P L D 2016 Balochistan 76
Before Muhammad Ejaz Swati, J
MUHAMMAD IBRAHIM and another ----Appellants
Versus
ABDUL SALAM and 9 others ----Respondents
F.A.O. No.69 of 2015, decided on 28th March, 2016.
Balochistan Urban Rent Restriction Ordinance (VI of 1959) ---
----S. 13 ---Ejectment of tenant---Default in payment of rent ---Bona fide need of landlord---
Statement of attorney ---Scope ---Statement of landlord on oath was sufficient for acceptance of
eviction petition ---Statement of attorney should be construed as statement of principal unless
contrary had been proved---Mere non -appearance of landlord would not affect his bona fide
claim ---Tenant was bound to pay/deposit the rent within 60 days after it had become due but, in
the present case, he failed to do so---Tenant had committed wilful default in circumstances ---
Tenant would be liable to be ejected notwithstanding subsequent payment of arrears of rent ---
Landlord had choice to select any of his property for business or occupation on the ground of
bona fide use and occupation---Rent Controller had passed the impugned order after considering
the evidence on record---Tenant was allowed six months' time for handing over the vacant
possession of demised premises to the landlord subject to payment of mont hly rent ---Appeal was
dismissed in circumstances.
Iqbal Book Depot and others v. Khatib Ahmed and 6 others 2001 SCMR 1197; Malka
Begum v. Mehr Ali Hashmi 1989 SCMR 755 and Messrs F. K. Irani & Co. v. Begum Feroze
1996 SCMR 1178 rel.
Mumtaz Hussain B aqri for Appellants.
Muhammad Ibrahim Lehri for Respondents Nos.1 to 10.
Date of hearing: 1st March, 2016.
JUDGMENT
MUHAMMAD EJAZ SWATI, J. --- The appellant No.2 is tenant in shop situated at
Mastung Road, Quetta bearing Khewat No. 243, Khatooni No. 427, Khasra No.2418, Measuring
120 sq.ft in Mousa Mastung Town, Tappa Saddar Tehsil (hereinafter the "shop in dispute"),
whereas the respondents (la ndlords) filed eviction application against the appellants on the
ground of default from January 2007 to December 2013 with periodical enhanced rate as
permissible under the law, subletting and the shop in dispute was required for personal bona fide
use an d occupation of the respondent No.3 Abdul Nafay and respondent No.4 Muhammad Tahir.
2. The appellants filed rejoinder to the eviction application and contested the eviction
application on the ground that neither they have committed any default in payment of rent nor
the shop in dispute is required to the respondents (landlords) for personal bona fide need of the
respondents Nos.3 and 4. Out of pleadings of the parties, following issues were framed:
3. The respondents (landlords) produced three witnesses and got recorded their statements
through attorney Abdul Manan (respondent No.2). In rebuttal, the appellants produced two
witnesses and got recorded their statements.
4. The learned Rent Controller, Mastung (hereinafter the "trial Court") vide order da ted 27th
May 2015 (hereinafter the "impugned order") allowed the eviction application and directed the
appellants to handover the vacant possession of the shop in dispute to the respondents within a
period of three months.
5. The learned counsel for the appellants contended that the impugned order suffers from
misreading and non- reading of evidence; that the findings of the trial Court in respect of issue
No.1 are erroneous and contrary to evidence on record; that the respondents Nos.3 and 4 for
whom the shop in dispute was allegedly required, did not appear before the trial Court to
substantiate their requirement, therefore, in their absence, the findings rendered by the trial Court
are based on presumption and hearsay evidence; that besides the shop in dispute, the respondents
have other shops in the vicinity and the claim of the respondents was based on mala fides, which
facts had been unnoticed by the trial Court; that the issue of default has also been decided
contrary to record, as the respondents in their eviction application at Para No.5 pleaded that the
appellant Muhammad Umar, though deposited the rent from January, 2007 to December, 2013
with Bazar Union, but the respondents demanded enhanced rent according to the prevailing
market rate. The learn ed counsel further states that without resorting to the competent Court of
law for enhancement/fair rent, the landlord under the law cannot claim enhancement in the rent
according to his/their desire or wishes; that the impugned order in the aforesaid circ umstances is
liable to be set aside and the eviction application filed by the respondents may be dismissed.
6. On the other hand, the learned counsel for the respondents contended that the statement
on oath recorded by the landlord in respect of personal bona fide use and occupation of the shop
in dispute is sufficient for the bona fide claim of the landlord, which has been substantiated
through evidence; that no evidence worth of reliance in rebuttal has been produced by the
appellants to shake the bona fide of the respondents in respect of their claim; that the appellants
have also failed to prove that besides the shop in dispute, the respondents have/had other shop in
the vicinity; that the appellant No.2 was in occupation of the shop in dispute since 1962 and the
rent of the said shop was Rs.350/ -, whereas under the law, the rent is required to be periodically
enhanced 25% after every three years. Since the appellants have failed to make payment at the
rate of periodical/enhanced rent, therefore, they c ommitted default in payment of rent; that non -
recording of statements of the respondents Nos.3 and 4 neither reflect mala fides nor disentitle
the landlords/respondents from their bona fide claim.
7. Heard the learned counsel for the parties and have gon e through the record of the case.
To substantiate their claim in respect of personal bona fide use and occupation of the shop in
dispute, the respondents produced PW -1 Aziz Ahmed, PW -2 Hameed Ullah and PW -3 Khuda -e-
Rahim, who supplemented the contention of the respondents regarding personal use and
occupation. The statement of attorney for respondents on oath, wherein he categorically stated
that the shop in dispute is required for the personal bona fide use and occupation of his two
brothers Abdul Nafay an d Muhammad Tahir (respondents Nos.3 and 4), who are jobless. Despite
lengthy cross -examination, his statement was found creditworthy and reliable. It is well settled
proposition that such statement of landlord on oath is sufficient for acceptance of evicti on
application. In the case of Iqbal Book Depot and others v. Khatib Ahmed and 6 others, 2001
SCMR 1197, the Hon'ble Supreme Court observed as under:
"It is well- settled by now that where the statement of landlord on oath was quite
consistent with his av erment made in the ejectment applications, neither his statement
was shaken nor anything was brought in evidence to contradict the statement that would
be considered sufficient for acceptance of the ejectment application. In this regard we are
fortified by the dictum laid down in case titled Juma Sher v. Sabz Ali 1997 SCMR 1062
wherein it was held as follows:--
"Sole testimony of the landlord is sufficient to establish his personal bona fide need of
premises. Where the statement of landlord on oath was quite consistent with his
averments made in the ejectment application and neither his statement was shaken nor
anything was brought in evidence to contradict his statement and tenant had not even
stepped in the witness -box to controvert the testimony of the landlord. Rent Controller
was fully justified in accepting the evidence of the landlord and ordering eviction of the
tenant."
8. The other contention of the learned counsel for the appellants in the instant appeal that
the respondents Nos.3 and 4 for whom the shop in dispute was required did not appear is not
tenable. The respondents have recorded their statements through attorney Abdul Manan and no
objection in this regard has been raised by the appellants. The statement of the attorney under the
law is to be construed as statement of principal unless contrary has been proved. Even otherwise,
the mere non -appearance of the respondents Nos.3 and 4 will not affect the bona fide claim of
the respondents, particularly when there was no queries/ explanation re quired to be offered by
the respondents Nos.3 and 4 except their personal bona fide use and occupation.
9. The arguments of the learned counsel that due rent at the rate of Rs.350/ - per month had
been deposited by the appellants after passing of order by the trial Court. Under subsection (6) of
section 13 of the Balochistan Urban Rent Restriction Ordinance, 1959 (hereinafter the
"Ordinance, 1959") there was no default on the part of the appellants, as the due rent was paid,
even otherwise as per pleadings of the respondents, the appellants had deposited the due rent to
the Committee at the rate of Rs.350/- per month, but the respondents/landlord demanded
enhanced rent at the previous market rate, which according to learned counsel for the appellants
cannot be claimed unless determined by the Controller under section 8 of the Ordinance, 1959.
There is no cavil to the proposition that for the purpose of fair rent aggrieved party may
approach the Rent Controller for determination of fair rent, but in the instant case the issue
related to default had been decided by the Rent Controller against the tenant on the ground that
the tenant has failed to tender rent in favour of the landlord within the stipulated period. The
defence taken by the learned counsel for the appellant that subsequent payment of rent in CCD
account through challan shows the payment of due rent is not tenable. The appellant (tenant) was
under legal obligation to pay/deposit the rent within 60 days after it has become due but he failed
to do so and thus, committed a willful default. It is the mandate of clause (2) of section 13 of the
Ordinance, 1959 that the rent is to be deposited within 60 days after it has become due and after
that it would consider default and the tenant would be liable t o be ejected notwithstanding
subsequent payment of arrear of rent. Reference in this regard is to be made to the case of Malka
Begum v. Mehr Ali Hashmi, 1989 SCMR 755, wherein the Hon'ble Supreme Court of Pakistan
observed that "it is now well established that tender of rent after the period prescribed by law, is
no proper tender and that the tenant is guilty of default".
10. The other contention of the learned counsel for the appellants that the respondents have
other shops in the vicinity and their claim of eviction was based on mala fides, has also no
substance, as the appellants have failed to substantiate that the respondents during the pendency
of the eviction application had any vacant shop in their possession or they had taken possession
of any other shop in the said vicinity from other tenants, even otherwise it is choice of the
landlord to select any of his property for business or occupation on the ground of bona fide use
and occupation. In the case of Messrs F. K. Irani & Co. v. Begum Feroze , 1996 SCMR 1178, the
landlord had 60 + 21 shops and the Hon'ble Supreme Court of Pakistan observed as under:
"............mere the fact that respondent's husband had 62 shops in Defence Society and 21
shops in Gulshan- e-Iqbal would not disentitle the re spondent to apply for ejectment on
the ground of personal requirement of her son as it is for a landlord to select which of the
buildings he wishes to use personally or to provide the same to his children."
11. In the instant case, the Rent Controller af ter considering the evidence on record passed
the impugned order, which is unexceptionable, warrants no interference by this Court.
For the above reasons, F.A.O. No. 69 of 2015 is dismissed and the parties are left to bear
their own cost. However, six m onths' time subject to payment of monthly rent, is allowed to the
appellants for handing over the vacant possession of the shop in dispute to the respondents.
ZC/27/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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