2012 M L D 134
[Balochistan]
Before Muhammad Hashim Khan Kaka r, J
Mst. KUBRA KHANAM and another ---Appellants
Versus
ANJUMAN -E-IMAMIA ASSN -E-ASHRIA (REGD) ---Respondent
F.A.O. No.75 of 2009, decided on 28th September, 2011.
(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959) ---
----S. 13 ---Constitu tion of Pakistan, Arts. 23 & 24 ---Ejectment petition ---Demised shops
being part of Imam Bargah ---Bona fide personal need of landlord of demised shops ---
Proof ---Landlord being a registered Anjuman was running and managing affairs of Imam
Bargah ---Demised s hops were part and portion of Imam Bargah ---Landlord, in order to
run its religious affairs was holding "mahafil" and "majalis" and for purpose of "za -e-
reens", who used to come from different part of country and stay in Imam Bargah before
proceeding to zi arat of Holy Shrines in Iran, Iraq and Syria ---Evidence on record showed
that existing accommodation available with landlord was inadequate and not sufficient to
cater requirement for "mahafil" and "majalis" fully and completely ---Tenant had failed to
shatter veracity of statements of landlord and its witnesses that landlord was not in need
of demised premises ---Right of property as fundamental right was protected under Arts.
23 & 24 of the Constitution ---Right of ownership was superior than right of tenanc y---
Tenant being inferior in status regarding utilization of demised shops could not determine
sufficiency or insufficiency of landlord's requirement ---Ejectment petition was accepted
in circumstances.
Messrs F.K. Irani and Co. v. Begum Feroze 1996 SCMR 1178 rel.
(b) Natural justice, principles of ---
----"Audi alteram partem" (no one should be condemned unheard), principle of ---Scope -
--Such principle would be deemed to be part of every statute, unless its
application was specifically excluded.
(c) West Pakistan Urban Rent Restriction Ordinance (VI of 1959) ---
----S.13 ---Qanun -e-Shahadat (10 of 1984), Art. 129(g) ---Ejectment proceedings ---
Presumption of truth would attach to such proceedings carried out by Rent Controller.
Man zr Siddique for Appellants.
Mujeeb Ahmed Hashmi for Respondent.
Date of hearing: 16th September, 2011.
ORDER
MUHAMMAD HASHIM KHAN KAKAR, J. ---Through this Appeal filed under
section 15 of the Balochistan Urban Rent Restriction Ordinance VI of 1959 ( 'the
Ordinance'), the appellants impugn their ejectment from Shops Nos.4 and 5, situated at
Punjabi Imam Bargah, Alamdar Road, Quetta, ordered by Civil Judge -IV-cum-Rent
Controller, Quetta, by his judgement dated 18 -7-2009.
2. Facts, necessary for the disp osal of this appeal, are that the disputed shops were
rented out to the predecessor -in-interest of appellants, viz, Gul Ali on monthly rent of
Rs.150 per month of each shop, payable on the first day of every succeeding month. After
the death of Gul Ali, th e appellants succeeded as the tenants of the shops. Thereafter, the
respondent on 8 -12-2007 filed an application under section 13 of the Ordinance against
the appellants, on the grounds that the predecessor -in-interest of the appellants had
wilfully defaul ted in the payment of monthly rent from July, 1989 till filing of eviction
application and that the tenanted shops were needed by the respondent in good faith for
bona fide use and occupation of Imam Bargah, in order to run its religious affairs.
3. Learne d counsel for the appellants has assailed the findings of the Rent Controller,
on the ground that after recording the statement of appellants' attorney on 23 -6-2009, the
matter was adjourned for the final arguments on 2 -7-2009, when junior counsel for the
appellants; namely, Mr. Niamatullah appeared before the Rent Controller and requested
for adjournment, which was turned down and matter was decided one sidedly in violation
of the principle of natural justice. He further contended that the appellants had been duly
making payments of the rent to the respondent by depositing the same in CCD account
with the permission of the Rent Controller, because no one, on the part of respondent, was
ready to receive the monthly rent. Regarding the personal need of respo ndent, learned
counsel contended that the respondent did not reasonably and in good faith for bona fide
use and occupation required the shops in question. The premises, already in occupation of
the Anjuman, are enough and much more than the requirement tha t too, for their limited
ceremonies in a short span of time in the whole year.
4. On the other hand, learned counsel for the respondent, has vehemently opposed
the contentions so raised and supported the judgment impugned herein, on the grounds
that the Re nt Controller, after proper appraisal of record and evidence, has rightly made
the order of ejectment, which does not call for any interference by this Court.
5. Arguments pro and contra heard. Material made available on record perused, in
the light of rel evant provisions of law.
6. Admittedly, the respondent is a registered Anjuman, running and managing the
affairs of Punjabi Imam Bargah. The disputed shops are the part and portion of premises
of the Imam Bargah. The respondent, in order to run its religio us affairs, holding 'mahafil'
and 'majalis' and for the purpose of 'za -e-reen', who used to come and visit from different
parts of the country and stay in the Imam Bargah before proceeding to Ziarat of Holy
Shrines of Imams situated in Iraq, Iran and Syria . According to the evidence available on
record, the accommodation and place, already available with the respondent, is
inadequate and is not sufficient to cater the requirement fully and completely for 'mahafil'
and 'majalis'. The respondent recorded his statement and also produced Iftikhar Hussain
as AW -1 in support of his claim of bona fide need, whereas the appellants have failed to
shatter the veracity of statement of the respondent that he is not in need of the rented
premises. By holding the view, I am fortified by the dictum laid down by the apex Court
in the case of Messrs F.K. Irani and Co. v. Begum Feroze -reported in 1996 SCMR 1178,
wherein it has been held that: --
"Statement of landlord on oath, if consistent with the application for ejectment a nd
not shaken in cross -examination or disproved in rebuttal is sufficient to prove that
requirement of landlord is bona fide."
I am of the considered view that under the provisions of Articles 23 and 24 of the
Constitution of Islamic Republic of Pakistan, 1973, the right of property as a fundamental
right is protected. Admittedly, the right of ownership is superior than the right of tenancy.
Thus, the appellants, being inferior of status regarding the utilization of shops in question,
cannot determine the s ufficiency or insufficiency. The Rent Controller has rightly decided
Issue No.3 in favour of the respondent.
7. I am in agreement with learned counsel for the appellants that the principle of
natural justice "Audi Alteram Partem" (no one should be condemn ed unheard) is deemed
to be a part of every statute, unless its application is specially excluded. The record
reveals that the appellants' attorney statement was recorded on 23 -6-2009 and the case, as
suggested, was adjourned to 26 -6-2009, but could not pr oceed on account of strike
observed by the lawyers' community and case was adjourned to 2 -7-2009. Suffice to add
here that on the request of appellants' counsel, it was again adjourned to 14 -9-2009 and
on the said date, arguments were heard and order was r eserved, as such, the contention of
learned counsel regarding not providing proper opportunity of hearing, on the face of
record, is baseless, misconceived and nothing, but mockery of law. Even otherwise, under
Article 129 illustration (e) of the Qanun -e-Shahadat Order, 1984, the presumption of truth
is attached to the proceedings carried out by the Rent Controller.
8. The findings of the Rent Controller regarding personal requirement of the
respondent are based on elaborate, careful and correct appraisal o f evidence and do not
suffer from any misreading of the evidence.
9. In view of what has been discussed above, this appeal has no merits and the same
is dismissed. However, the appellants are directed to vacate the shops in question within a
period of two (02) months from the date of pronouncement of this order, subject to
payment of monthly rent.
Appeal dismissed.
S.A.K./124/Q 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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