential purposes has been accept ed would
be deemed to be sufficient compliance of Section 11 of the Ordinance. See K.H. Hiramanek v.
Shafqat Aslam (1997 MLD 1800), in which it was held that:
"No specific permission for conversion of residential property into non -residential was
required and the plea that ejectment petition filed by the landladies in respect of
residential premises for non -residential purpose has been accepted would be deemed to
be sufficient compliance of the Section 11 of the Ordinance.
Also see Mst. Zubaida Sultana v. D r. Ikhlaq Ahmed and others (1992 ALD 164 (2)
(Lahore)), + Sooba v. Siraj Din (PLD 1977 Lahore 1263). This objection being devoid of
force is over ruled."
8. Admittedly, the predecessor of the respondents filed eviction application on the ground of
personal bona fide need. In support of his claim, he produced two witnesses and has also
recorded his own statement. The evidence produced by the predecessor of the respondents was
not only consistent, but also in conformity with the contents of the application. T he witnesses of
the landlord were firm 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 house in the stipulated period or after 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 house. It is settled principle of law that on the ground of personal
bona fide need, the case of the landlord stands proved if (i) his statement, in the pleading is
consistent with his evidence (ii) his testimony has not been rebutted in the evidence of the tenant,
which saying so, in this regard I am guided- by the case law r eported in case of Muhammad
Shoaib Alam and others v. Muhammad Iqbal (2000 SCMR 903), in which it has been held that:
"That statement of landlord on oath, if consistent with the application for ejectment and
not shaken in cross -examination or disproved in rebuttal was sufficient to prove that such
requirement of landlord was bona fide." I am also guided by case laws reported in 1984
CLC 2427 + 1993 CLC 2380 + 1989 CLC 247."
9. In the light of above scale of law laid down by the superior Courts, I have caref ully
examined the pleadings and evidence of the parties. Although, a lengthy cross -examination was
conducted by the learned counsel for the appellant, yet applicant stood test in his own version
and his testimony was not shaken. I also rely upon 2004 MLD 587, wherein it has been held that;
"Bona fide need of landlord mere statement of the landlord to the effect that he needed
premises in question for his personal need, would be sufficient proof of personal need of
landlord."
10. The trial Court, after asses sment of the facts, circumstances and the evidence available on
record, has rightly accepted the application; therefore, the judgment 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.
11. Thus, in view of what has been stated and discussed hereinabove, the appeal is
accordingly dismissed. However, enabling the appellant, to shift his household articles from the
house in question to s ome other premises, he is granted two months time from today to vacate
and handover the vacant possession to the respondents.
ZC/79/Bal 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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