P L D 2109 Balochistan 113
Before Naeem Akhtar Afghan, J
DAWOOD KHAN and another---Appellants
Versus
SULTAN MUHAMMAD---Respondent
F.A.O. No.92 of 2009, decided on 27th May, 2019.
Balochistan Urban Rent Restriction Ordinance (VI of 1959)---
----Ss. 13 & 13-A---Ejectment of tenant---Change of ownership---Denial of relationship of landlord and
tenant by the tenant---Default in payment of rent-- -Effect---Eviction petition was dismissed on the
ground that petitioner had failed to prove relation ship of landlord and tenant---Validity---Demised
premises had been mutated in favour of petitioner a nd other legal heirs through inheritance mutation-- -
Rent Controller had failed to appreciate that evict ion petition itself was to be regarded as notice un der
S.13-A of Balochistan Urban Rent Restriction Ordina nce, 1959---Respondent was a tenant in the
demised premises and his status would remain unchan ged---Mere denial of relationship of landlord and
tenant would not change the status of respondent as tenant of the demised premises---Co-owner could
competently file eviction petition against a tenant ---Denial of relationship of landlord and tenant by the
respondent with the petitioner was contumacious mak ing him liable for eviction from the demised
premises forthwith---Impugned order passed by the R ent Controller was set aside, in circumstances---
Eviction petition was accepted with the direction t o the tenant to hand over vacant possession of demi sed
premises to the landlord forthwith---Tenant was dir ected to pay monthly rent of demise premises to the
landlord for the last three years---Landlord might approach the Court of civil jurisdiction for recove ry of
such arrears of monthly rent---Appeal was allowed, in circumstances.
Khurshid Begum v. Qamar-ud-Din 1990 CLC 1463; Musli m Commercial Bank v. Karim Bakhtiar PLD
1988 Quetta 1; Pak. National Shipping Corpn. v. Gen eral Services Corpn. 1992 SCMR 871 and
Muhammad Shahid Nawaz v. Muhammad Saeed 2010 CLC 19 41 rel.
Abdul Sattar and Miss Shahnaz Rana for Appellants.
Muhammad Amir Rana and Zahoor Hassan Jamot for Resp ondent.
Dates of hearing: 19th and 26th April, 2019.
JUDGMENT
NAEEM AKHTAR AFGHAN, J.--- The instant appeal has been filed by the appellant against the
judgment dated 8th September 2009 (hereinafter "the impugned judgment") passed by learned Civil
Judge-III/Rent Controller Quetta (hereinafter "the Rent Controller") whereby eviction application
No.02/2007 filed by the appellants against the resp ondent has been dismissed.
2. After hearing learned counsel for the appellants and learned counsel for respondent, we have
perused the available record which reveals that vid e tenancy agreement dated 27th September 2003, the-
disputed shop situated at corner of Fatima Jinnah R oad/Tola Ram Road Quetta was rented out to the
respondent by appellant No.2 for eleven months mont hly rent of Rs.2,000/- .
In the said tenancy agreement, the appellant No.2 m entioned himself as owner of the disputed shop.
3. In pursuance of above tenancy agreement, the rent receipts were issued to the respondent bearing
title as 'Inayatullah Khan and sons'. Jnayatullah K han was father of the appellant No.2.
The father of the appellant No.2 filed eviction app lication No.96/2005 against respondent before the
Court of learned Civil Judge/Rent Controller-IV Que tta which was dismissed on 18th February, 2006 on
the ground that father of the appellant No.2 had fa iled to prove relationship of landlord and tenant w ith
the respondent and that the tenancy agreement was e xecuted by respondent with the appellant No.2.
4. Subsequently, the appellants filed eviction appli cation (subject matter of the instant appeal) on 24 th
May 2006 before the Rent Controller seeking evictio n of respondent from the disputed shop on the
ground of default in payment of monthly rent w.e.f. September 2005 till date and on the ground of
personal bona fide need and requirement of the disp uted shop for appellant No.1 (the recorded owner) f or
running his business.
5. The eviction application was contested by respond ent by filing reply with the contention that there
exists no relationship of landlord and tenant betwe en the parties; that the respondent has purchased t he
disputed shop from Syed Abdul Majeed Agha for consi deration of Rs.35,50,000/- vide agreement dated
21st June, 2005, that Syed Abdul Majeed Agha had pr eviously purchased the disputed shop from
appellant No.2 for sale consideration of Rs.29,00,0 00/- vide agreement dated 9th June, 2005; that afte r
dismissal of previous eviction application filed by father of appellant No.2, the instant eviction
application has been filed by the appellants to har ass the respondent with ulterior motives; that appe llant
No.2 being real owner of the disputed shop is backi ng out from the sale agreement dated 21st June 2005 ;
that civil suit for specific performance filed by S yed Abdul Majeed Agha is pending before the Court o f
civil jurisdiction and till determination of the ti tle of the disputed shop, the eviction application is not
maintainable; that the eviction application is suff ering from non-joinder of necessary parties as the other
surviving legal heirs of late Saadullah i.e. brothe rs and sisters of appellant No.1 have not been impl eaded
as party to the eviction application.
6. While denying default in payment of monthly rent, it was contended by respondent that since the
disputed shop has been purchased by him from Syed A bdul Majeed Agha on 21st June 2005, therefore no
occasion arises for him to pay monthly rent of the disputed shop to appellant No.2.
7. While denying personal bona fide need and require ment of the disputed shop for the appellant No.1
to run his business, it was contended by the respon dent that the disputed shop does not belong to
appellant No.1; that the disputed shop has been sol d by appellant No.2 to Syed Abdul Majeed Agha from
whom he had purchased the same, therefore, there is no occasion for the appellant No.1 to seek evictio n
of the respondent on the ground of his personal bon a fide need and requirement of the disputed shop
8. On the basis of pleadings of the parties, learned Rent Controller framed the following issues:
"1. Whether there exists a relationship of landlord and tenant between applicants and respondent?
2. Whether the respondent committed default in payme nt of rent since September, 2005?
3. Whether the applicant No.1 requires the said shop in question for his personal bona fide use?
4. Reliefs?
9. After framing issues, the parties led their oral as well as documentary evidence and got recorded
statements of their attorney.
10. After concluding evidence and hearing arguments, while deciding issue No.1 in negative, learned
Rent Controller held that the appellant No.1 has fa iled to prove his ownership for the disputed shop.
Issue No.2 with regard to default in payment of mon thly rent and issue No.3 with regard to personal
bona fide need and requirement of appellant No.1 fo r the disputed shop have also been been decided in
negative on the basis of findings in negative upon issue No. 1 .
11 . While resolving issue No.1 in negative, learned Rent Controller has failed to appreciate that the
respondent was inducted as tenant in the disputed s hop by appellant No.2 who is relative of appellant
No.1 .
The rent receipts available on record reveal that s ame were issued to the respondent by appellant No.2
for the disputed shop with the title 'Inayatullah a nd sons '.
It further reveals that subsequently the disputed s hop was mutated in the name of appellant No.1, his
mother, his brothers and sisters vide inheritance m utation No.416 dated 6th April 2006, whereafter in
May 2006 eviction application was filed by the appe llants.
12. While resolving issue No.1 in negative by holdin g that notice under section 13-A of the
Balochistan Urban Rent Restriction Ordinance, 1959 (hereinafter "the Ordinance") about change of
ownership of the disputed shop was not issued by ap pellant No.1 to the respondent, the learned Rent
Controller has failed to appreciate that eviction a pplication itself was to be regarded as sufficient notice
under the provisions of section 13-A of the Ordinan ce. Reference in this regard is made to the case of
Khurshid Begum v. Qamar-ud-Din 1990 CLC 1463.
Reference in above regard is also made to the case of Muslim Commercial Bank v. Karim Bakhtiar,
PLD 1988 Quetta-1, wherein it has been held as foll ows:
"Relation of parties as landlord and tenant could n ot be challenged after transfer of property by way of
gift, sale or inheritance..
.The filing of ejectment application may be conside red as notice of demand if the previous owner or
landlord has not claimed his title to the rented pr emises.
Reliance in this regard is also placed on the case of Pak. National Shipping Corpn. v. General Service s
Corpn. 1992 SCMR 871, wherein it has been held as f ollows:
"Institution of ejectment application and receipt o f copy of the said application by which the tenant
comes to know about the transfer of property consti tutes due notice and can be treated as
substantial compliance with the provisions of S.18, Sindh Rented Premises Ordinance, 1979 or S.
13-A of the West Pakistan Urban Rent Restriction Or dinance, 1959".
In view of the above, the filing of eviction applic ation by appellant No.1, being owner by virtue of
inheritance mutation, by the appellant No.2, being landlord, and receiving of the copy of the same by the
respondent, is held to be substantial compliance of section 13-A of the Ordinance.
13. While denying relationship of landlord and tenan t with the appellants for the disputed shop it was
contended by respondent that he had purchased the d isputed shop from Syed Abdul Majeed Agha vide
Iqrar Nama dated 21st June 2005 who had previously purchased the same from appellant No.2 vide sale
deed dated 9th June, 2005.
At the time of filing reply to the eviction applica tion by the respondent, the Civil Suit No.171/2009
filed by Syed Abdul Majeed Agha against the appella nts and others for declaration, permanent
injunction, specific performance and cancellation o f mutation entry with regard to the disputed shop w as
pending before the Court of learned Civil Judge-VI Quetta but subsequently vide order dated 5th
November 2009 the learned Civil Judge-VI Quetta rej ected the plaint of. that civil suit under Order VI I,
Rule 11 C.P.C. which was not challenged by the alle ged purchaser of the disputed shop i.e. Syed Abdul
Majeed Agha.
In Civil Suit No.171/2009 the respondent had submit ted an application under Order Rule 10 C.P.C.
which was not decided.
14. The order dated 5th November 2009 passed by lear ned Civil Judge-VI Quetta rejecting the plaint
of Civil Suit No.171/2009 under Order VII, Rule 11, C.P.C. which was filed by Syed Abdul Majeed Agha
was challenged by respondent (despite not being par ty to the suit) before this Court by filing R.F.A.
No.06/2010 which has already been dismissed by this Court vide judgment and decree dated 18th
December, 2018.
15. In order to assert his claim of bona fide purcha ser of the disputed shop from Syed Abdul Majeed
Agha (whose title for the disputed shop has not bee n established till date), the respondent has not
separately filed any civil suit for declaration of his title for the disputed shop.
16. While resolving issue No.1 in negative, learned Rent Controller has failed to appreciate that
respondent was inducted in the disputed shop as ten ant by appellant No.2 whereafter the disputed shop
came to share of appellant No.1 through inheritance mutation.
The learned Rent Controller has failed to appreciat e that in the facts and circumstances of the case, the
respondent cannot wriggle out of his status as tena nt of the disputed shop.
The trial Court has also failed to appreciate that the respondent is a tenant in the disputed shop and his
status, will remain unchanged in view of the princi pie of law that ,"once a tenant always a tenant".
Mere denial of relationship of 'landlord and tenant by respondent with appellant No.1 will not change
the status of the respondent as tenant of the dispu ted shop. Reference in this regard is made to the c ase of
Muhammad Shahid Nawaz v. Muhammad Saeed 2010 CLC 19 41.
17. With regard to objection of respondent about non -joining of necessary parties i.e: co-owners of the
disputed shop as applicants, suffice to observe her e that there is no bar for filing of eviction appli cation
against a tenant by anyone of the co-owners. Accord ing to settled principles of law, a joint owner can
competently file eviction application against a ten ant under section 13 of the Ordinance particularly
when none of the co-sharer comes forward with any a dverse claim.
18. In view of all the above, I have no hesitation t o conclude that the denial of relationship of landl ord
and tenant by the respondent with the appellants wa s contumacious making the respondent liable for
eviction from the disputed shop forthwith and there was no occasion for the learned Rent Controller to
give findings in negative upon issue No.1.
19. On reappraisal of the evidence available on reco rd it is further concluded that while dismissing
eviction application by giving findings in negative upon issue No.1, the learned Rent Controller has e rred
in facts as well as law and has failed to properly appreciate the evidence available on record.
For the above reasons, the appeal is accepted the i mpugned judgment dated 8th September 2009
passed by learned Civil Judge-III/ Rent Controller Quetta is set aside and the eviction application
No.02/2007 filed by the appellants against the resp ondent is accepted with directions to the responden t to
hand over vacant possession of the disputed shop to the appellants forthwith.
Since no order can be passed under the provisions o f the Ordinance against the respondent to pay
arrears of monthly rent of the disputed shop for pe riod of more than three years, therefore the respon dent
is directed to pay monthly rent of the disputed sho p to appellant No.1 for the last three years @
Rs.2000/- per month.
For recovery of the remaining arrears of the monthl y rent of the disputed shop, the appellants may
approach the Court of civil jurisdiction.
Decree sheet be drawn separately.
ZC/36/Bal. Appeal allowed.
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