PLJ 2024 Quetta 87
Present: G UL HASSAN TAREEN , J.
MUHAMMAD ARIF SHAH--Appellant
versus
MUHAMMAD ISHAQ DARZI --Respondent
F.A.O. No. 10 of 2023, decided on 13.10.2023.
Balochistan Urban Rent Restriction Ordinance, 1959 (VI of 1959) --
----Ss. 13 & 15--Eviction petition --Dismissed --Respondent was matwali of Musafir Khana --
Evacuee property--One room of Musafar Khana was rented out --Waqaf property was could not
be rented out --Jurisdiction of civil Court --Challenge to -- The appellant made Eviction
Application against respondents for his ejectment from a room situated at first floor in a
Musafirkhana --A room in a Sarai/hotel did not fall within afore reproduced definition of a
building--A Musafirkhana is not distinguishable from a hotel or Sarai --‘Musafirkhana’ would
also found under definition of a hotel --Trial Court, had rightly decided issue of jurisdiction in
negative --Though parties counsel also argued other legal points, since very filing of Eviction
Application was not competent before Rent Controller --Appeal dismissed. [Pp. 90, 91 & 92] A,
C & D
Ref. 2023 SCMR 121, 2000 CLC 1722, 1983 CLC 1330, PLD 1964 (W.P) Lah. 292, 1978
SCMR 91.
Balochistan Urban Rent Restriction Ordinance, 1959 (VI of 1959) --
----S. 2(a) --Building-- “Building” means any building or part of a building let for any purpose,
whether being actually used for that purpose or not, including any land, godowns, outhouses, together with furniture let therewith but does not include a room in a “Sarai”, hotel, hostel or
boarding house. [P. 90] B
Mr. Muhammad Ali Khushnood, Advocate for Appellant.
Mr. Muhammad Qasim Mandokhail , Advocate for Respondent.
Date of hearing: 6.10.2023.
J
UDGMENT
Through this First Appeal from Order filed under S.15 of the Balochistan Urban Rent Restriction
Ordinance VI, 1959 (‘the Ordinance’), appellant has challenged order of the learned Civil Judge -
VIII/Rent Controller Quetta whereby, Eviction Application made by the appellant under S.13 of
the Ordinance was dismissed
2. Facts of the case are that on 25 May, 2022, appellant made an Eviction Application under S.13
of the Ordinance against the respondent. He pleaded that a room at the first floor in the Haji
Abdul Ghaffar Musafirkhana, Kasi Road Quetta was rented out to the respondent on monthly
rental of Rs. 5000/ -. The respondent used to pay the monthly rent regularly, but later, he failed to
pay the monthly rent of the room and defaulted in payment of rent of 28 months. The appellant time and again approached to the respondent for payment of monthly rent of the room but he put
the matter off on lame excuses. The room was rented for residential purpose yet the respondent,
without consent of the appellant, started use of it for commercial purpose. Appellant issued a
legal notice to the respondent, still, the respondent neither paid the outstanding rent of 28 months
nor vacated the room. In the prayer clause, appellant sought vacant possession of the room as
well as recovery of the outstanding rent.
3. The respondent submitted a contesting counter affidavit, in which, he denied the relationship
of landlord and tenant. On such pleadings, the Rent Controller framed following issues.
‘1. Whether the instant application is maintainable in present form?’
‘2. Whether this Court has jurisdiction to entertain the instant application?’
After framing issues, the learned Rent Controller heard arguments and vide impugned order
dated 24 March, 2023, dismissed the Eviction Application.
4. Mr. Muhammad Ali Khushnood, learned counsel for the appellant contends that the Rent
Controller had not the jurisdiction to decide the issue of title; contends that, the Rent Controller
ought to have framed issue with regard to ‘relationship of landlord and tenant’ and then to afford
an opportunity to the parties for leading evidence, nonetheless, the learned Rent Controller
without recording evidence, dismissed the Eviction Application of the appellant. In support of
his application made for condonation of delay, learned counsel states that since the impugned
order is a void order and the respondent has not controverted the facts mentioned in the
application by filing a counter affidavit, therefore, delay in filing of appeal may be condoned.
The learned counsel placed reliance on the following case laws:
Abdul Ghani v. Mst. Shaheen and others 2007 SCMR 834
Ashraf Kiyani and others v. Mst. Hajira Bibi and others 1999 MLD 2821
Hyderabad Development Authority through M.D., Civil Center, Hyderabad v. Abdul
Majeed and others . PLD 2002 SC 84
Jamal Shah v. Azad Government of Jammu &Kashmir through Chief Secretary and 7 others 1991 MLD 1243
Civil Aviation Authority v. Messrs Providence Aviation (PVT.) Ltd. 2000 CLC 1722
Aadil Nadeem Rizvi v. Gohar Siddique and others 2004 SCMR 738
5. Mr. Muhammad Qasim Khan Mandokhail, learned counsel for the respondent states that a suit
for declaration was filed in respect of the Haji Abdul Ghaffar Musafirkhana, in which, this Court has declared the respondent as Mutawali of the entire Musafirkhana vide order and decree dated 26 December, 2022 passed in RFA No. 21/2007. Further contends that a waqf property cannot be rented out, therefore, Eviction Application has rightly been dismissed by the Rent Controller. Further contends that under S.26 of the Balochistan Waqf Properties Act, 2020, jurisdiction of the Civil Court is barred. The learned counsel placed reliance on a case reported as Qudratullah Raisani and another v. Abdullah reported in 2023 MLD 121.
6. Heard. Record perused.
7. The impugned order was passed by the Trial Court on 24 March, 2023. Appellant applied for
certified copy of the impugned order on 12 April, 2023 which was delivered on 13 April, 2023. The appellant has filed the instant appeal on 28 April, 2023. The limitation for filing an appeal under S.15 of the Ordinance from the order of Rent Controller is 30 days. After excluding the time limit of two days in obtaining certified copy of the impugned order, the appeal is barred by limitation of two days. The appeal is accompanied by an application for condonation of delay. In
his application, the appellant has mentioned that the impugned order was announced of 24
March, 2023 whereas, his counsel did not inform him about the order and for the first time, he came to know about the impugned order on 20 April, 2023, so he contacted the clerk of his counsel. The appellant went to the chamber of his counsel but the chamber was found close on 21 April, 2023 to 25 April, 2023 due to Eid- ul-Fitar vacations. After vacations, he went to the
chamber of his counsel on 27 April, 2023 and took the case file alongwith the impugned order and engaged a new counsel. The application is supported by an affidavit of the appellant but the same has not been contested by the respondent through a counter affidavit. It is an established proposition of law that in absence of counter affidavit, the averments, supported by an affidavit, are presumed to be true. The learned counsel for the appellant has rightly placed reliance on the case law reported as Civil Aviation Authority v. Messrs Providence Aviation (Pvt.) Ltd (2000 CLC 1722). The relevant there from is reproduced hereunder:
‘5. It is pertinent to note that the appellant has moved an application for condonation of the delay supported by an affidavit which has remained unchallenged by the respondents. In the aforementioned circumstances, we are constrained to observe that the contents of the affidavit having gone unchallenged are deemed to be true and the delay in preferring the appeal is condoned.’
Therefore, the delay of two days caused in filing of this appeal is condoned.
8. On merits, the appellant made the Eviction Application against the respondents. For the
purpose of this appeal, the relevant in the Eviction Application is reproduced hereunder:
‘3. That in the same context a property a room was rented out to the respondent in Haji
Abdul Ghaffar Musafirkhana, first floor, Kasi Road, Quetta ……..
The appellant made Eviction Application against the respondents for his ejectment from a room
situated at first floor in a Musafirkhana. Under S. 13 of the Ordinance, an Eviction Application
can be filed against a tenant in possession of a building or rented land. The term building has
been defined in S. 2(a), the Ordinance, which reads:
‘“Building ” means any building or part of a building let for any purpose, whether being
actually used for that purpose or not, including any land, godowns, outhouses, together
with furniture let therewith but does not include a room in a “Sarai”, hotel, hostel or
boarding house.’
9. The appellant has sought eviction of the respondent from a room situated at first floor of Haji Abdul Ghaffar Musafirkhana. According to afore reproduced definition of building, a room in a Sarai/hotel does not fall within the afore reproduced definition of a building. A Musafirkhana is not distinguishable from a hotel or Sarai. ‘Musafirkhana’ would also found under the definition of a hotel. Reliance is placed on the case reported as Amir Ali and four others v. Amanullah and three others (1983 CLC 1330). Though a hotel/Sarai by itself is not excluded from the definition
of building but a room in a Sarai/Hotel/Musafirkhana is excluded from the definition of a building. Therefore, a room in a Sarai/Musafirkhana is excluded from the jurisdiction of a Rent Controller. The same proposition came under consideration in the case of Shuja- ud-Din Qureshi
v. Mst. Husan Ara Begum etc . reported in PLD 1964 (W.P) Lahore 292, wherein the Lahore
High Court ruled as under:
‘15. It will be seen that the Ordinance is intended to apply to “any building or part of a
building let for any purpose”, and it is clear that the words “any purpose” would include
the purpose of running the business of a hotel, Sarai, hostel or boarding house in that building. What is being let in such a case is a building and not a room in a hotel of Sarai
etc., and the relationship of landlord and tenant come into existence between the parties
to such letting in respect of the building as such and not in respect of the purpose for which the building is going to be used. This last aspect is clear from the clause in the
definition to the effect “whether being actually used for that purpose or not”. The
exception made in the last part of the definition of the term “building” clearly relates to the letting of a room in a Sarai, hotel etc, and not to the letting of the entire building in
which that room may be situated. To, put it differently, the intention clearly seems to be
to exclude from the purview of the Ordinance the relationship which comes into existence between the proprietor or other person managing a hotel or a Sarai etc., and a person
who hires a room in that Sarai or hotel etc., for occupation as such; but not to exclude
the relationship of landlord and tenant which comes into existence between the owner of the building or any other person entitled to receive rent for that building and the person
who takes on rent that building as a whole or in part, may be for the purpose of running therein a Sarai or a hotel etc. In the present case, Shujauddin Qureshi has not taken on rent a room in a Sarai or hotel etc., and the dispute between the parties does not relate to
any such room; on the contrary, it extends to that building as a whole. The jurisdiction of
the Rent Controller is, therefore, not excluded in such a case.’
The Supreme Court of Pakistan, in the case of Mirza Khan v. Allah Diyaya reported in 1978
SCMR 91 endorsed with the afore annunciation of law and ruled as under:
‘We see no ambiguity whatever about this provision. As only rooms let; by a hotel, hostel,
Sarai have been excluded from the
definition of a building, it would follow that hotels, serais, etc., would fall within the
definition of a building and would, therefore, fall within the purview of the said Ordinance. This was also a view taken by Anwar -ul-Haq. J. (as he then was) in Shuja- ud-
Din Qureshi v. Mst. Husan Ara Begum, etc. (P L D 1964 Lah.292), and we respectfully agree with it.’
As such, the Trial Court, vide impugned order has rightly decided the issue of jurisdiction in
negative. Though parties counsel also argued other legal points, however, since the very filing of Eviction Application was not competent before the Rent Controller, therefore, discussion on such points would not be relevant.
For the foregoing reasons, the appeal is dismissed. The parties shall, however, bear their own
costs.
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