2011 M L D 7 6
[Quetta]
Before Mrs. Syeda Tahira Safdar, J
ABD UL RAZZAQ ---Appellant
Versus
JAMEEL AHMED ---Respondent
F.A.O. No.2 of 2009, decided on 29th September, 2010.
(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959) ---
----Ss. 13(3)(a)(i), 11 & 13 -A---Ejectment of tenant ---Ground of defa ult in payment of
rent and bona fide personal need of landlord ---Tenant denied relationship of landlord and
tenant and contended that rented premises, being residential building, could not be required
by the landlord for commercial use ---Validity ---Tenant admitted to have been in possession
of the house in question as tenant; he could approach competent court to establish his title to
the house as no order deciding the title of ownership could be made under West Pakistan
Urban Rent Restriction Ordinance, 19 59---Respondent being son of late/previous landlord
had acquired the status of landlord within the meaning of S.2(c) of the West Pakistan Urban
Rent Restriction Ordinance, 1959 ---Rented premises was a residential building, therefore,
landlord was required to obtain permission from the Rent Controller in order to convert the
same into non -residential building under S.11 of the West Pakistan Urban Rent Restriction
Ordinance, 1959 ---Landlord, thus, failed to establish bona fide personal need ---Tenant
produced photo copies of challans showing payment of rent in the court ---Landlord had
failed to serve any notice upon the tenant about change of title to property resulting from
death of his father/previous landlord as required by S.13 -A of the West Pakistan Urban Rent
Restriction Ordinance, 1959 ---No question of payment of rent to him could arise in
circumstances ---Landlord could not prove the ground of default in payment of rent---Trial
Court wrongly decided the issue ---Appeal was accepted ---Impugned judgment was set aside.
(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959) ---
----S. 11---Application ---Landlord was required to obtain permission from the Rent
Controller to convert a residential building into non -residential building under S.11 of the
West Pakistan Urban Rent Restriction Ordinance, 1959.
(c) West Pakistan Urban Rent Restriction Ordinance (VI of 1959) ---
----S. 13-A---Notice of transfer of ownership to tenant ---New owner of rented property
was required to serve notice upon the te nant about transfer of ownership under S.13 -A of the
West Pakistan Urban Rent Restriction Ordinance, 1959, otherwise, a tenant would not be
deemed to have defaulted in payment of rent.
Manzoor Ahmed Rehmani for Appellant.
Mian Badar Munir for Respon dent.
Date of hearing: 14th May, 2010.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J. ---Instant appeal has been filed by the appellant with
averments that the trial Court failed to frame the issue determining the controversy in respect
of existence of rela tionship of landlord and tenant between the parties. The respondent was
bound to prove his ownership for which he failed. There is no default in payment of rent. The
trial Court failed to appreciate the provisions of sections 13(3)(a)(i) of the Ordinance V I of
1959. The evidence is not properly appreciated. He has prayed for setting aside of impugned
judgment dated 26 -12-2008 and dismissal of the eviction application filed against him by the
respondent.
The learned counsel for the parties argued their cas e. As per learned counsel for the appellant
that the premises being residential cannot be required for commercial purpose, as there is
nothing of the sort in the main application. Further the trial Court failed to consider that
though arguing in main appli cation about personal bona fide use, which in course of evidence
turned into commercial use, further the use and requirement of business partner is not
included, nor meant by term personal bona fide use. It is further his contention that proper
opportunity was not given to him by the trial Court for producing the evidence, while his
request for producing official witnesses was refused. In reply to the same learned counsel for
the respondent contended that there is no bar for claiming a residential building for
commercial purposes. Further, a tenant is always a tenant. It is also his contention that in
reply to main eviction application no plea in respect of alleged sale transaction was taken by
the appellant. He prayed for dismissal of the appeal.
As per r ecord the respondent/applicant filed an application seeking eviction of the
appellant/respondent from house bearing Municipal Nos.435 -39 situated at Gurdat Singh
Road, Quetta in occupation of the appellant being their tenant at monthly rental of Rs.300 on
grounds of default in payment of rent from last five years and his personal bona fide
requirement of the house for his own use and occupation. In reply the appellant being
respondent in eviction proceedings though admitted himself to be tenant in house in question
owned by Noor Ahmed, father of the respondent/applicant, who died some years ago. But he
denied rate of rent as Rs.300 per month. According to him the rent was fixed at the rate of
Rs.100 per month, which was collected by the landlord Noor Ahmed a t his will and choice.
Further, asserted that as Noor Ahmed refused to receive the rent, therefore, the same was
deposited in the court since January, 1999, as such there is no default in payment of rent on
his part. He further denied the requirement of ho use in question for personal need and
occupation of respondent/applicant. Though he admitted death of the landlord Noor Ahmed,
but showed his ignorance about devolving of title of landlord to the respondent/applicant.
It is further apparent from the reco rd that the issues were framed on 11 -10-2007, while both
the parties produced their respect evidence. It is apparent from perusal of statements of
witnesses that the appellant while cross -examining the respondent/applicant's witnesses and
also while produc ing his own witnesses tried to establish existence of sale transaction
allegedly effected between him and father of the respondent/ applicant namely Noor Ahmed,
the previous landlord, in respect of house in question. The appellant/respondent during course
of trial made efforts for amending his reply by way of filing application, but the trial Court
refused to accept the same through order dated 23 -5-2008. Despite the same he put questions
to same effect to the witnesses appearing on behalf of the respondent /applicant, while he
himself and his witnesses also deposed the facts while recording their statements. The perusal
of reply submitted by the appellant/respondent of main eviction application reveals that the
appellant clearly admitted himself to be in occ upation of house in question as tenant of Noor
Ahmed father of respondent/ applicant while admitted paying of rent to him personally in all
these years and on his refusal started depositing of rent in court since January, 1999. Though
he tried to establish the sale effected between him and Noor Ahmed, but failed as rightly
decided by the trial Court while assessing the material brought on record, no interference is
required to be made in the same. In case he wanted to establish his title as owner of house i n
question he may do so while approaching the competent court. In proceedings held under
provisions of this Ordinance VI of 1959 no order can be made deciding title of ownership of
the parties.
Now coming on merits of the case. The respondent/ applicant while claiming himself to be
landlord of house in question being one of the legal heirs of the deceased owner/landlord
namely Noor Ahmed, sought eviction of the appellant on ground of personal bona fide use
and occupation and default in payment of rent. Th ough the appellant objected on status of the
respondent being landlord, as there are other legal heirs of the previous landlord/owner. This
fact though admitted, but under provisions of Balochistan Rent Restriction Ordinance, 1959
term "landlord" is define d in section 2(c), which states as under:
2(c) "Landlord" means any person for the time being entitled to receive rent in respect
of any building or rented land whether on his own account or on behalf or for the
benefit of any other person, or as a trust ee, guardian, ------------ receiver, ---------
executor, or---------- administrator for any other person, and includes a
tenant, who sublets any building or rented land in the manner hereinafter authorized
and every person from time to time deriving title un der a landlord."
Thus after death of landlord also being owner, any one of his legal heirs can gain status of
landlord within meaning of this Ordinance, all the legal heirs are not required to join as party.
Thus to this extent the objection raised by th e appellant is of less importance.
As the respondent/applicant sought possession of house in question on ground of his personal
bona fide use and occupation, thus the burden lies on him to establish the same. As per AW -1
Saifullah the respondent/applican t intended to include the disputed house within the premises
of his workshop situated adjacent to it. AW -2 Bashir Ahmed, brother of the
respondent/applicant stated that they wanted house in question for their personal need, as they
intend to include it wit hin premises of their workshop situated adjacent to it. The respondent/
applicant also stated the same, according to him as there is shortage of space in their
workshop situated adjacent to house in question, which is required to be included therein.
Thoug h the respondent/applicant is completely silent to same effect in his application for
eviction, rather he only asserted for his personal use and occupation in good faith. As far as
requirement of landlord for residential building is concerned section 13 su bsection (3)(a)(i) of
Ordinance VI of 1959 is relevant, which states as under: -
"13(3)(a) A landlord may apply to the Controller for an order directing the tenant to
put the landlord in possession --
(i) in the case of a residential building, if --
(a) he requires it in good faith for his own occupation or for the occupation of any of
his children;
(b) he is not occupying another residential building suitable for his needs at the time
in the same urban area in which such building is situated; and
(c) he has not vacated such a building without sufficient cause after the
commencement of this Ordinance in the said urban area;
While need for non -residential building is concerned, clause (ii) of subsection 3(a) of section
13 of the Ordinance is relevan t. In present case the disputed property is admittedly' residential
house, which is also required by the respondent/applicant for his personal use and occupation
i.e. for his residential purposes. But keeping in view the evidence produced by him,
(responde nt/applicant) there is intention of converting the residential building into non
residential building. Thus in the circumstances he was required to obtain permission in
writing from the Controller for conversion of residential building into non -residential
building as required under section 11 of the Ordinance VI of 1959. The respondent/applicant
was required to move the application under said section while seeking eviction of the
appellant/respondent, which he failed to do. This aspect of case has not been considered by
the trial Court. Thus in above mentioned circumstances and facts the respondent/ applicant
has failed to establish his requirement of house in question for his personal bona fide use and
occupation.
The second ground on which eviction of t he appellant/ respondent was sought is default in
payment of monthly rent. As per respondent/applicant the appellant/respondent has failed to
pay the rent from last five years, no specific date is mentioned in the application. In reply the
appellant/respon dent contended that as the owner Noor Ahmed refused to receive the rent,
whereupon he started depositing the rent in the court in his name from January, 1999. Though
AW-II and the respondent/applicant in their statements stated that rent has not been paid from
last 6/7 years, but they have failed to specify the month from which default was alleged to be
made. While on the other hand the appellant/respondent along with his reply filed Photostat
copy of challans, which reveals that the rent has been deposited since January, 1999 in favour
of Noor Ahmed. Admittedly the rent has not been paid to the respondent/applicant in all these
years even after death of Noor Ahmed as it is also an admitted position that after death of his
father, the respondent/applicant ne ver served the appellant/respondent notice about change of
title as required to be served under section 13 --A of the Ordinance VI of 1959, which states
asunder: --
"13-A. A tenant to be informed in case of transfer of ownership .---Where the
ownership of a building in the possession of a tenant or rented land has been
transferred by way of sale, gift, inheritance or in any other manner, whatsoever, from
one person to another, the new owner shall Send an intimation of such transfer in
writing by registered p ost, to the tenant of such building or rented land, and the tenant
shall not be deemed to have defaulted in the payment of rent for the purposes of
clause (i) of subsection (2) of section 13, if the rent due is paid within thirty days from
the date when th e intimation should in the normal course have reached him."
Thus in absence of the required notice the question of payment of rent to him does not arise
before filing of the eviction application. It is also apparent from the record that the trial Court
ordered for deposit of rent tentatively through order dated 11 -10-2007; non -compliance of the
same has not come on record. The respondent/applicant failed to establish the ground of
default in payment of rent. The trial Court has made an error while decidin g this issue too.
The third issue is in respect of rate of rent. As per respondent/applicant the house in question
was rented to the appellant/respondent at rate of Rs.300 per month, while in reply the
appellant/respondent asserted it to be at the rate o f Rs. 100 per month. Though the trial Court
arrived to the conclusion that agreed rent was Rs.300 per month simply relying on statements
of respondent/applicant and his witnesses. But there is no rent receipt or any other document
which is placed on record , from which it can be ascertained that agreed rate of monthly rent
was Rs.300. While on the other hand the appellant/ respondent asserted it to be Rs.100 per
month, he placed on record the challan pertaining to year 1999. Reliance can be made on the
same. As per respondent/applicant's own showing, in his main application filed in year, 2007,
that his father died 5/6 years back, this means he died in years, 2001 or 2002, as such the
appellant/respondent was depositing rent in his favour from year, 1999 at t he rate of Rs. 100
per month in case there was any grievance he (Noor Ahmed) may in life time objected the
same. Nothing contrary is placed on record by the respondent/ applicant, mere oral statement
of him and his witnesses cannot be relied. Even in the c ircumstances, when none of them
claimed to be eyewitness nor asserted that rent was ever paid in their presence.
The trial Court has not properly assessed the evidence and come to the conclusion, which is
not based on material present on record, thus lia ble to be set aside. In view of above
discussion the appeal is hereby accepted. The impugned judgment dated 26 -12-2008 is
hereby set aside. Further, the appellant has been depositing the rent at the rate of Rs.150 per
month as per order of the trial Court dated 11 -10-2007, as the rate of rent is decided to be
Rs.100 per month, therefore, the excess amount deposited by the appellant will be adjacent
towards future rent.
No orders as to costs.
A.R.K./104/Q 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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