P L D 2010 Quetta 33
Before Muhammad Noor Meskanzai, J
MUHAMMAD ANWAR ---Appellant
Versus
ABDUL HAMEED and others ---Respondents
F.A.Os. Nos.52, 53, 54 and 55 of 2006, de cided on 17th November, 2009.
(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959) ---
----S. 13---Ejectment proceedings ---Interested witnesses, evidence of ---Effect ---Rent
Controller relied upon the evidence of witnesses who were party in ev iction applications and
were trying to take benefit of their own statements by appearing as witnesses in the
proceedings ---Validity ---Statements of such witnesses were inadmissible against landlord.
PLD 1991 SC 645 rel.
(b) West Pakistan Urban Rent R estriction Ordinance (VI of 1959) ---
----S. 13---Ejectment of tenant ---Bona fide personal need of landlord ---Proof ---Choice of
landlord ---Scope ---Landlord who had shifted to foreign country sought ejectment of tenants
on the ground of personal need ---Ejectment application filed by landlord was dismissed by
Rent Controller ---Validity ---Mere presumption of `well settlement' in foreign country could
neither be a ground for depriving of landlord to enjoy his ancestral property not even
availability of certain other property could be made ground for disentitling him of relief or
doubting his bona fide ---It was idiosyncrasy, sweet -will and prerogative of owner to chose
and propose which one of the properties, he preferred to live in, therefore, such issue was
wrongly decided ---High Court set aside the findings of Rent Controller and held that landlord
required the premises for bona fide personal use and occupation of landlord, who was entitled
to have his property ---Statement of landlord was sufficient to prove i ssue regarding bona
fide personal need of premises by landlord ---High Court set aside the order passed by Rent
Controller and allowed ejectment application filed by landlord ---Appeal was allowed in
circumstances.
PLD 1969 Lah. 12 and PLD 1973 SC 218 re f. 2003 CLC 1221 rel.
PLD 1973 Quetta 28; PLD 1993 Quetta 84 and 1990 SCMR 1221 distinguished.
Sunder Dass for Appellant (in F.A.O. No.52 of 2006).
Farrukh Malik and Ejaz Sawati for Respondent (in F. A.O. No.52 of 2006).
Sunder Dass for Appellant ( in F.A.O. No.53 of 2006).
Farrukh Malik Respondent (in F.A.O. No.53 of 2006).
Sunder Dass for Appellant (in F.A.O. No.54 of 2006).
Farrukh Malik for Respondent (in F.A.O. No.54 of 2006).
Sunder Dass for Appellant (in F.A.O. No.55 of 2006).
Ejaz Sawati for Respondent (in F.A.O. No.55 of 2006).
Date of hearing: 29th October, 2009.
JUDGMENT
MUHAMMAD NOOR MESKANZAI, J .--- By this common judgment, I intend to dispose
of F.A.O Nos.52,53,54 and 55 of 2006 filed by appellant after dismissal o f eviction
applications Nos.1, 2, 3 and 4 of 2005 by Civil Judge -V, Quetta on 31st July, 2007.
2. The facts of the instant appeals are that appellant filed eviction applications against the
respondents in respect of the property bearing Khewat and Khatoo ni No.136/183 and Khasra
Nos.111, 123, 113, 114 and 115 comprising upon five Kitas, measuring 3663 sq. ft. situated
at Mohal and Mouza Ward No.22, Tappa Urban, Tehsil & District, Quetta. It was further
stated in the application that the brother of applican t namely Asmatullah has been expired and
the appellant being his legal heir is entitled to initiate the present eviction proceedings. It is
further case of the appellant that he had shifted to United States of America for the purpose of
earning of his live lihood and to get educated his children for higher qualification and to
upgrade their standard in the society. It is also case of appellant that he and his brother had
rented out the properties in question i.e. Property No.3 -14/5 situated at Tahir Khan Roa d,
Quetta to Abdul Hameed son of Abdul Majeed (late) (respondent in FAO No.52 of 2006)
monthly rental of Rs.15, Property No.3 -14/5 Tahir Khan Road, Quetta to Syed Shahab Uddin
(respondent in FAO 53 of 2006) at a monthly rental of Rs.20, Property No.3 -14/5 Tahir Khan
Road, Quetta to Haji Muhammad Qasim (Respondent in FAO No.54 of 2006) at a monthly
rental of Rs.16 and Property No.3 -14/5 (i) to Muhammad Hashim and Asghar Khan
(respondents in FAO No.55 of 2006) at a monthly rental of Rs.20, who were making pay ment
of rent to the appellant through valid receipts and paid the same till April, 1983 and
thereafter, they failed to pay or tender the rent to appellant, therefore; they committed wilful
default in depositing the rent in time. It is further averred in th e eviction application that the
properties in question were rented out to the respondents for the purpose of residential
purpose, which were houses, however; when appellant left for United States, in his absence
respondents misused the property and the por tion of the same were converted from residential
into commercial without permission and consent of appellant. It is averred in the eviction
application that the properties in question have also been damaged and the same are now in
dilapidated condition and nature whereof has been entirely changed. The appellant also took
the ground of personal bona fide use and occupation of the properties in question, as
according to him he along with his family members are now intended to re -shift to
Pakistan/Quetta and h e having no other suitable property for his residential purpose, thus the
properties in question are required to be demolished and re -constructed as houses.
3. The eviction application was contested by respondents by filing their respective rejoinders
to the applications, wherein; they raised various legal objections and particularly
maintainability of applications on the ground of jurisdiction. It was stated in the written
statements/rejoinders that in fact an open plot was rented out to them, upon which they had
raised construction for their residential purpose, as such; the learned Rent Controller/trial
Court has got no jurisdiction to adjudicate upon the matter. The ground for personal bona fide
use and occupation was also seriously disputed on the gro und that the applicant is enjoying a
well-settled life at United States of America and he does not need the properties in question
with good faith. Out of the pleadings of the parties, the learned trial Court/Rent Controller
framed following respective iss ues:---
Issues in FAO No.52 of 2006.
(1) Whether the respondent had committed default from 1999 and onward?
(2) Whether the property in question is required to the applicant for demolishing
construction for the same for his residential purpose?
(3) Whether the property in question is required to the applicant for his personal bona
fide use and occupation for demolishing and the construction the same for residential
purpose?
(4) Relief?
Issues in FAO No.53 of 2006.
(1) Whether the eviction app lication is not maintainable in view of PLO (A) of
rejoinder?
(2) Whether the house in question is required to the applicant for his personal bona
fide use for demolishing construction the same for the purpose of residential house?
(3) Whether the resp ondent had committed default from 1999 and onward?
(4) Relief?
Issues in FAO No.54 of 2006.
(1) Whether open land underneath was leased out in the year 1953/54 by the applicant
to late father of respondents?
(2) Whether the respondents have committ ed wilful default since April, 1983?
(3) Whether the premises in question is required for personal bona fide use and
occupation to applicant?
(4) Relief?
Issues in FAO No.55 of 2006.
(1) Whether the land in question was rented out to the responden t as white land for
residential purpose?
(2) Whether the respondent has committed wilful default?
(3) Whether the house in question is required to the applicant for his personal bona
fide use for demolishing and constructing the same for the purpose of residential
house?
(4) Relief?
After framing of issues, both the parties produced their respective evidence and also got
recorded their statements.
4. At the end of trial, the Rent Controller allowed the eviction applications vide its order
dated 27 th February, 2004 and directed the respondents to hand over vacant possession to the
appellant within a period of four months of passing of that order.
5. The respondents assailed the said order before this Court and this Court vide order dated
6th Octob er, 2004 set aside the order dated 27th February, 2004 and remanded the
applications with the directions as under: ---
"In such circumstances I deem it appropriate to remand the applications to the learned
Civil Judge -V/Rent Controller Quetta for reframin g of the issues taking into
consideration the averments made in the application and rejoinder and thereafter the
parties are to be afforded opportunity of hearing which Includes leading of additional
evidence if they so desire and thereafter to decide the applications afresh on its merits
without being influenced by the earlier findings/orders."
6. After remand, the case was registered, notices were issued to the parties and in compliance
of the order passed by this Court, following additional issues were framed in each
application: ---
Additional Issues in Eviction Application No.1 of 2005
(1) Whether the respondent is owner of superstructure of property in question?
(2) Whether the land in question does not fall within the definition of "Rented land "
and this Court has no jurisdiction to proceed the matter?
Additional Issues in Eviction Application No.2 of 2005
(1) Whether the open land underneath was leased out in the year 1953 -54 by the
applicant to respondent?
(2) Whether the respondent is o wner of superstructure of property in question?
(3) whether the land in question does not fall within the definition of "Rented land"
and this Court has no jurisdiction to proceed the matter?
Additional Issues in Eviction Application No.3 of 2005
(1) Whether the respondent is owner of the superstructure of property in question?
(2) Whether the land in question does not fall within the definition of "Rented land"
and this Court has no jurisdiction to proceed the matter?
Additional Issues in Evictio n Application No.4 of 2005
(1) Whether the open land underneath was leased out in the year 1953 -54 to the late
father of respondent?
(2) Whether the respondent is owner of superstructure of property in question?
(3) Whether the land in question does not fall within the definition of "Rented Land"
and this Court has no jurisdiction?
7. After framing of additional issues, the parties were asked to produce their evidence, if they
so desire. It seems that after remand, appellant got recorded statement o f his newly -appointed
attorney namely Malik Muhammad Nasir Kasi, however; respondents did not examine any
R.Ws. The record reveals that the appellant filed an application seeking permission to
produce A.W., but same was rejected vide order dated 18th July, 2006 passed by Civil Judge -
V, Quetta on the ground that several opportunities were afforded to the appellant, but he
failed to examine/produce any A.W., so application was treated as belated and as such;
rejected.
8. The trial Court at the strength of m aterial available on record dismissed all the four
applications by means of impugned judgments mainly with reference to issue No.1, which is
reproduced as under: ---
Whether the land in question does not fall within the definition of "Rented Land and
this Court has no jurisdiction to proceed the matter?
9. The trial Court while dilating upon issue No.1 framed in Eviction Application No.1 of
2005 dismissed the applications and thereafter arrived at the conclusion that the matter does
not fall within the j urisdiction of Rent Controller, hence he resolved issue No.1 in favour of
respondents and thereby other issues were also resolved in favour of respondents.
10. Mr. Sunder Dass, learned counsel for appellant submitted that the trial Court has
committed ma terial irregularity by dismissing the application on the ground of jurisdiction.
He submitted that in fact no other land was given to respondents. He next submitted that
residential rooms were given to respondents/their predecessor in interest and therefor e,
conclusions arrived at are perverse and contrary to record. He submitted that burden was
upon respondents, but they failed to discharge the onus by producing confidence inspiring
evidence. He further submitted that appellant is admittedly owner and land lord of the
properties in question and the documentary evidence has proved this fact and as well as the
construction of residential rooms on the plot and on the contrary, respondents utterly failed to
produce any such documents, ocular evidence and thereby they have failed to substantiate
their version. He argued that the impugned judgments are perverse, improper and result of
misreading and non -reading of evidence available on record. He finally submitted that the
properties in -question are not white land, but in fact were residential houses, so the matter
was entirely within the domain and seisen of Rent Controller. To substantiate his version, the
learned counsel relied upon the following authorities: ---
PLD 1969 Lah. page 12,
PLD 1973 SC page 218
2003 CLC 1121
On the other hand, Mr. M. Farrukh Malik and Mr. Ejaz Sawati, learned counsel respondents
submitted that the matter was absolutely beyond the jurisdiction of Rent Controller, therefore;
the Rent Controller rightly concluded that the matter does not fall within its jurisdiction. To
supplement their arguments, they relied upon following authorities:
PLD 1973 Quetta page 28,
PLD 1993 Quetta page 84
1990 SCMR 1221
11. I have considered the arguments so forwarded and perused the record minutely and
patiently. The crucial issue, which is additional issue No.2 in Eviction Application No.1, was
third in eviction application No.2, third in Eviction Application No.3 and was third in
eviction application No.4, but the Rent Controller dilating upon the matter, dealing with issue
No.1 without making any reference to any application, number dealt with the jurisdiction,
whereas; a perusal of all four applications reveals that in all these applications issue No.1 so
framed does not pertain to jurisdiction, but the Rent Controller after considering the evidence
of both the parties concluded as under: ---
"The contention of the respondents of the white land and non -jurisdiction of Court,
has been considered in juxtaposition with applicants' evidence and hold that the
respondents have succeeded to bring sufficient evidence on record for establishing
their contention about the getting the white land on rent basis from applicant for
residential purpose. So in circumstances, it is held without any fear of contradi ction
that the property in question does not fall within the definition of Rented Ordinance,
1959 and the issue is, therefore, decided in affirmative."
12. It is painful to note that the Rent Controller overlooked the nature of issue. The Rent
Controller while evaluating the evidence and forming opinion considered the evidence of the
parties in juxtaposition and thereby concluded that the issue No. 1 stands proved and as such;
was resolved in affirmative. The manner of resolving this issue and the procedu re adopted by
trial Court is highly illegal, unwarranted, in utter disregard and flagrant violation of
established principle of law and procedure. The findings are contrary to record. It was
bounden duty of respondents to have discharged this burden throug h production of impartial,
reliable and convincing evidence. The witnesses produced by respondents in these cases are
entirely partisan and highly interested, but the trial Court failed to take into account that the
affidavits of the witnesses so filed by respondents in these cases are parties against
appellant/applicant and cannot qualify the standard of witness. The trial Court while
resolving issue No.1 relied upon following RWs: ---
In FAO No.52 of 2006 Muhammad Anwar v. Abdul Hameed.
(1) Syed Shaha b-ud-Din son of Syed Khalo
(2) Syed Abdul Qayyum son of Haji Muhammad Qasim
RW-Shahab -ud-Din is respondent in FAO No.53 of 2006, whereas Syed Abdul
Qayyum is respondent in FAO No.54 of 2006.
In FAO No.53 of 2006 Muhammad Anwar v. Syed Shahbuddin.
(1) Abdul Hameed son of Abdul Ahad
(2) Abdul Qayyum son of Haji Muhammad Qasim
Abdul Hameed is respondent in FAO No.52 of 2006, whereas Abdul Qayyum is
respondent No.3 in FAO No.54 of 2006.
In FAO No.54 of 2006 Muhammad Anwar v. Haji Syed Abdul Wasay and others
(1) Syed Shahab -ud-Din son of Syed Khalo
(2) Abdul Hameed son of Abdul Ahad
Shahab -ud-Din is party in FAO No.53 of 2006, whereas Syed Abdul Hameed is
respondent in FAO No.52 of 2006.
In FAO No.55 of 2006
(1) Syed Shahab -ud-Din son of Syed Khalo
(2) Syed Muhammad Hashim son of Syed Muhammad Aslam.
Syed Shahab -ud-Din is party in FAO No.53 of 2006, whereas Muhammad Hashim is
allegedly purchaser of superstructure in the year, 1990 against a sum of Rs.150,000.
13. According to stateme nt of Syed Muhammad Hashim, he has sold the superstructure on
7th November, 2000 to one Asghar Khan son of Sala Gul against sum of Rs.750,000, though
it appears from the statement, no document or agreement has been produced; neither there is
any document a vailable on record nor the same has been exhibited. The trial Court while
resolving the issue committed various illegalities; firstly statement of all RWs were
inadmissible, because they were party in same eviction applications and were trying to take
bene fit of their own statements by appearing as witnesses in the same proceedings and in the
same court simultaneously. There is no cavil with the legal preposition that evidence of such
witness, who is party in eviction proceedings is inadmissible against lan dlord. In this regard, I
am supported by the judgment of honourable apex Court reported in PLD 1991 SC 645,
wherein it has been observed as under: ---
----S.13---Tenant producing another tenant as his witness against landlord in proof of
his averments in written statement --Evidentiary value of ---Such witness having
admitted grievance against landlord, his evidence was kept out of consideration.
So all ocular evidences produced by respondents are hereby declared inadmissible, as such
rejected.
14. Now w e are left to resolve the issue on the basis of material available on record. As far as
Appeals Nos.52, 53, 54 and 55 of 2006 are concerned, respondents have produced following
documents through RW -3 Exh.R/1 to Exh.R/3. In these documents in the column of rent
wherein particulars of remittance are required to be mentioned as " ﮐﺮﺍﻴﻪﺒﺎﺒﺖﺴﻔﻴﺪﺍﺮﺍﺿﻰ "
whereas, in FAO No.53 of 2006 RW -3 produced Exh.R/1 to Exh.R/5. Exh.R/1 pertains to
rents from January, 2003 to October, 2003. Here it has been mentioned that in th is column "
ﮐﺮﺍﻴﻪﺒﺎﺒﺖﺴﻔﻴﺪﺍﺮﺍﺿﻰ " whereas; rest of the Exh.R/2 to Exh.R/5 right from 1992 up to 2002
herein the column 3 of challan where particulars of remittance are required to be mentioned.
It is mentioned there as
In FAO No.54 of 2006, although Exh.R/ 2 and Exh.R/3 covers the rent of disputed property
from the year, 1992 to 1995 and in the third column where full particulars were required to be
mentioned. It is mentioned as under:
Exh.R/3 covers the period from 1989 to 1992
Exh.R/4 covers the period from 1989".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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