2021 M L D 1180
[Balochistan]
Before Muhammad Ejaz Swati, J
NASEER AHMED and another ---Appellants
Versus
GHAFOOR KHAN ---Respondent
F.A.O. No.05 of 2020, decided on 30th September, 2020.
(a) Balochistan Urban Rent Restriction Ordinance (VI of 1959) ---
----S.13 ---Eviction of tenant---Payment of "pagri" ---Personal bona fide need--- Scope ---
Tenant appealed against the acceptance of eviction application ---Contention of tenant was
that landlord had not approac hed him for collection of rent and that he (tenant) had paid
certain amount of sum as pagri ---Validity ---Tenant had not denied the existence of
relationship of landlord and tenant ---Tenant was under obligation to make payment of
monthly rent to the landlor d, in case the landlord refused to accept the rent, he had to send
the same through money order or any advanced mode and if the same was not accepted then
due rent was to be deposited in the Court ---Balochistan Urban Rent Restriction Ordinance,
1959 did not impose any obligation on the landlord to find his tenant and collect rent ---Plea
of payment of pagri could not be substantiated by the tenant through any documentary evidence--- Landlord had been successful in leading reliable and sufficient evidence to prove
that the shop in question was required in good faith for personal need of his sons ---Findings
rendered by the Rent Controller in the impugned order were based on proper appreciation of evidence and did not warrant interference by the High Court ---Appe al was dismissed, in
circumstances.
Alif Din v. Khadim Hussain 1980 SCMR 767; Malka Begum v. Mehr Ali Hashmi
1984 SCMR 755; Haji Abdullah v. Yahya Bakhtiar PLD 2001 SC 158; Iqbal Book and Depot and others v. Khatib Ahmed and 6 others 2001 SCMR 1197 and M essrs F.K Irani & Co. v.
Begum Feroze 1996 SCMR 1178 ref.
(b) Balochistan Urban Rent Restriction Ordinance (VI of 1959) ---
----S.13 ---Eviction of tenant ---Payment of "pagri"--- Scope ---Plea of payment of "pagri" does
not disentitle the landlord from filing ejectment proceedings against the tenant on the ground of personal bona fide need.
Muhammad Ashraf v. Ismail and 4 others 2000 SCMR 498 ref.
Abdul Jabbar Musakhail and Muhammad Qasim Mandokhail for Appellants.
Aftab Qadir Mughal for Respondent.
Date o f hearing: 25th September, 2020.
JUDGMENT
MUHAMMAD EJAZ SWATI, J. ----The respondent (applicant) filed an Eviction
Application against the appellant respondents and one Ahsan Waheed in respect of Shop No.
15 (G) ground floor situated at "Al -Bilal Market" K ocha Mid Shah, Abdul Sattar Road,
Quetta (shop in question) and averred that the shop in question was rented out to the appellant No.1 Naseer Ahmed (the tenant) by the previous owner. The respondent after purchasing the property including shop in question started collecting rent from the respondent No.1, the appellant No.2 (respondent No.3) who is son of the appellant No.1
(tenant) without permission of the respondent/applicants subleted the shop in question to one
Ahsan Waheed, who failed to make payment of rent of Rs.930/ - to the respondent (landlord)
from August, 2012. Besides the shop in question was required in- good faith for the son of
the landlord to start his own business of Mobile and Cosmetic in the shop in question.
2. The appellants while filing rejoinder to the Eviction Application contended that the
shop in question was rented out to the appellant No.1 by one Abdul Majeed Agha after
obtaining Rs.3,50,000/ - as pagri and now the landlord/respondent intends to deprive the
appellant/tenant from his amount, therefore, Eviction Application is based on ulterior motive.
The appellants in paragraph No.2 of the rejoinder to the Eviction Application admitted first default on the ground that the Munshi of the landlord was collecting rent of the shop in ques tion, who died in the year 2012, therefore, no one came to collect the rent.
Respondent/applicant produced two witnesses namely AW -1 Najeebullah and AW- 2
Mushtaq Ahmed. Appellants produced three witnesses namely RW -1 Attaullah, RW -2
Abdullah and RW -3 Zain ullah.
3. The learned Civil Judge -III/Rent Controller, Quetta vide judgment dated 30th
December, 2019 (impugned judgment) while accepting the Eviction Application directed the appellants to hand over the vacant possession of the shop in question to the respondent within 45 days of the judgment.
4. The learned counsel for appellants contended that shop in question was given on rent
in lieu of pagri, therefore, the applicant was required to adjust the rent and his plea for eviction was based on mala fide; that the issue with regard to the subletting and default had been dec ided contrary to the evidence available on record; that finding of the learned Rent
Controller is silent with regard to the issue No.5 as no evidence has been discussed; that respondent has also sought eviction of the other tenant, which reflects his mala fide; that the issue No.5 had not been substantiated through evidence, therefore, impugned judgment reflects misreading and non -reading of evidence and is liable to be set -aside.
5. The learned counsel for the respondent contended that default in payment of the rent
has neither deposited nor paid by the appellants; that the fact regarding payment of the pagri
had not been substantiated by the appellants through evidence; that the mere plea of payment
of pagri does not debar the landlord from eviction of the tenant from the rented premises;
that evidence related to the personal bona fide use of the shop in question has not been rebutted by the appellants, therefore, findings of the learned Rent Controller are based on proper appreciation of evidence.
6. Havin g heard the learned counsel for the parties and perused the evidence on record.
There is no cloud between the appellants in respect of relationship of landlord and tenant as the appellants in paragraph No.2 of the rejoinder to the Eviction Application has not denied
such relationship. On the question of default in payment of the monthly rent from 2012, the appellant stated that landlord had not approached for collecting the rent. It was the obligation of the tenant to make payment of the monthly rent to the landlord as per Section 13(2)(i) of
the West Pakistan Urban Rent Restriction Ordinance, 1959 (the Ordinance) and period of 60 days grace can be extended in payment of rent when it was due. Moreover as per amendment for Balochistan (Added by Balochistan Or dinance VIII of 1985) it is provided further that
where the application made by the landlord is on the ground mentioned in clause (1) of Section 13 of the Ordinance and the tenant on the first date of hearing admits his liability to pay the rent due from h im, the Controller shall, if he satisfied that the tenant has not made
such default on any previous occasion, direct the tenant to deposit all the rent due from him on or before a date to be fixed for the purpose and upon such deposit being made, he shall make an order rejecting the application.
7. The record of the instant case reveals that the appellants have failed to admit the
default on the first date of hearing or tender rent in any of the mode prescribed under the law or depositing the same in the C. C.D account of the Rent Controller, therefore, in the
circumstances, the conduct of the tenant would be termed to be contumacious. A tenant is required to pay rent to his landlord, in case the landlord refuses to accept rent, tenant must send the same through money order or any advance mode and if the same is not accepted then rent due should be deposited in the Court. Position of tenant is that of debtor who has to find out his creditor and tenant is never absolved from his liability to pay rent regularly. The
Ordinance not impose any obligation on the landlord to find his tenant and collect rent from him. Reference in this respect is made to case titled "Alif Din v. Khadim Hussain 1980 SCMR 767" and "Malka Begum v. Mehr Ali Hashmi" 1984 SCMR 755.
8. The in stance of the appellants regarding obtaining tenancy right on payment of pagri
to one Abdul Majeed Agha has not been substantiated through any documentary evidence nor examined said Abdul Majeed Agha. Moreover, plea of pagri would not disentitle the landlord to file ejectment proceedings against the tenant on the ground of personal bona fide need. Reliance is placed on a case titled "Muhammad Ashraf v. Ismail and 4 others" 2000 SCMR 498.
9. On the point of personal need of the shop in question, the responde nt beside
producing two witnesses also in his affidavit in evidence specifically stated about the issue No.5 i.e. personal need of the shop in question and his evidence has been found by the learned Rent Controller as trustworthy. The respondent/landlord has succeeded in leading reliable and sufficient evidence, which has not been shaken in cross -examination to prove
that the shop in question was required in good faith to the landlord for the personal need of
his sons. In such circumstances, the statement o f the landlord on oath was sufficient to prove
that requirement of landlord is bona fide. Reliance in this respect placed on cases titled "Haji Abdullah v. Yahya Bakhtiar" PLD 2001 SC 158, "Iqbal Book Depot and others v. Khatib Ahmed and 6 others" 2001 SCM R 1197 and "Messrs F.K Irani & CO. v. Begum Feroze"
1996 SCMR 1178.
10. The findings rendered by the learned Rent Controller in the impugned order is based
on proper appreciation of evidence, warrants no interference by this Court.
In view of the above, F .A.O. No.05 of 2020 is dismissed, however, six months time is
granted to the appellants to handover the vacant possession of the shop in question to the respondent from the date of this judgment.
SA/7/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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