2021 C L C 708
[Balochistan]
Before Rozi Khan Barrech, J
Syed HABIBULLAH ----Appellant
Versus
Syed ABDUL KHABEER ----Respondent
F.A.O. No.53 of 2018, decided on 3rd April, 2020.
(a) Balochistan Urban Rent Restriction Ordinance (VI of 1959) ---
----S.13 ---Eviction petition ---Bona fide personal need of landlord---Scope ---Tenant
challenged order passed by Rent Controller whereby he was directed to hand over vacant
possession of the demised premises ---Validity ---Burden to prove that need of landlord was
bona fide rather than mala fide was on the landlord---Landlord had tried to eject 22 tenants simultaneously on the ground of personal bona fide use ---Landlord had not obtained
permission from Municipal Committee for re -construction or for alteration i n the building---
Landlord's brothers could not start business in 22 shops which were admittedly separate units ---Landlord's brothers were admittedly independent, they had settled their business
abroad and rarely visit Pakistan ---Names of the brothers, for whom the shops were required,
were not mentioned in the eviction application---Property was mutated in the name of landlord's father but he had not filed the eviction application--- Appeal was accepted,
impugned judgment was set aside and the eviction appli cation was dismissed, in
circumstances.
Syed Abdul Rauf v. Abdul Sattar 1997 SCMR 1169 and Mahmood Khan v. Nasima
Khatoon 1982 CLC 1807 ref.
Ram Dass v. Ishwar Chander and others AIR 1988 SC 1422 and Siddalingamma and
another v. Mamtha Shenoy AIR 2001 S C 2896 rel.
(b) Balochistan Urban Rent Restriction Ordinance (VI of 1959) ---
----S.13 ---Eviction petition ---Bona fide personal need of landlord---Scope ---Landlord has a
superior right of possession and use of his property as against the tenant, but it has equally been settled that the tenant may not be deprived of his legal business and may not be shunted out from the said premises on mere assertion of the landlord.
(c) Balochistan Urban Rent Restriction Ordinance (VI of 1959) ---
---S. 13---Eviction petiti on---Good faith ---Scope ---Term 'good faith' is prime and essential
ingredient of ejectment of the tenant---Mala fide intention of landlord for ejectment on the
ground of personal need can only be ascertained if it is proved that landlord in fact is not 'needy' rather is 'greedy' and he only desires to enhance the rent according to his own will
and wants to rent it out to another person on much higher rent.
(d) Balochistan Urban Rent Restriction Ordinance (VI of 1959) ---
----S.13 ---Eviction petition ---Scope ---Tenant cannot be evicted on mere wish, convenience,
whim and fancy of the landlord.
Abdullah and others v. Yahya Bakhtiar PLD 2001 SC 158 rel.
Adnan Ejaz for Appellant.
Gul Hassan Tareen for Respondent.
Date of hearing: 30th March, 2020.
JUDGMENT
ROZI KHAN BARRECH, J. ----Through this judgment I intend to dispose of F.A.O
No. 53 of 2018 filed under section 15 of Balochistan Urban Rent Restriction Ordinance -VI of
1959 (hereinafter "Rent Restriction Ordinance, 1959") against judgment dated 1 5th August
2018 (hereinafter "the impugned judgment") passed by learned Senior Civil Judge -I,
Quetta/Rent Controller (hereinafter "the Rent Controller") whereby the eviction application
filed by the respondent was accepted with the direction to appellant t o hand over vacant
possession of Shop No. 21, Bilal Market, New Bus Adda, Sirki Road, Quetta (hereinafter "shop in question") to the respondent within thirty (30) days of passing of impugned judgment.
2. Facts relevant for disposal of instant appeal are th at Eviction Application No. 08 of
2015 was filed by Syed Abdul Kabeer (Respondent) seeking eviction of shop in question situated at Bilal Market, New Bus Adda, Sirki Road Quetta, with the averments that applicant's father and his partner namely Syed Siraj -ud-Din Agha rented out (45) shops to
different tenants Later on, the shops were divided between the above referred two partners and eventually 23 shops came in the share of applicant's father. All the tenants were duly informed about the division of shops. According to applicant he received rents up -to
February, 2012 whereafter the tenant committed default in payment of rent, as such, he proved himself as bad pay master. Furthermore, eviction was also sought on the ground of personal bona fide use and occupation of applicant and his brothers for running their own business.
3. The respondent/tenant contested the application by filing rejoinder to the same,
wherein besides raising certain preliminary objections, he also countered the claim of applicant/landlor d. It was asserted by respondent/tenant that in fact one Siraj -ud-Din Agha
mortgaged the shop who received a handsome amount for the purpose; that besides payment
of mortgage -money the appellant/tenant has also been regularly paying rents to Siraj -ud-Din
Agha without any default right from the date of execution of agreement. According to
appellant/tenant Siraj -ud-Din Agha had no authority to sell the shop to anyone else because
as per the terms of agreements the appellant/tenant had a preferential right to purchase the
shop in question.
4. The learned Judicial Magistrate -VII, Quetta/Rent Controller out of the pleading of
parties framed following issues for determination:
1. Whether this court has no jurisdiction to adjudicate the present matter?
2. Whether a pplication is bad for non- joinder of necessary party?
3. Whether relationship of landlord and tenant exist between the applicant and respondent?
4. Whether the shop in question is required by the applicant for his personal bona fide need?
5. Whether the re spondent has committed default in payment of rent of the shop in
question?
6. Whether the respondent has subletted the shop in question?
7. Whether the applicant is entitled to the relief claimed for?
8. Relief?
5. After framing of issues, both the parties produced their respective evidence. The
learned Judicial Magistrate -VII, Quetta/Rent Controller who vide its order dated 29th August
2014 allowed the eviction application, which was later on remanded by this court in a common judgment dated 20th November 2015 passed in F.A.O Nos. 69 to 90 of 2014.
6. After remand of the eviction application, both the parties produced additional
evidence in support of their claims. After hearing arguments of the parties, the learned Rent Controller vide impugned judg ment dated 15th August 2018 accepted the eviction
application filed by the applicant/landlord with direction to the appellant to handover the vacant possession of the shop in question to the applicant/landlord within thirty (30) days of passing of impugned judgment.
7. Now the appellant has challenged the impugned judgment dated 15th August 2018
passed by learned Rent Controller under section 15 of Restriction Ordinance, 1959 through the instant appeal.
8. I have heard the learned counsel for the parties an d have perused the entire record.
The respondent has pressed the application seeking eviction of the appellant mainly on two grounds, firstly for the appellant being bad pay master and secondly the shop in question being required by the respondent for his personal use as he and his brothers intend to start
and run their own business therein.
9. To resolve the controversy with regard to relationship of tenant and landlord between
the parties, the trial court framed an issue, which was decided against the appellant.
However, the question of default was decided against the respondent and it was not agitated.
10. There was no dispute in respect of ownership of the shop in question as the appellant
has taken ground that one Siraj -ud-Din Agha has executed mortgage deed with him on
various dates and a handsome amount has been received by Siraj -ud-Din Agha. As per terms
of agreements the appellant had a preferential right to purchase the shop in question. Since, the appellant in his reply to eviction application a dmitted that he has regularly been paying
rent to landlord, therefore, the question of title does not arise in the present case. The question now before this court is to determine whether the respondent and his brothers require the shops in question for their personal bona fide need?
11. Since the main and pivotal question in this case is the bona fide personal need of the
respondent and his brothers, in good faith, learned counsel for the parties focused their arguments on this issue. Section 13(3)(a)(ii) of the Rent Restriction Ordinance, 1959 provides certain conditions for eviction of a tenant. Before proceeding any further, it would be advantageous to reproduce, section 13(3)(a)(ii) of the Rent Restriction Ordinance, 1959 which reads as under: -
(ii) in the case of a non -residential building or a scheduled building or rented land, if -
(a) he requires it in good faith for this own use or for the use of any of his 1[* * *] children;
(b) he or his said child is not occupying in the same urban area in whi ch such building
is situated for the purpose of his business any other such building or rented land, as the case may be, suitable for his needs at the time; and
(c) he has not vacated such a building or rented land without sufficient cause after the comme ncement of this Ordinance, in the said urban area:
12. To determine the bona fide requirement of the person for whom the premises is
required, his conduct and the circumstances under which it is required have to be taken into consideration. To prove his bona fide, the landlord has to fulfil all the aforementioned three pre-requisite conditions specified in section 13(3)(a)(ii) of the Rent Restriction Ordinance,
1959. Since the ejectment of a tenant is regulated by statute which provides specific grounds for ejecting a tenant, the landlord to get an eviction order has to fulfill all the requirements
and in case any condition is not fulfilled, the eviction application shall not succeed.
13. The words 'good faith' and 'bona fide' used in the aforesaid provision of law have
special significance when seen in the light of preamble of the Rent Restriction Ordinance, 1959, which, otherwise envisages restriction on the eviction of tenants in the following words: -
"An Ordinance to restrict the increase of rent of certain premises within the limits of
urban areas and the eviction of tenants therefrom in the Province of [West Pakistan]"
It may be added here that the Black's Law Dictionary assigns same meaning to both
the words 'bona fide' and 'good faith', and provi des the following meaning to the word 'good
faith'.
"A state of mind consisting in (1) honesty in belief or purpose, (2) faithfulness to
one's duty or obligation, (3) observance of reasonable commercial standards of fair dealing in a given trade or busine ss, or (4) absence of intent to defraud or to seek
unconscionable advantage."
14. Rent Restriction Ordinance, 1959 has been promulgated for regularizing the rights of
both landlord and tenant in urban areas. In fact, the main theme behind the said law is t o
protect the rights of tenants, especially of those tenants, who occupy commercial buildings. The said tenant, who has established his business in premises and has achieved the 'good will', cannot be left on the mercy of the landlord. It is also admitted fact that not only such
tenant has spent huge amount rather precious time and hectic efforts to build up his business
and good will in the rented building. Not only his and, his family's livelihood is involved
rather in case of ejectment financial collapse of tenant cannot be ruled out.
15. The Courts are always conscious regarding the ejectment of a tenant from non-
residential/commercial building due to reasons mentioned above. However, it does not mean that a landlord, who has established and proved his b ona fide personal need for himself or for
his children cannot eject a tenant, who has established his business and achieved a good will in business community.
No doubt, it is settled by the superior courts that the landlord has a superior right of
possess ion and use of his property as against the tenant, but it has equally been settled that
the tenant may not be deprived of his legal business and may not be shunted out from the said premises, on mere assertion of the landlord.
16. The term 'good faith' is prime and essential ingredient of ejectment of the tenant. The
mala fide intention of landlord for ejectment on the ground of personal need can only be ascertained if it is proved that landlord in fact is not a 'needy' rather is 'greedy' and only desires t o enhance the rent according to his own will or he wants to rent it out to another
person on much higher rent.
17. It may be pointed out that the tenant cannot be evicted on the mere wish,
convenience, whim and fancy of the landlord. In this regard relianc e is placed on the case-
law Abdullah and others v. Yahya Bakhtiar PLD 2001 SC 158 wherein the honourable Supreme Court has observed as follows: -
"We are conscious of the fact that 'mere wish, convenience, whim or fancy of landlord, held, would not be enou gh to show that landlord 'requires premises in good
faith'. Landlord must prove requirement of premises for reasonable needs and that he was not seeking eviction on pretext of requiring additional accommodation with oblique motive of realizing some extrane ous purposes. Order of eviction would
require satisfaction of Rent Controller that reasonable requirement of landlord would be met by occupation of premises. Eviction order could not be granted on vague
allegations in eviction application. Mere ipse dixit of landlord that premises were
required for accommodating of its senior staff was not enough. Plea of requirement would have to be supported by valid reasons as to how such requirement is genuine."
18. In the present case the respondent in his eviction app lication also sought ejectment of
the appellant on the ground of his personal bona fide use. From the evidence of the parties it is established that the respondent is a handicapped person, as such, to a question he replied that he is personally unable to r un business but would run business through labours/servants.
It has also been admitted by him that he had earlier filed an eviction application to the extent of one shop in the same market, which was subsequently withdrawn and now to the extent of
these 22 shops eviction is sought on the ground of personal bona fide use as he intended to
run his own business therein.
The burden was on the respondent to prove that his need is bona fide rather than mala
fide. He tried to eject 22 tenants simultaneously. It i s worthwhile to mention here that the
respondent neither obtained/sought any map/permission from Municipal Committee, Quetta
for re -construction or for alteration in the building.
Record transpires that every shop in the market has a separate unit. It doe s not appeal
to a prudent mind that the respondent's brothers would start business in 22 shops which are admittedly separate units. This aspect of the matter causes reasonable doubt in respect of plea taken by the respondent for personal bona fide use of t he building.
The record further visualizes that the respondent's brothers are admittedly
independent and having their settled business of hoteling in Saudi Arabia, while it is also admitted that they rarely visit Pakistan, once or twice in a year. It is important to mention
here that the respondent did not mention as to which of his brother is jobless for whom the shop is required, because the names of the brothers have not been mentioned in the applications nor the witnesses and the respondent in his sta tement before the trial Court
disclosed it. Names of the brothers, for whom the shops are required, is vital, because it will deprive the tenant from raising the objection on the bona fides of the landlord. Furthermore, according to section 13(4) of the Or dinance, it is necessary for the person for whom the shop
is required, to occupy it within a month of an eviction order. Since no proper person has been specified for the purpose of getting the possession of the shops, therefore, if an eviction order
is pa ssed, it could not be implemented for the reason that no one will get the possession
thereof. Even otherwise, the alleged brothers for whom the shops in question were required,
did not appear before the trial Court. Since the applications were for the pers onal bona fide
use and occupation of the brothers of the applicant, therefore, their appearance before the court and recording their statement was necessary being the proper persons to explain their requirement. Without recording the statements of the brothers for whom the shops are required, it is not possible for the landlord to prove the personal bona fide need of his brothers and also the requirement cannot be adjudged. In this regard reliance is place on case titled Syed Abdul Rauf v. Abdul Sattar 1997 SCMR 1169 and Mahmood Khan v. Nasima
Khatoon 1982 CLC 1807.
19. It is worthwhile to mention here that before having a specific order, the respondent
had to prove that his need was/is genuine, honest and conceived in good faith. The Hon'ble
Supreme Court of India, while dealing with the issue of personal bona fide use in a case of Ram Dass v. Ishwar Chancier and others (AIR 1988 SC 1422), observed that:
"'bona fide need' should be genuine, honest and conceived in good faith. Landlord's desire for possessio n, however honest it might otherwise be, has, inevitably, a
subjective element in it. The "desire" to become "requirement" must have the objective element of a "need" which can be decided only by taking all relevant circumstances into consideration so that the protection afforded to tenant is not
rendered illusory or whittled down. The tenant cannot be evicted on a false plea of requirement or "feigned requirement". (See also Rahabhar Productions (Pvt.) Ltd. v. Rajendra K. Tandon AIR 1998 SC 1639 and Shiv S arup Gupta v. Dr. Mahesh Chand
Gupta AIR 1999 SC 2507).
Further in another case of Siddalingamma and another v. Mamtha Shenoy (AIR 2001
SC 2896), held that: -
"While determining the case of eviction of the tenant, an approach either too liberal or too co nservative or pedantic must be guarded against. If the landlord wishes to live
with comfort in a house of his own, the law does not command or compel him to squeeze himself and dwell in lesser premises so as to protect the tenant's continued occupation in tenancy premises. However, the bona fide requirement of the landlord
must be distinguished from a mere whim or fanciful desire. It must be manifested in actual need so as to convince the Court that it is not a mere fanciful or whimsical desire. The need sh ould be bona fide and not arbitrary and the requirement pleaded
and proved must neither be a pretext nor a ruse adopted by the landlord for evicting
the tenant. Therefore, the Court must take relevant circumstances into consideration while determining the issue of bona fide need so that the protection afforded to a
tenant is not rendered illusory or whittled down."
In the case in hand the respondent had approached the Rent Controller with two pleas
i.e. i) the appellant has proved himself bad paymaster, which was latter on disproved by him, as the rent was admittedly deposited in the Civil Court Deposit (CCD) account and received by the respondent through receipt and ii) for personal bona fide use of respondent himself and his brothers, which was also not proved, as his brothers were neither financially, nor occupationally dependent on him as his brothers are doing hoteling in Saudi Arabia.
20. It is worthwhile to mention here that the respondent stated in para No. 2 of eviction
application that "one Siraj -ud-Din who was partner of applicant's father erected Bilal Market
in the year 1986/87 comprising of 45 shops which were rented out to different tenants against the monthly rent, some three years back the father of the applicant was confronted by said Syed Siraj -ud-Din with tenant of the 23 shops by way of intimating to the effect that by
operation of law from now onwards the ownership of the 23 shops confer upon the father of the applicant, as such the father of applicant used to receive the rent from the r espondent
since 2009 by way of issuing the receipts."
Ex.P/A -1 which is a mutation entry of the shops in question is in the names of Syed
Abdul Naeem son of Abdul Samad, Syed Muhammad Ibrahim, Hamza, Bilal and Syed Abdul
Khair sons of Syed Abdul Naeem. The property is also in the name of father of respondent. Neither father of the respondent filed application for eviction of the appellant nor he was party in the eviction application. In such circumstances, personal need of the brothers is beyond the ambit of the provisions of section 13(3)(a)(ii) of the Rent Restriction Ordinance,
1959. What emerges from the fact stated above is that a landlord may apply to the Rent
Control Court for an order of eviction if he needs the building for his own occupation or the
landlord bona fide needs the building for occupation of his brothers.
21. In the present case the brothers of the respondent, for whose need the present
application for eviction had been brought, are neither minors nor infirm, old aged or incapacitated; they have attained majority and it is also not as if they have just come of age.
Such persons lose their character of being dependent on anybody and law cannot be so interpreted to allow the term "dependent" to be extended so as to permit a major, and financially having independent established business to be included in the definition /
meaning of the term "dependent". They have also no enforceable right in law to enforce against the respondent in view of the definition of the term "dependent" which is a le gal term
meaning that the dependent must have a right against the person on whom he is dependent and which right can be enforced in law.
22. By no stretch of imagination the respondent's brothers are dependent on the
respondent as admittedly they are having their settled business of hoteling in Saudi Arabia, and they rarely visit Pakistan, once or twice in year, thus they cannot be termed as dependent upon the respondent, nor the respondent can be allowed to seek ejectment on the ground of personal bona fide need for his brothers.
23. The trial court/Rent Controller while deciding the case, has failed to dilate upon the
above stated facts and legal proposition, therefore the judgment and decree in my considered view is suffering from illegality and irregular ity, as such, is 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 judgments dated 15th August 2018, passed by Senior Civil Judge -I Rent Controller, Quetta, resu ltantly, the eviction application is hereby
dismissed.
These are the reasons of my short order dated 30th March 2020.
SA/128/Bal. Appeal accepted.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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