P L D 2014 Balochistan 96
Before Jamal Khan Mandokhail, J
Syed TAJ -UD-DIN---Appellant
Versus
AKHTAR MUHAMMAD and another ---Respondents
F.A.O. No.6 of 2012, decided on 6th September, 2013.
(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959) ---
----S. 13(4) ---Application for restoration of possession of tenant ---Contention of tenant was that
landlord had re -let shop in question ---Application for restoration of possession was accepted by
the Rent Controller ---Validity ---Application o f tenant did not disclose the date of occupation of
disputed shop by the new tenant ---Tenant had failed to prove that new tenant had occupied the
premises within two months after getting its possession by the landlord ---Neither rent deed nor
register of No tary Public had been produced before the Rent Controller by the tenant to prove his
contention ---No evidence was available on record to prove any rent transaction between the
landlord and new tenant ---Reliable and cogent evidence were required in that rega rd but the
witnesses produced by the tenant had not confirmed the contents of application of tenant nor they
had supported his statement ---Tenant had failed to prove relationship of landlord and tenant
between the landlord and alleged new tenant ---Landlord had produced partnership deed proving
a business of partnership between him and his partner ---Possession of respondent over the
premises was proved as a partner of the landlord ---Tenant had filed application after a
considerable long period without any ex planation for delay ---No time for filing such application
had been provided in the Ordinance but claim must be "within a reasonable time" ---Tenant was
either not serious about his claim or he was not sure about the nature of possession of partner of
landlo rd---Impugned order passed by the Rent Controller was not sustainable ---Appeal was
accepted and judgment and decree passed by the rent Controller were set aside.
(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959) ---
----S. 13(4) ---Restora tion of possession of tenant ---Conditions ---Pre-conditions for getting relief
under S.13(4) of West Pakistan Urban Rent Restriction Ordinance was to prove that landlord
himself or a child for whose personal need the premises was required had not occupied t he
premises within one month from the date of an eviction order or premises had been re -let to a
person other that the previous tenant within two months after getting its possession.
Syed Mumtaz Hussian Baqri and Sabra Islam for Appellant.
SAM Qadri for Respondents.
ORDER
JAMAL KHAN MANDOKHAIL, J. ---The appellant is the landlord of shops bearing
Nos.2 -31-51 and 2 -31-50(4) 1156/D, respectively, situated at Shahra -e-Liaquat Road, Quetta,
and Usman Jogezai Road, Quetta. The respondent No.1 was his tenant in both the shops,
therefore, an eviction applicat ion against him was filed by the appellant, which was accepted by
means of the order and decree dated 20th May, 2002. The decree attained finality up to the
Honorable Supreme Court of Pakistan, however, the respondent No.1 was directed to vacate the
shops in question within six months.
On completion of the stipulated period, the possession of the shops was handed over to
the appellant through the order of executing Court on 19th May, 2004. The respondent No.1 filed
an application under section 13(4) of t he Balochistan Urban Rent Restriction Ordinance, 1959
("the Ordinance") on 28th September, 2005, with a plea that the appellant/ landlord has re -let the
shops to the respondent No.2, therefore, the respondent No.1, being the previous tenant, is
entitled fo r restoration of the possession. The application was contested by the appellant and the
respondent No.2. The trial Court framed the following issues:
(1) Whether the respondent rented out the two shops bearing municipal No.231 -51/1157
(measuring 116 sq.f t.) (private No.3) Shahra -e-Liaquat Quetta and shop bearing Municipal No.2 -
31/50 (4)1156/D(private No.5) measuring 37 sqfi., Usman Jogezai Road, Quetta?
(2) Whether the applicant is entitled for the possession of disputed shops bearing Municipal
No.231 -51/1157 (measuring 116 Sq.Ft.) (Private No.3) Shahra -e-Liaquat Quetta and shop
bearing Municipal No.2 -31/50 (4) 1156/D (private No.5) measuring 37 Sq.fi., Usman Jogezai
Road, Quetta?
(3) Relief claimed for?
Additional Issues:
(1) Whether the evictio n application is not maintainable in view of preliminary legal
objections "A, B & C" raised by the respondents in their written statement?
The respondent No.1/applicant produced five witnesses and recorded statement through
his attorney. In reply, the a ppellant also produced five witnesses and recorded his own statement.
The respondent No.2 only recorded his statement. On conclusion of the trial, the Rent Controller
on 28 -2-2012 accepted the application only to the extent of one shop, i.e. No.231 -51-1157 ,
situated at Shahrae -Liaquat, Quetta. The appellant and the respondent No.2 were directed to
restore the possession in favour of the respondent No.1. Feeling aggrieved, the present appeal
has been filed.
2. Learned counsel for the appellant states that the appellant entered into a partnership
agreement to start joint business with the respondent No.2, therefore, he is not a tenant. He stated
that that the applicant/respondent No.1 has failed to prove a relationship of landlord and tenant
between the appe llant and the respondent No.2, but the Rent Controller did not consider such
fact. The learned counsel added that the respondent No.1 has failed to show that the possession
of the shop was handed over to the respondent No.2 within two months, as prescribed in section
13(4) of the Ordinance. He further stated that the application before the Controller has been filed
after a long time without any explanation, therefore, on this score as well, the respondent No.1
was not entitled for the relief claimed for. Th e learned counsel lastly argued that the impugned
order of the Controller is contrary to law and facts therefore, the same is illegal.
3. Learned counsel for the respondent No.1 opposed the contention and stated that
admittedly, the shop in question is i n the possession of the respondent No.2 and the income tax
returns submitted by him shows that he is a sole proprietor of the business and the name of the
appellant does not figure in the return as a partner or shareholder, therefore, it is proved that the
respondent No.2 alone is occupying the shop in his capacity as a tenant of the appellant, which is
a violation of the provisions of section 13(4) of the Ordinance. The learned counsel argued that
no time period for falling of the application under section 13(4) of the Ordinance has been
provided, therefore, the objection of the appellant is baseless. The learned counsel added that no
illegality or irregularity has been pointed out in the order impugned by the learned counsel for
the appellant, therefore, t he appeal is liable to be dismissed.
4. I have heard the learned counsel for the parties and have gone through the record of the
case. Before going to dilate upon the merits of the case, it would be appropriate to reproduce
section 13(4) of the Ordinance as under: --
13(4) -- "Where a landlord who has obtained possession of a building or rented land in
pursuance of an order made under sub -paragraph (i) or sub -paragraph (ii) of paragraph (a) of
section (13), does not himself or where the building, has bee n got vacated for the occupation of
any of his children, such child does not occupy it within one month of the date of obtaining
possession, [or have been so occupied is re -let within two months of the said date of any person
other than the original tenant ] the tenant who has been evicted may apply to the Controller for an
order directing that he shall be restored to possession of such building or rented land and the
Controller shall make an order accordingly. "
The above provision of law consists upon t wo parts; first, that pursuant to an eviction
order, a landlord himself or a child, for whose personal need, the premises was required, must
occupy the premises within one month from the date of an eviction order, and secondly, the
landlord must not re -let the premises within two months after obtaining its possession. The
respondent No.1, in Para 9 of his application, states that "after sometime the applicant saw that
instead of the respondent or his sons some new persons were making renovation in the said shop.
On enquires it was revealed that one shop (measuring 116 sq.ft.) has been rented out to new
tenant namely Ghulam Hazrat". The claim of the respondent No.1, as set out in his application,
covers under second portion of section 13(4) of the Ordinance. Considering his application, it
does not disclose the date of occupation of the shop by the respondent No.2, whereas the pre -
condition for getting relief under section 13(4) of the Ordinance is to prove that the premises has
been re -let to a person, other than the previous tenant, within two months, after getting its
possession. In the instant case, the respondent No.1 failed to prove that the respondent No.2 had
occupied the premises within two months, after getting its possession by the appellant. Besides ,
the respondent No.1 alleged that the disputed shop was rented out by the appellant to the
respondent No.2 through a rent deed dated 17 -6-2004, duly attested and entered in a register at
Serial No.8 by a Notary Public, namely Irshad Ali Advocate. To prove his contention, neither the
deed, nor the register of the Notary Public has been produced before the Controller. There is not
a single evidence proving any rent transaction between the appellant and the respondent No.2.
Since the provisions of section 13( 4) of the Ordinance are punitive in nature, therefore, to prove
the contention of the applicant, reliable and cogent evidence are required. The witnesses
produced by the respondent No.1 do not confirm the contents of the application nor supported his
statement. Under such circumstances, the respondent No.1 has failed to prove the relationship of
the landlord and the tenant between the appellant and the respondent No.2. To the contrary, the
appellant produced a partnership deed before the Rent Controller, pr oving a business partnership
between him and the respondent No.2, which is un -rebutted, therefore, the possession of the
respondent No.2 over the premises is proved to be as a partner of the appellant.
Moreover, the respondent No.1 has filed the application after a considerable long period,
without any explanation. It is true that no period for filing such application has been provided by
the Ordinance, but the claim must be registered within a reasonable time to show the intention of
the claimant . The conduct of the respondent No.1 shows that he was either not serious about his
claim or was not sure about the nature of the possession of the respondent No.2 over the shop.
The Rent Controller, while deciding the application, failed to dilate upon th ese facts, as such, has
come to a wrong conclusion, therefore, the order impugned is not sustainable.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.