2015 M L D 605
[Balochistan]
Before Muhammad Kamran Khan Mulakhail, J
ABDUL QAYYUM and 8 others ---Appellants
versus
ABDUL GHAFFAR and 2 others ---Respondents
F.A.O. No.78 of 2012, decided on 30th April, 2014.
West Pakistan Urban Rent Restriction Ordinance (VI of 1959) ---
----S.13---Ejectment of tenant ---Default in payment of rent ---Personal bona fide need of
landlord---Denial of relationship of landlord and tenant by the tenant ---Scope---Where
relationship of landlord and tenant was in issue, Rent Controller would not resolve the remaining
issues---Title of landlords was shrouded in mystery who were neither in possession nor the
recorded owners of shop in question---Both the parties were in litigation with regard to title of
the prope rties---Civil suit was pending before the court of competent jurisdiction and landlords
had themselves chosen to take recourse to the civil court for determination of their title ---
Question of title over shop in question could not be decided before the for um of Rent Controller -
--Proper course for the landlords was to wait for the final adjudication of civil litigation pending
between them ---Findings of Rent Controller with regard to relationship of landlord and tenant
were well reasoned ---No relationship of landlord and tenant existed between the parties ---Appeal
of landlords was dismissed in circumstances.
Rehmatullah v Ali Muhammad 1983 SCMR 1064; Aadil Nadeem Rizvi v Gohar
Siddique 2004 SCMR 738 and Province of Punjab v Mufti Abdul Ghani PLD 1985 SC 1 rel.
Rehmatullah Barrech for Appellants.
Iqbal Ahmed Kasi for Respondent.
Date of hearing: 21st March, 2014.
JUDGMENT
MUHAMMAD KAMRAN KHAN MULAKHAIL, J. ---This appeal is directed against
the judgment dated 28 -9-2012 passed by the learned Civil Judge -VII-cum-Rent Controller
Quetta in Eviction Application No.1 of 2010, whereby the eviction application filed by the
applicants (hereinafter "the appellants") was dismissed.
2. Briefly the facts as narrated in the Eviction Application are that the predecessor -in-
interest of the appellants was the owner of property bearing Khasra No.14, Ward No.57 Tappa
Urban Quetta Tehsil and District, Quetta and a building namely Bombay Shopping Centre was
constructed thereon, wherein one of the shops (hereinaf ter "the shop in question") was rented out
to the respondent No.1 at a monthly rent of Rs. 350, which was payable on first day of every
succeeding month. It was averted that the respondent No.1 committed a default in respect of
payment of monthly rent and was not paying the rent since 1st November, 2005 and when this
eviction application was filed, an amount of Rs.17,500 was payable. Besides the default of
monthly rent, the respondent No. 1 also sublet the shop in question to respondents Nos.2 and 3
without the consent of the appellants. The shop in question was also stated to have required for
personal bona fide requirements.
3. On receipt of notices, despite effective service, the respondent No.2 did not opt to contest
the eviction application, however, respondents Nos.1 and 3 filed their separate replies and raised
certain legal objections as well as, controverted the facts narrated therein. The respondent No.1
admitted his tenancy but stated that some fifteen years ago when predecessor of the appellants
was proceeding to India, he came along with respondent No.3 and permitted him to pay the
monthly rent to respondent No.3, therefore, he did not commit any default and was paying the
monthly rent to respondent No.3. The plea of subletting was controverted on the strength that the
respondent No.2 is his real brother and they were running their joint business in the shop in
question but in the year 2005 they separated their businesses, the shop in question was left in
tenancy of the replying respondent, however, on 10- 2-2010 he vacated the shop in question in
favour of respondent No.3 and ( ) dated 20- 1-2010 was written prior to surrendering the
possession in favour of respondent No.3, therefore, the question of subletting is without any
substance.
4. The respondent No.3 filed his rejoinder and stated that Bombay Shopping Centre was
constructed by him wherein the shop in question is situated. He is an exclusive owner of the
whole property including the shop in question, wherein twenty seven other tenants are paying a
monthly rent to him. He categorically denied the relationship of tenant and landlord between the
parties and stated that he is in occupation being the owner in possession, therefore, the question
of subletting did not arise. He further referred that the predecessor of the appellants was his real
brother, who had also filed a suit for, "Declaration, Mutation, Possession, Mesne profit and
Permanent Injunction" against the replying respondent and two brothers viz Abdul Hakeem and
Akhtar Muhammad, the tenants of replying respondent were arrayed as defendants in the said
suit, therefore, the appellants are not in possession. The question of declaration of their title is
subjudice before the court of Civil Judge -IV Quetta in Civil Suit No. 94 of 2006, the refore, the
eviction application is not maintainable and liable to be rejected.
5. On divergent pleadings of the parties the learned trial court framed the following issues: --
"(1) Whether the eviction application is not maintainable in view of Legal O bjections raised
by the respondent No. 1 and respondent No. 3 in their separate rejoinders?
(2) Whether there exist any relationship of landlord and tenants between the applicant and
respondents?
(3) Whether the shop in question was sublet by the respondent No. 1 to respondents Nos. 2
and 3. Apart from that applicant requires the shop for his personal bona fides use?
(4) Whether the applicant is entitled for the relief claimed for?
(5) Relief."
Thereafter the appellants produced as many as three witnesses and finally the statement
of their attorney was recorded. The respondent No.1 did not produce any witness and only the
statement of his attorney was recorded. In rebuttal the respondent No. 3 produced three witnesses
and finally got his statement recorded. On completion of evidence the learned trial court passed
the judgment dated 28- 9-2012, which is impugned herein.
6. At the very outset Mr. Rehmatullah Barrech, learned counsel for the appellants referred
to the rejoinder of respondent No.1 and contended that in view of admission in respect of
tenancy, the relationship of tenant and landlord was successfully proved. He contended that the
shop in question including Bombay Shopping Centre was constructed by the predecessor of the
appellants but on account of some business objects, he while leaving for India, handed over the
supervision of his properties to his brother i.e. respondent No.3, who with the passage of time
usurped the properties. The learned counsel further contended that after disposse ssing the tenants
of the appellants all the shops were rented out to various persons just to strengthen the plea of his
ownership. He referred to the statement of AW -2, the representative of Civil Nazir Quetta,
whereby four Challans pertaining to the year 2005 were produced, which show that till October
2005 respondent No.1 was depositing rent in favour of predecessor of the appellants. He further
referred to incomplete copy of 'Intiqal' produced by AW -3 (the representative of Tehsildar City
Quetta) and stated that the mutation entries could not be effected because of some unavoidable
circumstances but the said incomplete entries show the ownership of predecessor of the
appellants. He finally urged that the learned Rent Controller has failed to understand the
controversy and the landlordship of the appellants was wrongly disbelieved, therefore, the
impugned judgment is not sustainable, which is liable to be set aside and the eviction application
deserves to be accepted. He relied upon a judgment reported in 1983 SCMR 1528, but there is no
judgment on page No.1528 of SCMR 1983 referred to by the learned counsel.
7. Mr. Iqbal Ahmed Kasi, learned counsel for the respondent No.3 has seriously
controverted the contention put forth by the learned counsel for the appellants and stated that title
of appellants is shrouded in mysteries for the sole reason that Civil Suit No.94 of 2006 is pending
adjudication before the Civil Judge - IV Quetta and in the said suit, the respondent No.1 was also
arrayed as defendant at s erial No.30, therefore the learned Rent Controller correctly concluded
that there was no relationship of tenant and landlord between the parties. He finally urged for
dismissal of the appeal.
8. I have heard the learned counsel for the parties and have g one through the case file. The
perusal of the statements of the appellants' witnesses reveal that AW1 viz, Agha Muhammad's
statement was based upon hearsay version in respect of tenancy, default and subletting. He
admitted the existence of dispute in respe ct of whole property between the parties, wherein the
shop in question is also included. The statement of representative of Civil Nazir, who appeared
as P.W.2 would be of no avail to the appellants as the respondent No.1 has categorically denied
and stated before the court that he was paying the rent to respondent No.3, therefore, it is not
acceptable that on one hand the respondent No.1 was paying the rent to the respondent No.3 and
on the other he was also depositing the rent in favour of predecessor of t he appellants. The
statement of the representative of Tehsildar Quetta, who appeared as AW -3 is also of no
assistance to the appellant's case as in the cross -examination the witness admitted that the copy
of 'Intiqal' (Ex -AW/5) brought by him is an incompl ete document on which neither the
signatures of the parities are available nor the order and signature of the concerned Tehsildar
were found. The statement of attorney for the appellants had further diminished their plea of
landlordship, when he admitted before the court that presently all the tenants of the said shopping
centre including the shop in question are paying rent to the respondent No.3.
9. The statement of the attorney for the respondent No.1 although supported the appellants'
claim but he als o stated that they were paying the rent to the respondent No.3 and in the year
2010, he handed over the vacant possession to the respondent No.3, therefore, presently no
relationship of tenant and landlord exists between them. He categorically denied the plea of
default in respect of monthly payment of rent and stated that till vacating the shop in question he
was paying the rent to the respondent No.3. He finally negated the plea of subletting and stated
that respondents Nos. 1 and 2 are real brothers and they were running their joint business in the
shop in question, however, in the year 2005 they separated their ways and the shop in question
was left in tenancy of the respondent No.1 and thereafter was handed over to the respondent
No.3.
The witnesses of respondent No.3 i.e. RW -1 Noor Muhammad and RW -2 Mian Gul
stated that they are tenants of the shops which are adjacent to the shop in question. They have
categorically denied the ownership, as well as, the landlordship of the appellants. RW -3
viz:Abdul Rehman, the Record Keeper of the District Court Quetta appeared and produced the
copy of plaint in Civil Suit No.94 of 2006. Finally the statement of the respondent No.3 was
recorded, who also produced ( ) in respect of vacating the shop in question in his favour by the
respondent No.1.
10. The learned Rent Controller while dealing with the issues, rendered the complete detail of
the dispute between the parties, however, it is suffice to mention here that where the relationship
of tenant and landlord is i ssue in dispute, then the learned Rent Controller need not to have
resolved the remaining issues. It transpired from the over all canvas portrayed through the
divergent pleadings of the respective parties that title of the appellants is shrouded in mysteri es,
when they are neither in possession nor the recorded owners of the shop in question. The perusal
of record further reveals that the appellants and respondent No.3 are in litigation in respect of
title of their properties, which includes the shop in que stion, since the "Civil Suit for Declaration,
Mutation, Possession, Mesne Profit and Injunction" is pending before the court of competent
jurisdiction and the appellants had themselves chosen to take recourse to the civil court for
determination of their t itle, therefore, such a crucial question of title over the shop in question
cannot be decided before the forum of learned Rent Controller, therefore, the proper course for
the appellants is to wait for the final adjudication of civil litigation pending between them. The
findings of learned Rent Controller in respect of relationship of tenant and landlord are well -
reasoned, therefore, does not require any interference by this court. It is worthwhile to mention
here that learned counsel also admitted that the suit of the appellants is pending before the civil
court. It is well settled that question of title is not to be determined by the Rent Controller. In
view of the pendency of civil suit seeking, declaration and possession of the shop in question.
including the shopping centre, wherein the shop in question is situated, Therefore, it can be
safely concluded that there is no relationship of tenant and landlord between the parties.
Reference is made to the following judgments of the Hon'ble Supreme Court: --
Rehmatullah v Ali Muhammad 1983 SCMR 1064
Aadil Nadeem Rizvi v Gohar Siddique 2004 SCMR 738
Province of Punjab v Mufti Abdul Ghani PLD 1985 SC 1
Thus, the appeal being devoid of merit is dismissed but with no order as to costs.
AG/16/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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