2010 Y L R 2083
[Quetta]
Before Mrs. Syeda Tahira Safdar, J
AMANULLAH and another ---Appellants
Versus
ROHI MUHAMMAD ---Respondent
F.A.O. No.43 of 2008, decided on 13th April, 2010.
West Pakistan Urban Rent Restriction Ordinance (VI of 1959) ---
----Ss. 2(c), (i), 13(2)(i), (3)(a)(ii) & 15 ---Ejectment of tenant on grounds of default in
payment of rent and bona fide personal requirement ---Relationship of landlord and tenant ---
Appeal to High Court ---Case of respondent/landlord was that he had purchased shop in
question through registered sale -deed from its p revious owners and appellant being existing
tenant was informed about said change ---Landlord raised demand for vacant possession of
shop and on request of tenant six months time was given to him 1 subject to payment of rent,
but tenant had failed to pay th e rent ---Rent Controller on basis of evidence on record had
come to the right conclusion that relationship of landlord and tenant existed between the
parties, while tenants had failed to pay the rent of shop which was required by the landlord
for his perso nal bona fide use and occupation ---Tenants with mala fide intention denied the
title of landlord depriving landlord from payment of rent for which he was legally entitled ---
Sufficient evidence was available on record establishing bona fide requirement of l andlord in
respect of shop in question --Rent Controller on basis of evidence on record had rightly found
that relationship of landlord and tenant existed between the parties; tenants had failed to
establish any legal title in respect of shop in question in this favour ---Landlord had fully
proved default in payment of rent by the tenant and that landlord required shop in question
for his bona fide personal need ---Findings of Rent Controller based on record, were upheld
with modification that landlord was ent itled for recovery of rent from the tenant till recovery
of possession of shop in question by the landlord ---Tenants were directed to be evicted forth -
with from the shop in question.
Basharatullah for Appellants.
Kamran Murtaza for Respondents.
Date of hearing: 15th October, 2009.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J .---The appellants while praying for setting aside of
judgment made on 19 -8-2008 by Civil Judge IV / Rent Controller, Quetta, whereby the
application was allowed and order was mad e for eviction of them from shop in question
within two months, further ordered for payment of arrears of rent amounting to Rs.216,000 to
the respondent/ applicant, asserted that the trial Court has picked and choosed the issues to
make deliberation, while the Court has no jurisdiction to struck off or overruled the issues
earlier framed. The trial Court unilaterally decided issue No.1 in favour of respondent
/applicant. Despite the fact that there is no evidence about existence of relationship of
landlord and tenant between the parties the trial Court comes to the wrong conclusion.
Further the trial Court has failed to consider the version taken by appellant No.2. Moreover,
under section 13 of the Ordinance the Rent Controller is not vested with powers to d irect
payment of claimed arrears or future rent.
Learned counsel for the parties are heard and record is perused.
As per record respondent/ applicant filed application under section 13 of Balochistan Urban
Rent Restriction Ordinance -VI of 1959, wherein it was his case that he being owner of shop
in question, purchased by him from previous owners namely Zai Hassan and Khalid Hassan
through registered sale -deed executed on 3 -11-2004, on completion of sale respondent
No.1/appellant No.1 being tenant therei n was informed about this change by said vendor
landlord Zai Hassan.
It is further his case that as he required said shop for his personal need, thus raised demand
for vacant possession of it, while on request of respondent No.1/ appellant No.1 six month s
time was given to him, subject to payment of rent. But respondent No.1 appellant No.1
proved himself to be bad paymaster and troublesome tenant, failed to. pay the rent from May,
2005 to October, 2005. Further, the shop is also required for his personal need. He prayed for
eviction of respondent No.1/ appellant No.1 and handing over of vacant possession of shop in
question.
The case was contested by the respondents/appellants, by filing separate replies. It is to be
noted that initially the application was filed only against appellant No.1 and on filing of his
reply wherein he specifically contested the title of applicant/ respondent and asserted that
shop in question is in possession of respondent No.2/appellant No.2, whereupon he was made
party to the case and impleaded as respondent No. 2 through order, dated 18 -9-200¢. It is
contention of respondent No.1/appellant No.1 that the shop in question was in possession of
respondents / appellants and Abdullah Khan their brother, which was initially in name o f
Sardar Ali Muhammad, later on mutated in name of Masooda Hassan on 5 -5-1982, while a
sale agreement was effected between them and owner Mst. Masooda on 19 -6-1996, whereby
the property was sold to them in consideration of Rs.140,000 out of which an amount of
Rs.80,000 was paid as advance, remaining amount of Rs.60,000 was agreed to be paid at the
time of effecting of mutation in their favour. It is their contention that applicant/present
respondent and legal heirs of Mst. Masooda stealthily entered into tr ansaction and mutated
the property in their name, rather they were bound to mutate the property in. their
(appellants') name. As per respondent No.2/ appellant No.2 the shop in question is in his
possession, while respondent No.1/ appellant No.1 has no con nection with shop in question,
which is purchased by him on 19 -6-1996 from one Masooda Hassan, agreement was
executed, while Rs.80,000 was paid and remaining Rs.60,000 would be paid at time of
mutation. The legal heirs of Mst. Masooda were bound to mutate property in his name, but
they stealthily entered into transaction with the applicant. Further he has already filed a suit
seeking specific performance and cancellation of mutation entries and sale, which is still
pending before the Court of Civil Judge -II, Quetta.
The perusal of record reveals that initially issues were framed on 7 -3-2006, additional issue
was framed on 18 -5-2006, thereafter, issues were framed on 29 -11-2006, thereafter, through
order dated 30 -8-2007 issue relating to existence of relati onship of landlord and tenant was
refrained. After completion of evidence, the case was decided through order made on 19 -8-
2009 by the trial Court presently impugned before this Court, whereby eviction of the
respondents/appellants is ordered along with di rection for payment of rent. The appellants are
aggrieved of this order thereby preferred present appeal.
In present case the respondent/ applicant claimed his title as landlord, being purchaser of
property in question from previous owners namely Zai Has san and Khalid Hassan in year
2004, while further claimed respondent No.1 being their tenant therein. The respondents/
appellants on the other hand denied title of the applicant/respondent being owner though they
admitted to be in possession of property in question, but they denied to be tenant of
respondent/applicant. According to them appellant No.2/ respondent No.2 along with his
bother Abdullah purchased property in question from one Masooda Hassan, the previous
owner and mother of said Zai Hassan and K halid Hassan in year 1996, the sale price was not
paid completely, due to which property was not mutated in their names. Thus keeping in view
the pleadings of the parties the first issue which was required to be decided is the existence of
relationship of landlord and tenants between the parties, irrespective of title of ownership. As
determination of ownership does not fall within the purview of Ordinance VI of 1959, rather
existence of relationship of landlord and tenant is the basis of proceedings under this
Ordinance.
Section 2(c) of Balochistan Rent Restriction Ordinance of 1959 defines "landlord" as: ---
"Section 2(c) "landlord" means any person for the time being entitled to receive rent
in respect of any building or rented land whether on his own account or on behalf or
for the benefit of any other person, or as a trustee, guardian, receiver, executor or
administrator for any other person, and includes a tenant, who sublets any building or
rented land in the manner hereinafter authorized and every person from time to time
deriving title under a landlord."
While clause (i) of section 2 of the Ordinance VI of 1959 states term "tenant" as under: ---
"Section 2(i) "Tenant" means any person by whom or on whose account rent is
payable for a building or rented land and includes (a) a tenant continuing in
possession after the termination of the tenancy in his favour and (b) the wife and
children of a deceased tenant, but does not include a person placed in occupation of a
building or rented land by its te nant, unless with the consent in writing of the
landlord, or a person to whom the collection of rent or fee in a public market, cart -
stand, or slaughter -house or of rents for shops has been framed out or leased by a
municipal, town or notified area committ ee, or by the Corporation of the City of
Lahore or by the Lahore Improvement Trust or any other Improvement Trust; and"
Keeping in view the same a person may be a landlord even if he is not owner of the property,
but he must be entitled to receive the r ent.
As such now the burden is upon the person who is asserting himself to be the landlord of
property in question and occupier of the same as his tenant therein. Thus the onus of this
issue lies on the respondent/applicant to prove his title being landl ord of the property in
question and appellants/respondents being his tenants therein. The learned trial Court while
discussing this issue mostly discussed the material related to ownership of property in
question and came to the conclusion that as the resp ondents/appellants were tenants of
previous owners, thus after purchase of shop in question they become tenants of
applicant/respondent. In present case too sale is effected between the previous owners and
respondent/applicant, who claimed himself to be ow ner and landlord of shop in question,
while on the other hand the appellants/respondents are denying the title of the
respondent/applicant on occasion of purchasing the shop in question from predecessor -in-
interest of the previous owners. Now the burden re sts on the respondent/applicant to establish
his title as landlord apart from his ownership. Though he has contended that appellant No.1/
respondent No.1 paid rent to him from December 2004 to April, 2005, but thereafter, he
failed to pay the same. In this respect he produced oral evidence to the effect that
respondent/applicant along with A.W.3 and A.W.5 went to shop in question with previous
owner Zai Hassan, who told Amanullah/appellant No.1 about change of title, while it was
agreed between applicant/re spondent and respondent No.1/appellant No.1 that he would
vacate the shop within six months and pay rent at the rate of Rs.6000. Despite these
assertions no rent receipt is produced, rather as per cross -examination to his statement as he
rented the shop te mporarily, as such no rent receipt is produced in the court. Though the
respondent/applicant has not produced any receipt, nor as per his evidence this fact is
established that he ever received rent from any of the appellant/respondent. But this is an
admi tted position that the appellants/ respondents were in possession of shop in question
when said sale transaction was effected between the respondent/applicant and previous
owners, while their status was of a tenant. Though they have asserted that the prede cessor in
interest of Zai Hassan and Khalid Hassan namely Mst. Masooda Hassan agreed to sell shop in
question in 1996 to them, while received an amount of Rs.80,000 out of total sale
consideration of Rs.140,00Q, the remaining amount was to be paid at the t ime of effecting of
mutation. It may be so, but their status of tenant remains until finalization of said sale
transaction, whereafter ownership passes on them. It is an admitted position that the alleged
sale transaction never finalized. It is further and admitted fact that Mst. Masooda's successor
in interest sold property in question to the respondent/ applicant, who due to this change of
ownership stepped into shoes of the previous owners, thus attained status of landlord, while
the appellants/responden ts being occupants of shop in question become tenant of new
owners. Their tenancy rather tenancy of appellant No.1/respondent No.1, the person who is in
physical possession of shop in question never expired. Their (appellants') adverse title is not
require d to be proved in present proceedings; rather they have to approach court of competent
jurisdiction in order to establish their legal title/ownership. During course of arguments
counsel for the respondent/ applicant produced copy of judgment made on 30 -7--2009 by
Civil Judge -II, Quetta, in case titled as Habibullah and Abdullah v. Zai Hassan and others.
This suit was filed by appellant No.2 and his brother against the previous owners and
respondent/applicant for declaration, specific performance of agreemen t dated 19 -6-1996,
cancellation of mutation entry in favour of Roohi Muhammad and i njunction. The suit is
dismissed by the trial Court through said judgment being not established. Admittedly the
respondent/applicant has purchased the shop in question, whic h is also entered in his name in
revenue record. Legal notice was admittedly issued to appellant No.1/ respondent No.1, who
is admittedly in possession of shop in question. The change in title was brought into
knowledge of them by issuing legal notice on 2 6-9-2005. This notice was replied by the
appellant No.1/respondent No.1 through reply, dated 12 -10-2005, wherein he claimed himself
to be tenant of Abdullah Khan, his brother. The status of the appellant No.1 in shop in
question was surely of a tenant, thu s in case of change of ownership/landlord, their position
as tenant in no way is changed. Even in view of judgment dated 30 -7-2009 they have failed to
establish the contrary.
In view of above discussion, the appellants with mala fide intention denied the title of the
respondent/applicant thus deprived him from payment of rent for which he was legally
entitled. Further sufficient evidence is on record establishing his bona fide requirement of
shop in question. The trial Court has come to the right conclusi on that the respondent/
applicant has established his case.
From perusal of record, it is observed that issues were framed four times and at time of
writing of judgment the trial Court chose only three issues being the material one and gave
findings on t hem. The appellants though raised ground in instant appeal that the court has no
jurisdiction to strike off or overruled the issues earlier framed by the court without dilating
upon the same. It may be correct to some extent, but as per Rule 5 of Order IV, C.P.C. the
court has the powers to amend and strike out issues or frame additional issues before passing
of a decree. It is to determine the matter in controversy between the parties. In present case
issues were framed four times, the perusal of these iss ues reveals that most of them were not
properly framed. The trial Court rightly at the time of deciding the case select the issues
which relates to the actual controversy between the parties, which requires decision. There
seems to be no illegality in the same.
In view of above discussion the trial court though have come to the right conclusion that there
exists relationship of landlord and tenant between the parties, while the
appellants/respondents failed to pay the rent and the shop in question is requ ired for his
personal bona fide use and occupation, thus liable to be evidence. As far as direction for
payment of rent is concerned, the appellants have specifically challenged the same.
According to them the trial Court decided that default is committed collectively by them from
May, 2005 and onwards, but no such issue was framed, the findings given on the same are
beyond the scope of the pleadings. As per main eviction application the respondent/ applicant
claimed respondent No.1/ appellant No.1 to be ba d paymaster, thus failed to pay rent w.e.f.
May, 2005 to October, 2005. The trial Court framed specific issue to the effect that whether
the respondents have committed default in payment of rent from May, 2005, onwards. As it
has been held that relationshi p of landlord and tenant exists between the respondent/applicant
and appellant No.1/ respondent No.1, while appellant No.2/ respondent No.2 has failed to
establish any legal title in his favour and also that he is in possession of shop in question and
as there is specific issue of non -payment of rent, which is also decided in affirmative, thus in
the circumstances the Rent Controller was very much empowered to grant relief in respect of
payment of rent, which he did, there seems to be no illegality in the s ame to this extent.
In view of above discussion, the appeal being without merits thus liable to be dismissed. The
judgment of the trial Court made on 19 -8-2008 is hereby upheld, with amendment that the
applicant Roohi Muhammad is entitled for recovery of rent from appellant No.1/respondent
No.1 namely Amanullah w.e.f. May, 2005 till recovery of possession of shop in question at
the rate he was paying rent to previous owner. The appellants are directed to be evicted
forthwith from shop in question.
No or der as to cost.
H.B.T./62/Q 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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