P L D 2020 Balochistan 78
Before Muhammad Kamran Khan Mulakhail, J
ZAHID HUSSAIN KHAN ---Appellant
Versus
SHAMS ULLAH ---Respondent
F.A.O. No.1 of 2019, decided on 18th November, 2019.
Balochistan Urban Rent Restriction Ordinance (VI of 1959) ---
----Ss. 13 & 5---Ejectment of tenant ---Default in payment of rent -Bona fide personal need of
landlord ---Rent Controller while accepting eviction petition on the ground of default in
payment of rent directed landlord to approach the civil Court for recovery of arrears of rent
and outstanding utility bills ---Validity ---Rent Controller was empowered to determine rent of
premises and pass order for payment of arrears of rent for the period of three years from
institution of eviction petition ---Tenant was bound to pay util ity bills regularly and Rent
Controller could pass order for payment of outstanding utility bills ---Landlord was not
entitled for any enhanced rent rather he should approach the Rent Controller under S.5 of
Balochistan Urban Rent Restriction Ordinance, 195 9---Landlord was entitled for arrears of
rent but not beyond the period of three years from the date of filing of ejectment petition ---
Civil Court was competent to try cases for recovery of arrears of rent and utility bills but
jurisdiction of Rent Control ler was not barred under law ----Landlord had proved his
entitlement for recovery of outstanding arrears of rent and utility bills but he was not entitled
for enhanced monthly rent after every three years ---Appeal was disposed of, accordingly.
Riaz Akhtar Tareen for Appellant.
Respondent: Ex parte.
Date of hearing: 1st November, 2019.
JUDGMENT
MUHAMMAD KAMRAN KHAN MULAKHAIL, J. --This First Appeal under
Section 15 of the Balochistan Urban Rent Restriction Ordinance -VI of 1959 ("Ordinance") is
preferred a gainst the judgment dated 04th December 2018 ("impugned judgment") passed by
the Civil Judge -II/cum Rent Controller, Quetta ("trial Court/rent controller"), whereby the
eviction application filed by the applicant/appellant was accepted with direction to
respondent, to handover the vacant possession of the shop in question to the appellant,
however, the relief to the extent of recovery of arrears of rent and outstanding bills was
declined, directing the appellant to approach the civil court.
2. Brief facts o f the case as narrated in the eviction application are; that the appellant is
owner of shop (tire shop) situated at Universal Auto Service, Petrol Pump, M.A. Jinnah
Road, Quetta, which was rented out to the respondent vide agreement dated 30th April 2011,
against monthly rent of Rs.10,000/ - for a period of eleven months., the rent was paid upto
31st December; 2012, but then the respondent defaulted in payment of rent, while also failed
to deposit the utility bills. As such, the eviction application was file d by the appellant mainly
on the ground of default in payment of rent by the respondent, besides pressing the ground of
his personal bona fide requirement.
On receipt of notice the respondent entered appearance through his brother Mr. Allah -
ud-Din along w ith counsel on 05th July 2018, received copies, thereafter chose not to appear
nor filed any rejoinder to the application, thus the respondent's right to file rejoinder was
struck off on 11th September 2018.
3. The trial court framed the following issues: --
(1) Whether the applicant has rented out the shop in question to respondent vide rent
agreement dated 30.04.2011?
(2) Whether the respondent has committed default in payment of rent?
(3) Whether the shop in question is required by the applicant for his p ersonal use and
occupation?
(4) Whether the applicant is entitled for relief claimed?
(5) Relief?
4. On conclusion of trial the order dated 04th December 2018 was passed, accepting the
eviction application, but declining the arrears of rent and utility bills, which has been
assailed in this appeal. It is imperative to note here that the notice issued to t he respondent
could not be served through ordinary mode, therefore, a publication was made in newspaper
"daily Bakhabar, Quetta" on 21st April 2019, but, the respondent chose not to appear,
therefore, was proceeded against ex -parte vide order dated 23th Ap ril 2019, though he was
initially represented by Ms. Tehmina Samad, Advocate, but she too, did not appear nor filed
her power.
5. Mr. Riaz Akhtar Tareen, Advocate for the appellant was heard at reasonable length
and record was also perused with his valuabl e assistance.
The perusal of the case file reveals that the eviction application filed by the appellant,
was accepted by the Rent Controller on the ground of default in payment of rent, however,
the reliefs sought to the extent of arrears of rent and the unpaid utility bills were declined,
with the direction to the appellant to approach the civil court for the leftover claim. It may
not be out of place to mention here that the rent controller is empowered to make order for
payment of arrears, however, such order cannot be passed beyond the period of three years
from the date of inception of eviction application. Section 13 subsection (6) of Balochistan
Urban Rent Restriction Ordinance, 1959, is clear enough to deal with the issues with regard
to rent and ar rears of rent, which stipulates.
"Section 13(6): --In proceedings under this section on the first date of hearing or as
soon as possible after that date and before issues are framed, the Controller shall
direct the tenant to deposit all the rent due from hi m and also to deposit regularly till
the final decision of the case, before the fifteenth day of each month, the monthly rent
due from him. If there is any dispute about the amount of rent due or the rate of rent,
the Controller shall determine such amount approximately and direct that the same be
deposited by the tenant before a date to be fixed for the purpose. If the tenant makes
default in the compliance of such an order, then if he is the petitioner, his application
shall be dismissed summarily and if he is the respondent, his defence shall be struck
off and the landlord put in to possession of the property without taking further
proceedings in the case.
The Controller shall finally determine the amount of rent due from the tenant and
direct that the s ame be paid to the landlord, subject to adjustment of the approximate
amount deposited by the tenant "
6. The afore -referred provision empowers the Rent Controller not only to determine the
rent of premises, if disputed, but also to pass a specific order f or payment of the same.
However, the period of arrear, though is not specified in the afore -referred provision, but this
issue has already been dealt with in a number of judgments of the apex court, which stipulate
that the arrears of rent would not be pay able beyond the period of three years from the date
of filing the application.
7. As far as the appellant second assertion with regard to payment of utility bills is
concerned, it was his plea, that the respondent has failed to pay the utility bills for a specific
period, which amount was also payable by him, however, his contention to this extent was
also declined. However, section 13(2)(vi) in proviso with "explanation" provides that "(i)
where the water charges or electricity charges or both are payable by the tenant to the
landlord such charges shall be deemed to be rent. Though in the instant case the utility bills
were not payable directly to the appellant, but it was the obligation of the respondent (tenant)
to pay the utility bills regularly as per c lause 8 of the rent agreement, which stipulates: --
The respondent has failed to pay the utility bills regularly, which was his duty and
liable against him, therefore, the Rent Controller, having powers to pass order to the extent,
failed to observe the ab ove quoted provision and also failed to pass any order on this aspect
of the case, thus erred in law.
8. The appellant in his application has also sought enhancement of rent @ 25% after
every three years. The issue with regard to enhancement of rent has al ready been dealt with
by this court in case of Airak Feroz v. Pethres alias Mitho and another in FAO No. 07 of
2015, wherein it was held that: --
"In the instant case the eviction application was filed on 08.5.2014 but the monthly
rent at enhanced rate was sought from July, 2011. The trial court was of the view that
when the house in question was rented out in the month of June, 2009, then within
three years i.e. till July 2012 the rent was required to be enhanced @ 25% and,
therefore, the appellant was dir ected to pay Rs. I000/ - from the date of alleged default
i.e. July 2011 till June 2012 and, thereafter with further enhancement @ 25%,
Rs.5000/ - per month. The trial Court while passing the order about arrears of alleged
outstanding rent, has stretched the period of default till July, 2011 and therefore, it
was mis -conceivably opined that in case of default the landlord/owner is entitled to
recover the arrears of outstanding rent at the enhanced rate of 25%, which according
to the observation of the trial c ourt, would be increased and implemented
automatically. The perusal of provision of section 5 -A of the West Pakistan Urban
Rent Restriction Ordinance, 1959 (Ordinance VI of 1959) regarding 25% automatic
enhancement in the monthly rent after every three yea rs, shows that the said provision
was added by the Province of Punjab, through Act No.III of 1991 (PLD 1991 (Punjab
Statute) 1161 w.e.f. 16 -03-1991. The Ordinance 1959 was promulgated in the
province of West Pakistan on 13th February 1959. The Presidential Order No.I of
1974 partitioned the province of West Pakistan (One -Unit) in to four provinces.
Through the presidential orders inter alia, the enactment of Ordinance 1959, was also
deemed to have been enforced in the newly constituted four provinces. But t he
provision of section 5 -A, added by the province of Punjab through Act -III of 1991,
which stipulates that 'the rent of non -residential building shall stand automatically
increased at the end of every three years of tendency by 25% of the rent already bee n
paid by the tenant'. Though the province of Balochistan adopted certain amendments
in the Ordinance 1959 vide Balochistan Act No.III of 1980, but provision of section
5-A pertaining to increase of rent @ 25% was neither adopted nor promulgated
separately ."
In view of afore -referred judgment, rendered by this court, while deciding the issue
with regard to enhancement of rent @25% after three years, the appellant is not entitled for
any enhanced rate, rather, if the applicant had some issue, he should have approached the
rent controller by invoking the provision of Section 5 of the Ordinances 1959.
9. Keeping in view the principle of rent laws the appellant was entitled for the arrears of
rent, but not beyond the period of three years from the date of incep tion of eviction
application, while the arrears of unpaid utility bills are also liable to be paid by the
respondent, but these aspects of the case were not properly dilated upon by the rent
controller, rather directed the appellant to approach the civil c ourt for the leftover or declined
relief. It is worthwhile to clarify that though Civil Court is competent enough to try the cases
for recovery of arrears of rent and arrears of utility bills, but the jurisdiction of the Rent
Controller is also not barred under the Rent Laws, rather fully empowers the rent controller
to decide the issue of recovery of outstanding or payable rent and arrears of utility bills, if
any. The Rent Controller to this extent has misapplied the relevant provisions of the
Ordinance 1 959, thus, erred in law.
The cumulative effect of the aforesaid discussion brings me to an irresistible
conclusion that the appellant has proved his entitlement for recovery of the outstanding and
payable arrears of rent, but not beyond the period of thre e years from the date of inception of
the application, and he was also entitled to demand the payment of the arrears of utility bills.
Therefore, the application is partly accepted to this extent only, and the respondent is
directed, to pay the arrears of three years of rent till the date of filing the eviction application
and for the period of pendency of eviction application, and also the outstanding amount of
unpaid utility bills. However, the relief to the extent of arrears of enhanced monthly rent @
25% after every three years is declined.
The appeal is partly accepted, with above modifications in the impugned judgment.
Office to prepare a memo of cost separately.
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