2020 C L C 526
[Balochistan]
Before Rozi Khan Barrech, J
MUHAMMAD NADEEM and others ----Appellants
Versus
ANJUMAN- E-NASIR- UL-AZA through General Secretary ----Respondent
F.A.O. No. 96 of 2018, decided on 24th September, 2019.
Balochistan Urban Rent Restriction Ordinance (VI of 1959) ---
----Ss. 13 & 14--- Constitution of Pakistan, Arts. 23 & 24--- Eviction petition on behalf of
attorney ---Maintainability ---Bona fide personal need of landlord Right of Property--- Scope --
-Earlier ejectment petition having been dismissed for non- prosecution--- Effect ---Payment of
Pagri ---Effect ---Eviction petition filed on behalf of landlord was accepted--- Contention of
tenant was that earlier eviction petition filed on behalf of landlord had been dismissed---
Validity ---If e arlier eviction petition had been decided on merits then Rent Controller should
reject the subsequent ejectment petition summarily, however, if earlier ejectment petition was decided on technical ground or was dismissed for non- prosecution without deciding the
matter on merits then there would be no bar to file a fresh application on the same ground---
Landlord earlier filed ejectment petition and same was dismissed for non -prosecution ---
Landlord had bona fide personal need of demised premises ---Where statem ent of landlord on
oath was consistent with the averments made in the ejectment application then same was sufficient for acceptance of eviction petition ---Payment of any amount on account of pagri
did not create tenancy in perpetuity and same could not ope rate as bar against landlord to
seek eviction---Attorney had filed present eviction petition under the authority given by the landlord--- Relationship of landlord and tenant existed between the parties ---Right of property
being a fundamental right had been protected ---Right of ownership was superior to the right
of tenancy---Tenant was directed to vacate the demised premises within a period of two months subject to payment of monthly rent ---Appeal was dismissed, in circumstances.
Allah Rakha v. Muhammad Shafi 1978 SCMR 437; Mursleen v. Ghulam Sarwar and
others PLD 1987 Quetta 8; Ghulam Muhammad and another v. Maqsood Hussain and 3 others 1984 SCMR 1142; Juma Sher v. Sabz Ali 1997 SCMR 1062; Muhammad Shoaib Alam and others v Muhammad Iqbal and others 2000 SC MR 903 and Azizur Rehman v.
Pervaiz Shah and others 1997 SCMR 1879 rel.
Mian Badar Muneer and Muhammad Usman Yousafzai for Appellants.
Mumtaz Hussain Baqiri for Respondents.
Date of hearing: 30th August, 2019.
JUDGMENT
ROZI KHAN BARRECH, J. ---Through t his appeal filed under Section 15 of
Balochistan Urban Rent Restriction Ordinance, 1959 the appellants impugn their ejectment
from shop Nos. 13, 14 and 15 ("shops in dispute") situated at Imam Bargah Nasir -ul-Aza
Usman Road/Mecongy Road Quetta by judgment dated 14th November, 2018 ("impugned judgment") passed by learned Civil Judge -VIII/Rent Controller Quetta ("trial court") in
Eviction Application No.06 of 2016.
2. Facts necessary for disposal of this appeal are that the respondent/applicant had filed
Evic tion Application under Section 13 of the Ordinance for eviction against the appellants,
stating therein that applicant is landlord/owner of twenty five shops situated in front of
Nasir -ul-Aza Imam Bargah at Mecongy Road Quetta, six shops at Mecongi Road and
seventeen shops at Usman Road Quetta. The applicant was utilizing shop Nos. 12 and 19 as a
gate and washroom of Imam Bargah situated at Usman Road and having possession of shops Nos. 18 and 20, whereas all the remaining shops were leased out to different tenants. The
appellants were tenants of the shops in dispute at the monthly rent of Rs.1500/ - each payable
by 10th of every month. It was the case of applicant that he intends to include all the shops in the Imam Bargah by closing the doors of shops on ma in road permanently and to demolish its
rear walls towards the Imam Bargah to utilize the same for purpose of library, Zawar Khana, Store, place for residence of security guards and employees of Imam Bargah. It was further averred in the application that a pplicant/respondent approached the appellants for getting the
vacating the shops in dispute but the appellants lingered on the matter and lastly refused to do the needful, which prompted the respondent/applicant to file the aforesaid eviction
application.
In rebuttal the appellants contested the application by way of filing rejoinder, denying
the respondent's claim on legal as well as factual grounds.
3. Out of the pleadings of the parties the trial court framed the following issues:
"i) Whether cause of action has accrued to the applicant against the respondent?
ii) Whether in view of sections 18 and 19 Rent Restriction Ordinance, the application is not maintainable?
iii) Whether the application has been filed without fulfilling the provisions of section 92, C.P.C. and the application is liable to be rejected?
iv) Whether prior to filing instant application, applicant had filed another eviction application which was dismissed?
v) Whether the applicant in good faith intends to include shops in quest ion along with
other shops into Imam Bargah permanently and for the purpose of library, zawar khana, store and place for residence of employee etc?
vi) Whether on contact by the applicant for vacate possession of the shops in question,
the respondent linge red the matter on different pretexts and lastly refused?
vii) Whether applicant is entitled to the relief claimed for?
viii) Relief?"
4. The respondent/applicant produced four witnesses and got recorded their statements
through attorney Syed Muhammad Zarif , General Secretary Anjuman Nasir -ul-Aza.
5. In rebuttal the appellants produced two witnesses and got recorded their statements
through attorney Muhammad Nadeem (appellant No.1). The trial court vide impugned
judgment dated 14.11.2018 allowed the evictio n application and directed the appellants to
handover vacant possession of the shops in dispute to the applicant/respondent within thirty
days. Hence this appeal.
6. Arguments pro and contra heard. Material made available on record perused in the
light of relevant provisions of law.
7. It transpires that prior to filing the instant eviction application, earlier the
applicant/respondent had filed another eviction application bearing No. 11/2018 before Civil
Judge -V/Rent Controller and same was dismissed on 2 0.10.2009 for non- prosecution. The
only question requiring resolution is whether the order passed on 20.10.2009 in Eviction Application No.11 of 2008 was a final determination of dispute between the parties? In the Balochistan Urban Rent Restriction Ordina nce, 1959 ("Ordinance") Section 14 deals such
like question. For better appreciation of the provision ibid it is reproduced as under:
"The Controller shall summarily reject any application under subsection (2) or under subsection (3) of S.13 which raises substantially the same issues as have been finally
decided in a former proceeding under this Ordinance."
A reading of this section makes it clear that an ejectment application on an issue
would only be barred if the application on the same issue had earli er been decided on merit
between the parties.
8. Under subsection 13(2) of the Ordinance the grounds of ejectment of tenant are
mentioned and in subsection 13(3) the grounds available to landlord for filing the ejectment petition are mentioned, which revea ls that if earlier ejectment petition was decided on the
grounds mentioned in section 13(2) and (3) finally then under section 14 of the Ordinance the Rent Controller will reject the petition summarily. Section 14 clearly provides that an application raisi ng substantially the same issue which has been finally decided in a former
proceeding shall be rejected. This provision contemplates decision on merits. Where the order of dismissal is on technical ground or for non- prosecution, without deciding the matter
on merits it cannot be a bar to filing a fresh application on the same ground. In the case in hand the respondent/landlord admittedly filed the Eviction Application No. 11 of 2008 before the Civil Judge/Rent Controller and the same was dismissed on 20.10.2009 for non-prosecution. In the earlier application neither the Rent Controller framed issues nor decided the same on merits. Reliance in this regard is placed upon Allah Rakha v. Muhammad Shafi
(1978 SCMR 437).
9. The issue of section 14 read with sectio n 11, C.P.C. came up before this court in a
case titled Mursleen v. Ghulam Sarwar and others (PLD 1987 Quetta 8). The issue in this
case was that a rent petition was decided on the basis of compromise between the parties and it was held as under: ---
"A de cision arrived at by a competent authority after full inquiry on matters in issue
between the parties should ordinarily be not allowed to be re -agitated between the
same parties. This is the principle of res judicata. Such a decision must be arrived at by a competent authority and not through a private settlement, which of course would
not attract the principles of res judicata. In case in hand, an order was passed by the Controller on the basis of a compromise. The moot question, therefore, is whether such order has finally disposed of the issues between the parties. The previous
application (62/69) was filed by four of the landlords (including Ghulam Sarwar) for the personal use and occupation of the shop for one of them (Muhammad Umar). The issue, therefo re, was whether Muhammad Umer required the shop in good faith for
his personal use and occupation. The compromise arrived at did not correspond to the issues. The settlement so arrived had no reference at all to Muhammad Umar or his
personal needs. It was in respect of re- construction. The learned Controller ordered
eviction in terms of the compromise and not conducting any inquiry himself. This
clearly indicates that he did not finally 'decide' the issues which arose out of pleadings of the parties."
18. An issue regarding the dismissal of ejectment petition on the basis of non-production was dilated upon by his lordship Mr. Justice Salim Akhtar, as then he was
of Sindh High Court opined as under: ---
Bar of second eviction application of section 14 of Rent Restriction Ordinance, 1959 is not attracted where first application is dismissed on technical ground or for non-prosecution without deciding matter on merits."
19. In view of the above this petition fails and is dismissed. As it is a matter of ren t
and the petition was filed in 2002, the same is lingering on without any final disposal, the learned Rent Controller is directed to decide the rent petition within two months on receipt of certified copy of this judgment."
The next question is with regard to construction and demolition of the shops including
three shops in possession of the appellants. In support of their claim the respondent/landlord also produced before the trial court the requisite permission of construction and building plans app roved by the competent authority i.e. Ex.AW/2- A, which was produced by Jan
Muhammad Junior Clerk, representative of Metropolitan Corporation Quetta. The shops in dispute are part and portion of the premises of Imam Bargah. The respondent/landlord requires the shops in dispute in order to run its religious affairs, holding Mehfil and Majlis
and for the purpose of Zaireen, security guard's residence and Zawar Khana.
According to evidence available on record, accommodation and space already
available with res pondent/landlord is in adequate and is not sufficient to cater for the said
purpose. Similarly, in support of its claim for personal bona fide need of the building after its
reconstruction, attorney of respondent/landlord Syed Muhammad Zarif appeared in the witness box in his capacity as attorney of the Imam Bargah and deposed in unequivocal terms about the need of shops in dispute for their personal bona fide needs. Such statement of respondent on oath of attorney of the respondent not only remained consis tent with the
assertions made in the eviction application but also remained unshattered in the cross -
examination. However, to their misfortune, the fact that two others shops are lying vacant in the same building, which were not let out by the respondent s ince long and as such should be
taken as positive factor in favour of the appellants to prove their bona fide, and cannot be considered as negative factor to conclude that the eviction application on the ground of personal need was based on mala fides.
It is established that applicant/respondent produced approved site plan and building
permit which is a strong corroborative piece of evidence in support of its claim for personal bona fide requirements. In the case of Ghulam Muhammad and another v. Maqsood H ussain
and 3 others (1984 SCMR 1142) the Hon'ble Supreme Court observed as under:
"…… landlords, having obtained the necessary sanction for the erection of a new building ……. were under no further obligation to prove further the premises were
reasonably and in good faith required by them for the said purpose, and were,
therefore, entitled under the law to evict the tenant...."
It has also come on record that two vacant shops are already in exclusive possession
of the respondent/landlord. In this factual background, it is in- conceivable and hard to
believe that the eviction application filed by the petitioner on the ground of reconstruction was based on mala fides as they have to demolish not only the three shops in dispute which
are in possession of the appellants but also other portions of the building including vacant shops in possession of the landlord/respondent. The applicant/landlord also filed eviction application against nine other tenants, who are in possession of the shops. The availability of the other vacant shops might have been relevant factors in case during pendency of this
eviction proceedings the respondent had let out these shops to any third party, which admittedly is not the position in this case. In so far as the plea of personal bona f ide need of
the landlord/applicant is concerned, the respondent/applicant also produced AW -1 Manzoor
Ahmed, AW -2 Syed Sardar Hassan and Jaffar Hussain AW- 4, who corroborated the
statement of attorney of the landlord namely Syed Muhammad Zarif as well as th e ground
taken by the applicant/landlord in the application. The respondent/landlord in my view adduced cogent, correct and worthy of credence evidence to substantiate their version. Attorney for the respondent/applicant Syed Muhammad Zarif and AWs explained their genuine bona fide and personal need in a simple, straightforward and convincing manner. They stood firm to the test of cross -examination and nothing beneficiary could be extracted
in spite of numerous searching questions.
10. It is well- settled by now that where the statement of landlord on oath was quite
consistent with his averment made in the ejectment applications, neither his statement was shaken nor anything was brought in evidence to contradict the statement that would be considered sufficie nt for acceptance of the ejectment application. In this regard we are
fortified by the dictum laid down in case titled Juma Sher v. Sabz Ali 1997 SCMR 1062
wherein it was held as follows:
"Sole testimony of the landlord is sufficient to establish his pers onal bona fide need of
premises. Where the statement of landlord on oath was quite consistent with his
averments made in the ejectment application and neither his statement was shaken nor anything was brought in evidence to contradict his statement and tenant had not even stepped in the witness -box to controvert the testimony of the landlord. Rent
Controller was fully justified in accepting the evidence of the landlord and ordering eviction of the tenant."
Reliance is also placed in the case titled as Muhammad Shoaib Alam and others v.
Muhammad Iqbal and others (2000 SCMR 903) wherein it was held by the Hon'ble Supreme Court as under:
"That statement of landlord on oath, if consistent with the application for ejectment and not shaken in cross -examination o r disproved in rebuttal is sufficient to prove that
requirement of landlord was bona fide."
11. The next controversy between the parties is in respect of advance and security,
goodwill amount and Pagri etc. The appellants claim that a huge amount of Pagri was given at the time of renting the shops in dispute i.e. Rs.110, 000/ - and Rs.75,000/ -. The terms and
conditions for a shop on Pagri are different than that of ordinary rent. It is well settled that payment of any amount on account of Pagri does not crea te tenancy in perpetuity and the
same cannot operate as bar against the landlord to seek eviction of the tenant from the premises on any ground provided under section 13 of Urban Rent Restriction Ordinance, 1959. Reliance is placed on the case of Azizur Re hman v. Pervaiz Shah and others (1997
SCMR 1879). Similar view was taken in the case titled as Mukhtiar Hussain v. Muhammad Ayub and four others by this court and it was held that:
"... ...Besides, it is now well settled law that payment of any amount on account of
Pagri does not create tenancy in perpetuity and the same cannot operate as bar against the landlord to seek eviction of the tenant from the premises on any ground provided under section 13 of Urban Rent Restriction Ordinance....
"Having regard to the evidence referred to hereinabove... I am of the opinion that payment of any amount if made by the tenant to the previous owner is not to affect the maintainability of eviction application on the grounds provided under section 13 of the Balochistan U rban Rent Restriction Ordinance. However, the tenant may
approach the competent court of law for recovery of the amount if law so permits."
12. For the sake of argument if it is presumed that the tenants had paid advance and
security, goodwill amount and P agri to the landlord, then the tenants may approach the
competent court of law for recovery of the amount, if the law so permits but there is hardly any doubt that the concept of Pagri is contrary to public policy, therefore, on the settled principles, any supra -contractual arrangement which negates tenancy would not affect
maintainability of eviction proceedings.
13. It is admitted fact that respondent/landlord is a registered Anjuman, under the
Societies Registration Act, 1860. The attorney of the landlor d namely Syed Muhammad Zarif
is the General Secretary of the landlord, who was specifically empowered and nominated on
official letter head of Anjuman -e-Nasir -ul-Aza to file the eviction application and that letter
was also enclosed having No. ANA/786/110/ 92, so the authority letter in the course of
business of Anjuman bears sanctity in the eyes of law. The attorney has filed eviction
application under the authority given by the landlord so the relationship of the tenant and
landlord does not suffer from any infirmity while filing the eviction application. Even
otherwise the relationship between tenant and landlord is not disputed by the appellants and they are paying rent to the Imam Bargah.
14. I am of the considered view that under the provisions of Artic les 23 and 24 of the
Constitution of Islamic Republic of Pakistan, 1973, the right of property being a fundamental right is protected. Admittedly, the right of ownership is superior to the right of tenancy. Thus, the appellants, being inferior of status re garding the utilization of shops in question,
cannot determine the sufficiency or insufficiency. The findings of the Rent Controller regarding personal requirement of the respondent are based on elaborate, careful and correct appraisal of evidence and do n ot suffer from any misreading of the evidence.
In view of what has been discussed above, this appeal has no merits and the same is
dismissed. However, the appellants are directed to vacate the shops in question within a period of two (02) months from the date of pronouncement of this order, subject to payment
of monthly rent.
ZC/116/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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