2014 M L D 740
[Balochistan]
Before Muhammad Kamran Khan Mulakhail, J
Mst. ZOHRA and others---Appellants
Versus
TARIQ MURTAZA and another---Respondents
F.A.O. No.85 of 2012, decided on 29th November, 2013.
West Pakistan Urban Rent Restri ction Ordinance (VI of 1959)---
---S. 13---Ejectment petiti on---Default in payment of rent---D enial of relationship of landlord
and tenant by the tenant---Contention of tenant wa s that landlords had no cause of action and no
relationship of landlord and tenant existed betw een the parties---Eviction petition was dismissed
by the Rent Controller---Validity ---Landlords were not owner of the house in question but
another person was the owner of the house---La ndlords had pleaded that disputed house was
rented out to the tenant in the year 1995 who di ed in the same year---Eviction petition was filed
on 10-3-2011 and till that date landlords were unaware about the death of their tenant---Original owner of disputed house had decree of civil court in her favour---No rent was paid to the
landlords by the tenant---Such c ontroversy was within the jurisd iction of civil court and Rent
Controller had no jurisdiction to attend the same ---Contradictions existed in the evidence of both
the parties and defence of tenant was more plausi ble as compared to the contention of landlords--
-Impugned order passed by the Rent Controlle r was unexceptional and did not warrant
interference by the High Court---Appeal was dismissed in circumstances.
Mujeeb Ahmed Hashmi and Khus hal Khan Kasi for Appellants.
Masoom Khan Kakar for Respondents.
Date of hearing: 1st November, 2013.
JUDGMENT
MUHAMMAD KAMRAN KHAN MULAKHAIL, J.--- The appellants have assailed
the judgment dated 16-11-2012 passed by Judicial Magistrate, VII cum Rent Controller, Quetta,
whereby application filed by ( applicants) appe llants under section 13 of the Balochistan Urban
Rent Restriction Ordinance, VI of 1959 (the "Ordinance") for eviction of respondents had been
dismissed.
2. The succinct facts out of which the instant appe al arises are that appellants were claiming
ownership over the house bearing No.5-11/819-5 (t he house in question) situated at Motiram
Road, Quetta, which was rented out by their predece ssor-in-interest to the predecessor-in-interest
of the respondents Nos. 1 to 3, against a monthl y rent of Rs.1000. But after April, 2007 the rent
was not paid by respondents. Since the appellant' s present dwelling were not sufficient for their
personal bona fide requirements. The respondents Nos.1 to 3 had sublet the house in question to
respondents Nos.4 to 7. Thus, on ac count of wilful default in pa yment of monthly rent, personal
bona fide requirement and on account of sublet ting, ejectment of respondents was sought.
3. The respondents in their rejoinder had cont roverted the plea on the strength of certain
legal objections in respect of maintainability of eviction application, such as, locus standi of
appellants being hit by the prin cipal of Estoppel and on limitati on. The categorical denial in
respect of existence of any so rt of relationship of tenant and landlord had been introduced.
4. Out of the pleadings of the parties the following issues were framed by the trial court.
"(1) Whether the eviction Application is not maintain able in view of PLO's 'B', 'C', E ' and 'F'?
(2) Whether there exists relationship of landlord and tenants between the parties?
(3) Relief?".
5. In support of their plea, two oral witnesses namely, Tariq Aziz and Dukhan, three official
witnesses, the representative of Tehsil Quetta, the representative of Police Station Gwalmandi
Quetta and the representative of Civil Nazir of District Cour ts, Quetta were produced by the
appellants. While, the respondent s had produced two oral witne sses namely Rahim Shah and
Najeebullah, two officials, the representatives of National Bank Industrial Area Branch, Quetta
and the representative of Saddar Qanungo, Quetta along with record of Jamabundi of house in
question were produced.
6. The learned trial court on completion of trial had passed the impugned judgment, which
had been assailed in the instant appeal.
7. Mr. Mujeeb Ahmed Hashim, learned counsel for the appellants, contended that the
ownership of appellants is proved through cogent and reliable evid ence. The abstract of Revenue
Record and counter file of rent receipts are suffi cient to satisfy the requirement of prudence in
respect of relationship of the pa rties. The respondents have been depositing a rent of the house in
question in Civil Court deposits, (C .C.D A/C) due to litigation be tween the appellants and their
relatives.
Thus, in view of principle of rent laws, where once a tenant is always a tenant, the
respondents had no occasion to have denied the relationship of te nant and landlord. The glaring
contradiction between the testimonies of the res pondents' witnesses were sufficient to prove that
plea of denial of relationship was afterthought wa s made just to prolong the litigation. He urged
that learned rent controller had mi serably been failed to deal with the lis in view of the law laid
down on the subject by the Hon'ble apex Court, therefore, appeal is liable to be accepted
consequent upon acceptance of eviction applicati on with direction to the respondents to
surrender the possession in favour of the appellants.
8. Mr. Masoom Khan Kakar, learned counsel for the respondent strenuously opposed the
contentions and diverted the atte ntion of the court towards the pleadings of the appellants and
evidence produced by them. The contentions in the application were at variance from deposition
of witnesses. In eviction applic ation, the house in question was show n to have been rented out to
the predecessor-in-interes t of respondents Nos. 1 to 3 in the year 1995, and pleaded that till
April, 2007, he was paying the rent of house in question. The said predecessor of the respondents
Nos.1 to 3 was not alive in the year 1995, as acco rding to his last payment receipt of pension
dated 1-1-1990 produced by the repr esentative of the Bank, showed that the said person had died
in the year 1990. After filing of rejoinder to the eviction applic ation, despite having come to
know about the death of the predecessor of the re spondents Nos. 1 to 3, though the title of the
eviction application was amended but the pleadi ngs remained same and no permission had been
sought for amendment. He referred to the counter f ile of the rent payment receipts pertaining to
year 2000 and 2001, produced by appellants when the rent was being paid by means of
depositing the same in civil court deposit acc ounts (C.C.D A/C). The appellants could not
produce the counter file of rent deposit receipts prior to the year 2000 and subsequent to year
2001. He reiterated that the Civil Nazir, who appeared as AW-5 was appellants' witness. The
said testimony had diminished th e whole case of the appellants. If respondents were depositing a
rent in C.C.D account then there was no occasion fo r the appellants to have asked for payment of
rent. The principal of once a tenant always a tenant, does not apply in the respondents' case
because the respondents might be tenant of whosoe ver but not of the appellants and no any single
penny had ever been paid to the appellants in lieu of monthly rent. He stat ed that rent controller
under the Ordinance, 1959 does not enjoy the jurisdic tion to decide the matter, where the title is
shrouded in mysteries thus the eviction application had rightly been rejected and the subject
appeal is liable to be dismissed.
9. I have considered the contentions of both the counsel for the parties in the light of
available record. The contention on behalf of the appellants could not find support from record.
The representative of Saddar Qanungo, Quetta wa s summoned on applicati on of the respondents,
who had produced the Jamabandi record of the h ouse in question, wherein the name of one Noor
Ahmed appears in the column No.5 of ownership, while Column No.7 pertaining to tenant or
Bazgar shows the name of Ata Murtaza, the predecessor-in-inter est of respondents Nos.1 to 3.
The said record had been compiled in the year 1985. It is surprising that the appellants were
pleading that the house in question was rented out in the year 1995 to the said tenant who had
died in the year 1995. The attorney of appellants in reply to question No.8, of cross-examination,
stated that prior to years 1995 the house in questi on was vacant. Be that as it may, if the house in
question was vacant before the year 1995 then how could the name of father of respondents
Nos.1 and 3 was entered into the settle ment record (jamabandi) of year 1985.
10. Another astonishing asp ect of the case is that if the appe llants had rented out the house in
question to the predecessor-in-interest of respondents Nos.1 to 3 in the year 1995. The eviction
application was initially filed on 10-3-2011, and till that date the appellants were unaware about
the death of their tenant. Further the eviction application to the extent of title was amended and filed on 25-3-2011, but the para No.2 of the said application remain ed the same and showing the
same facts as in the first eviction applicati on. Had the predecessor-in -interest of respondents
Nos. 1 to 3 been remained tenant of the predecessor-in-interest of the appellants, but
astonishingly they were not aware of his death, the plea of the appellants has further diminished;
when a document in respect of last payment of pension amount shows that the said payment was
made on 1-1-1990 and thereafter the said pers ons was no more alive. The appellants had
produced representative of Tehsildar Quetta but instead of abstract of revenue record, which
would have shown the ownership of predecessor-in -interest of appellants, only a copy of Fard
was produced. While the record summoned and pr oduced by the respondents showed that one
Noor Ahmed son of Abdullah Jan was a re corded owner of the house in question.
11. The learned counsel for the respondents had also produced a copy of judgment and
decree dated 24-10-2003 passed by Senior Civil Judge-I Quetta in Civ il Suit No.70 of 2003,
which shows that the daughter namely Mst. Sadia of the original owner was in litigation with
father of the appellants, their pa ternal aunts and appellants Nos. 2 and 3 were defendants Nos. 5
and 6 in the said suit, wherein the suit pr operty was decreed in favour of daughter of
owner/landlord of respondents. Th e legal heir of original owner wa s in litigation with appellants,
therefore respondents were depositin g monthly rental in C.C.D A/C, and thus the same could not
be paid to the appellants in the year 2000 and 2001, which fa ct leads to negation to the
appellants' version. The case of the appellants is totally silent that when they were not legal heirs
of said Noor Ahmed, how, they had become en titled for getting inheritance entry in their favour.
Although, these questions relate to the juri sdiction of the civil court, which under the
provision of the Ordinance 1959 n eed not to be attended in view of the jurisdiction of rent
controller. Since the appeal is continuity of the main applic ation, therefore, any further
observation on this aspect might pr ejudice the case of either part y. However, the question cannot
be left in vacuum and is to be attended in vi ew of a dictum laid down by the Hon'ble Apex Court
on the subject. Reliance in this behalf is plac ed on a reported judgment in Rehmatullah's case,
1983 SCMR 1064.
12. As far as the oral evidence of both the partie s are concerned the said testimonies are of no
avail to either of them. Both sides had made gl aring contradictions, yet certain documents were
produced from both sides, which if kept in juxtaposition would reveal that the defense of
respondents was more plausible as compared to the contention of the appellants.
13. The facts and circumstances of the case in vi ew of the discussion made herein above the
judgment dated 16-11-2012 passed by the learned Re nt Controller is unexceptional and does not
warrant any interference by this court and it w ould be more appropriate for the appellants to
approach the court of civil ju risdiction for determination of their title if so advised.
Thus for the foregoing reasons appeal is here by dismissed but with no order as to costs.
AG/6/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,
let us know.