P L D 2020 Balochistan 83
Before Muhammad Kamran Khan Mulakhail, J
ERICK (ARICK) FEROZE ---Appellant
Versus
PETHRES alias MITHO and another ---Respondents
F.A.O. No.7 of 2015, decided on 29th October, 2019.
Balochistan Urban Rent Restriction Ordinance (VI of 1959) ---
----S. 13 ---West Pakistan Urban Rent Restrictions Ordinance (VI of 1959), S.5 -A---
Ejectment of tenant ---Default in payment of rent ---Bona fide personal need of landlord ---
Denial of relationship of landlord and tenant by the tenant ---Words "requ ires it in good faith
for his own occupation" ---Scope ---Landlord filed eviction petition on the grounds of default
in payment of rent and for his personal bona fide need wherein he also sought recovery of
enhanced monthly rent ---Eviction petition was accep ted on the ground of default in payment
of rent and tenant was directed to vacate the premises within two months and pay outstanding
enhanced rent ---Validity ---Tenant had failed to produce any evidence through which it could
be inferred that petitioner was not his landlord ---Nothing was on record that demised
premises was not required to the landlord for his personal bona fide need ---Words
'requirement for personal bona fide occupation' did not denote a 'desire' ---Desire for
occupation could be denied but r equirement of personal bona fide use could not be turned
down in slipshod and cursory manner ---Solitary statement of landlord unless proved contrary
to the facts and evidence was sufficient to establish his personal bona fide requirement ---
Rent Controller had erred in law to enforce provision of S.5 -A of West Pakistan Urban Rent
Restriction Ordinance, 1959 which was not applicable to the present case being not part of
Balochistan Statute ---Rent Controller was not competent to direct the tenant to pay
outsta nding rent beyond the period of three years ---Nothing was on record with regard to
automatic enhancement of rent after every three years ---Findings of Rent Controller with
regard to outstanding amount of rent coupled with payment of previous arrear on enha nced
rate were set aside ---Tenant was directed to pay outstanding monthly rent from the date of
institution for a period of three years only ---Landlord for remaining outstanding amount
might avail remedy as provided under the law ---Appeal was disposed of, in circumstances.
Dr. Abdul Waheed v. Jaffar Ali and another 2009 MLD 564 ref.
PLD 1991 (Punjab Statute) 116 rel.
Khushal Khan Kasi for Appellant.
Syed Manzoor Shah for Respondent No.1.
Date of hearing: 30th July, 2019.
JUDGMENT
MUHAMMAD KAMRAN KHAN MULAKHAIL, J. ---This first appeal is directed
against the order dated 31.12.2014, (impugned order') passed by Civil Judge -VI, cum Rent
Controller Quetta ('Rent Controller/trial Court), whereby the eviction application filed by
respondent No.1 against the appellant and respondent No.2 was accepted and both of them
were directed to vacate the house in question within two months of passing of the impugned
order, with further direction to pay monthly rent @ Rs.4,000/ - from July 2011 to June 2012
and at the rat e of Rs.5,000/ - from July, 2012 till surrendering the vacant possession in favour
of respondent No.1/applicant. However, the eviction application upto the extent of personal
bona fide requirement was dismissed, therefore, the respondent No.1/applicant has also
preferred a cross objection up to the extent of issue No.3 (personal bona fide requirement),
which was resolved in negative.
2. Facts of the case as stated in the application are that the respondent No.1/applicant is
an owner of a house bearing No.4 s ituated at Bashir Abad Colony Quetta, which was rented
out to the appellant in the month of June, 2009 @ Rs.4000/ - but now he sought eviction of
the appellant mainly on the following three grounds:
i. The rent of the house in question has not been paid sin ce July 2011,
ii. Two rooms of the house in question were sublet to the respondent No.2 @ Rs.3000/ -
per month without permission and consent of the respondent No. 1/applicant, and,
iii. The house in question is required for personal bona fide requirement/need of the
applicant's/respondent Nos.1's family.
3. It was asserted by the respondent No.1 /applicant that he along with his family are
living in two rooms house in Cantonment area Quetta, therefore, the eviction of appellant and
respondent N o.2 was sought on the aforesaid three grounds. In addition payment @ 25%
enhancement in monthly rent w.e.f. July, 2012 was also sought. On receipt of notice, the
appellant entered appearance and filed rejoinder to the eviction application, while,
responden t No.2 chose not to appear, therefore, he was proceeded against ex -parte on 27th
June 2014.
The appellant in rejoinder asserted that the respondent No.1/applicant was landlord
but not the owner of the house in question, which belongs to one Bashir Ahmed (E x-MPA),
who after acquiring a land from Government for providing accommodations to the Christian
community, has only deputed the respondent No.1/applicant for collecting the rent on his
behalf; that the default in payment of monthly rent was also denied an d stated that no arrear
of rent is outstanding against the appellant; that the respondent No.1/applicant is a civil
servant and is already occupying a government accommodation in the cantonment area; that
he being not an owner of the house in question cann ot claim the eviction of appellant on a
strength of personal bona fide requirement.
4. The trial court in view of divergent pleas introduced by the parties framed following
issues:
1. Whether respondent No.1 has not paid the monthly rent to applicant since the month
of July, 2011?
2. Whether respondent No.1 has sublet two rooms of the rented house to respondent
No.2 at the monthly rent of Rs.3,000/ - without the permission of the applicant?
3. Whether applicant requires the rented house for his personal bona fide use to
accommodate his family?
4. Whether applicant is landlord only and not the recorded owner of the rented house
and is, therefore, not entitled to evict respondents on the ground of personal bona fide
use of the house?
5. Whether respondent No.1 is liable to pay enhanced rent at the rate of additional
amount of Rs.1,000/ - per month since the month of July, 2012?
6. Whether applicant is entitled for the reliefs he claimed?
7. Relief?"
The respondent No.1/applicant in support of his claim produced two witnesses and
finally got recorded his statement. The appellant produced two witnesses in support of his
defence and got recorded his statement as the only contestant. The trial Court after hearing
the parties and evaluating the evidence partly accepte d the application in the terms referred
hereinabove.
5. I have heard learned counsel for the parties at reasonable length and have also gone
through the record of case with their able assistance.
The perusal of impugned order (wrongly mentioned as judgmen t) the trial court while
resolving issue No.1 with regard to default of payment of monthly rent of the house in
question rendered affirmative findings and concluded that in view of willful default of the
appellant, he is liable to be evicted from the house in question. The findings with regard to
issue No.2 were also answered in affirmative and plea of the applicant about subletting two
rooms of the house in question to the respondent No.2 was also accepted.
However, issue No.3 regarding personal bona fide requirement/use of the respondent
No.1/applicant was resolved in negative. It was opined that requirement of personal bona
fide use has not been established through evidence. Issue No.5, regarding payment of rent at
enhanced rate after three years of last paid rent were also resolved in positive. Issue No.7
pertaining to relief clause, the appellant was directed to vacate the house in question within
two months of passing of the impugned order, and, pay the monthly rent @ Rs.4,000/ - from
July 2011 to June 2012 @ of Rs.5,000/ - from July, 2012 till surrendering the possession in
favour of respondent No.1/appellant.
6. The facts and circumstances of the case altogether conclude that three grounds, i.e.
default of rent, subletting of two rooms and default in pa yment of monthly rent, were pleaded
before the trial court, resulting into passing the eviction order of the appellant within two
months. The trial court did not accept the personal bona fide requirement of respondent
No.1/applicant merely for the reason t hat he could not produce any notice of eviction of the
government accommodation in which he is living in the Cantonment area. These findings of
the trial court on personal bona fide requirement of the respondent No.1/applicant were not
supported by law. Th e record shows that initially the appellant filed a "suit for injunction"
whereby, it was prayed that by means of mandatory injunction, the respondent
No.1/applicant be restrained from forcible dispossession of the appellant. The respondent
No.1/applicant entered appearance and consented that the appellant would not be
dispossessed without due course of law. Thereafter, the suit so filed by the appellant was
decreed with consent. In the earlier litigation, as well as, in the case in hand, though the
appella nt has admitted his tenancy and the landlordship of the respondent No. 1 /applicant,
but, denied his ownership on a pretext that the house in question belongs to one Bashir
Ahmed Ex -MPA. But neither in the earlier litigation nor in the instant case, he pro duced any
such evidence through which it can be inferred that the appellant was not his landlord.
Thus, under the circumstances, when it was established that the respondent
No.1/applicant is residing in the government accommodation having two rooms only, while
keeping in view the large family having seven members, needs the house in question for
personal bona fide requirement; that when the appellant has failed to bring on record any
convincing evidence to establish that the house in question was not requi red for personal
bona fide requirement, without any evidence in disprove of any of the three grounds, but,
still not accepting the respondent/applicant's assertion with regard to personal bona fide was
also against the spirit of law. The word 'requirement' for personal bona fide occupation in the
Ordinance 1959, does not denotes a 'desire' and, thus, in case of plea of personal bona fide
requirement, the desire for occupation can be denied, but requirement of personal bona fide
use cannot be turned down in slipshod and cursory manner. The solitary statement of the
landlord, unless proved contrary to the facts and evidence, is sufficient to establish his
personal bona fide requirement, therefore, the observations of trial court with regard to this
issue are s et aside.
7. As far as issue with regard to subletting is concerned, though it was pleaded by the
appellant that respondent No.2 viz Anwar Hadayat, is his cousin and is occupying two rooms
of the house in question on compensatory basis, but it was not esta blished mainly for the
reason that the respondent No.2 chose not to appear before the trial Court nor before this
Court, therefore, consecutively proceeded against ex -parte nor he appeared in witness box in
support of the appellant's plea. Thus, by admitti ng the occupation of two rooms by the
respondent No.2, the appellant has partly admitted the allegation of subletting.
8. The impugned order shows that the trial court while resolving
the issue No.5, directed the payment of additional amount of Rs.1000/ - per month as
enhanced rent from July, 2011 to June, 2012 and payment of rent at the rate of Rs.5,000/ - per
month from July, 2012 till handing over the vacant possession . The reliance in t his behalf
was placed on a judgment titled as" 'Dr. Abdul Waheed v. Jaffar Ali and another' (2009 MLD
564), it was further opined that the landlord was entitled to enhance rent @ 25%, but, since
the appellant was not paying the monthly rent, therefore, he was directed to pay Rs.1000/ -
per month as outstanding arrears of the enhanced rent from July 2011 to June 2012 with
further enhancement of Rs.1000/ - i.e. Rs. 5000/ - per month from July, 2012 till evicting the
house in question.
9. 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 thr ee years i.e.
till July 2012 the rent was required to be enhanced @ 25% and, therefore, the appellant was
directed to pay Rs.1000/ - 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 recovery the arrears of outstanding rent at the enhanced rate of
25%, which according to the observation of the trial court, would be increased and
implemented automatically. The perusal of provision of section 5 -A of the West Pakistan
Urban Rent Restriction Ordina nce, 1959 (Ordinance VI of 1959) regarding 25% automatic
enhancement in the monthly rent after every three years, shows that the said provision was
added by the Province of Punjab, through Act No.III of 1991 (PLD 1991 (Punjab Statute)
116) 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 the provision of section 5 -A, added by the province of Punjab
through Act -III of 1991, which stipulates that 'the rent of non -residential buildin g shall stand
automatically increased at the end of every three years of tenancy by 25% of the rent already
been 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.
10. The Rent Controller (trial Court) has erred in law to enforce provision of section 5 -A
in the instant case, which was admittedly not appli cable being not a part of the Balochistan
Statute. The trial Court has also directed the appellant to pay the alleged outstanding arrears
of rent at the rate of Rs.1000/ - per month as outstanding part of enhanced rent from month of
July 2011 to June, 2012, with further enhancement @ 25% from July 2012 till handing over
the vacant possession of the house in question, was not according to law being misconceived
and based on misunderstanding of law. A Rent controller was not competent to direct the
tenant to p ay the outstanding rent beyond the period of three years. The said embargo neither
provides any shelter to a defaulter/tenant being bad paymaster nor it disentitles the landlord
to seek eviction of the tenant on basis of default on payment of monthly rent, but the rent
beyond the period of three years cannot be directed.
11. In view of afore discussed facts and circumstances, I am clearly of the view that the
trial court has rightly passed the order of eviction of the applicant, but the findings in
negative , with regard to personal bona fide requirements, and automatic enhancement @
25% after every three years, were not supported by the law, therefore, while accepting the
cross objection of respondent No.1/applicant, the eviction application is also accepted for
personal bona fide requirement, besides subletting and default. However, the findings with
regard to outstanding amount coupled with payment of previous arrear on enhanced rate are
set aside. The appellant is directed to pay the outstanding monthly re nt @ Rs.3000/ - per
month from the date of institution for a period of three years only, while for rest of alleged
outstanding amount the respondent No.1/applicant may avail the remedy as provided under
the law.
With above modification in the impugned orde r of the Rent Controller/trial Court and
while accepting the cross objection filed by the respondent No.1/applicant, the appeal being
bereft of any merit is dismissed accordingly.
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