2012 Y L R 316
[Balochistan]
Before Ghulam Mustafa Mengal, J
HIDAYAT ULLAH PEERZADA ---Appellant
Versus
KHALID ZA MAN ---Respondent
F.A.O. No.95 of 2010, decided on 23rd November, 2011.
West Pakistan Urban Rent Restriction Ordinance (VI of 1959) ---
----Ss. 13 & 15 ---Ejectment of tenant was sought on the ground of personal bona fide need of
landlord as well as h is son; who were jobless and were not occupying any area in which the
shops in question were situated ---Evidence brought on record reflected that other properties
owned by the landlord, were not vacant ---No evidence was brought on record by the tenant to
establish that son of landlord was not jobless; that shop in question was not required by the
landlord for his personal bona fide use and that said shop was not suitable for personal use
and intended business ---Law did not impose any bar on a person to est ablish a new business
despite the fact that he was running another business ---Landlord could choose any of his
property for his personal use ---Second eviction application was maintainable on any of the
grounds provided by S.13 of West Pakistan Urban Rent R estriction Ordinance, 1959, if
became available to the landlord subsequently ---Where there was no mala fide on the part of
the landlord, his application could not be rejected on the ground that he had filed eviction
application on one of the grounds provid ed by S.13 of West Pakistan Urban Rent Restriction
Ordinance, 1959 and failed to prove the same ---Landlord had proved that shop in question
was required by him for his personal as well as for use and occupation of his son ---Appeal
was dismissed.
F.K. Ira ni and Co. v. Begum Feroze 1996 SCMR 1178 ref
Dr. Arbab Ali Ahmed v. Sarwar Khan 2000 MLD 87 rel
Zahid Malik for Appellant
H. Shakeel Ahmed and Ayaz Sawati for Respondents.
Date of hearing: 11th November, 2011.
JUDGMENT
GHULAM MUSTAFA MENGAL, J .---This appeal under section 15 of Balochistan Urban
Rent Restriction Ordinance No.VI of 1959 has been directed against the order dated 29th
October, 2010, passed by the learned Civil Judge -III/Rent Controller, Quetta whereby the
eviction application file d by the respondent against the appellant has been allowed and he
was directed to hand over the vacant possession of the Shop No.4 -13/7(7) situated at Abdul
Sattar Road, Quetta to the respondent No.1 within four months.
2. Briefly stated facts of the cas e are that the appellant is tenant in Shop No.4 -13/7(7),
situated at Abdul Sattar Road, Quetta at a monthly rent of Rs.1, 000 per month. In the year
1998 respondent filed an eviction application against the appellant and his son namely
Ameenullah on the gr ound that the shop in question is required reasonably for demolition, re -
construction and personal bona fide use and occupation, as after construction of new building
he wants to start the business of shopping centre/Mall and business of hotel in the said
premises. The application was contested. It appears from the record that initially the eviction
application was allowed on 31st March, 1999. The appellant being aggrieved by the said
order filed an appeal hearing no. F.A.O. Nos.47 and 49 of 1999 before thi s Court, which was
allowed, vide order dated 8th November, 1999 and eviction application was dis -missed. The
respondent filed Civil Petition bearing No.7 and 8 -Q of 2000 for leave to appeal before the
honourable Supreme Court of Pakistan, which was dismiss ed vide order dated 21st
September, 2004.
3. The respondent again instituted an eviction application on 18th November, 2008
under section 15 of Balochistan Urban Rent Restriction Ordinance -VI of 1959 against the
appellant and one Dr. Muhammad Akram, cont ending therein that he is owner and landlord
of Shops No.4 -13/ 7, (8, 9 and 10) and Shop No.4 -13/7(7), situated at Abdul Sattar Road,
Quetta. Shops No.4 -13/7 (8, 9 and 10) are in occupation of respondent No.1 (Dr. Muhammad
Akram) at a monthly rent of Rs.3, 000 per month while Shop No.4 -13/ 7(7) is in occupation of
respondent No.2 (appellant) at a monthly rent of Rs.1,000 per month, payable on the 15th of
every succeeding month.
4. It has further been contended that the shops in occupation of respondents ar e
reasonably and in good faith required by the applicant for his personal use of business as well
as for his son namely Masood Zaman. Consequently the appellant as well as respondent No.1
(Dr. Muhammad Akram) was approached to hand over the vacant possessi on of the shops,
but they refused to do the needful, hence, on these facts and grounds second eviction
application was filed by the applicant/respondent.
5. Both the respondents in the eviction application were served and they by means of
their rejoinder s contested the eviction application.
6. Out of the pleadings of the parties learned Civil Judge -III/Rent Controller, Quetta,
framed the following issues: --
"(1) Whether the application of the applicant is not maintainable in view of legal objection
"A" "B" and "C", raised by the respondent?
(2) Whether the shops in question are required to the applicant for his personal bona fide
use?
(3) Relief?
7. The respondent/landlord in support of his claim in the light of above -mentioned issues
filed sworn in affidavits of two witnesses namely Masood Zaman and Abdul Manan as well
as filed his own duly sworn in affidavit in support of his claim. In rebuttal the appellant also
filed sworn -in affidavits of two witnesses namely Zafar Ullah and Naqib Ullah and a lso filed
his own duly sworn in affidavit. The learned Rent Controller after evaluating the evidence on
record and hearing the learned counsel for the parties came to the conclusion that since the
applicant/ respondent has succeeded to establish his case t hrough evidence, as such, the
eviction application was allowed vide order dated 29th October, 2010 and appellant was
directed to hand over the vacant possession of shop in question to the respondent within four
months, hence this appeal.
8. Mr. Zahid Mal ik, learned counsel for the appellant contended that the learned Rent
Controller has not appreciated the evidence in its true perspective as the landlord/applicant
has failed to establish his bona fides regarding his personal as well as his son's need and
requirement. He further contended that mala fides of the landlord/applicant was reflected by
his conduct as the issue of personal requirement was decided in the previous litigation, as
such, instant application cannot be filed on the same ground. He furthe r contended that
appellant through reliable evidence proved that the applicant/ respondent is not a jobless and
he has numerous other commercial buildings suitable for his business, but he mala fide
intention not only concealed but denied, therefore, the e viction order is liable to be set aside.
9. On the other hand Messrs H. Shakeel Ahmad and Ayaz Khan Swati, learned counsel
for the applicant/ respondent, contended that respondent No.1 Dr. Muhammad Akbar has
already vacated the shops and handed over the possession of same to the
applicant/respondent. He further contended that there is no vacated shop suitable for purpose
of departmental store and it is the choice of the landlord/respondent to choose the suitable
premises for his business. Learned counsel for the landlord/respondent relied on case of F.K
Irani and Co. v. Begum Feroze (1996 SCMR 1178).
10. I have heard the learned counsel for the parties and have also perused the record of the
case. Admittedly, the applicant/respondent previously filed an eviction application, seeking
eviction of the appellant and his son from the shop in question on the ground that shop in
possession of appellant and Dr.Muhammad Akram are required reasonably for demoli -tion,
re-construction and personal bona fide use and o ccupation, as after construction of new
building he wants to start the business of shopping center/mall and business of hotel in the
said premises. The record reflects that the application was allowed by the Rent Controller.
However, the order was set asid e by this Court in appeal. Whereafter petition for leave to
appeal was filed by the applicant/respondent before the honourable Supreme Court but the
same was dismissed vide order dated 21st September, 2004. Now the landlord/ respondent
sought the eviction of the appel -lant from the shop in question on the sole ground that the
shop is required by him for his personal as well as for his son namely Masood Zaman's bona
fide use and occupation.
11. The applicant/landlord as well as his witnesses claimed that t he shops in question are
required to the landlord/ applicant for his personal as well as his son's bona fide use as the
son of landlord/ applicant is jobless and after vacation he wants to start business of
departmental store, because the disputed shops ar e situated in commercial area and there is no
other suitable place with them for business. A.W.11. Masood Zaman in cross -examination
admitted that: --
12. The applicant Khalid Zaman in cross -examination stated that he is in possession of
shop situated in the corner and voluntarily stated that in the said shop his agent namely Sher
Muhammad is doing business of blankets. He further admitted that:
13. Adverting to the statements of R.Ws. and the respondent/tenant. R.W.1 Akram Jamil,
R.W.2 Zafrullah, R.W.3 Naqeebullah and respondent/tenant deposed about the business of
birds doing by the landlord/applicant in Dubai, Qatar and Pakistan and gave the detail of
properties situated at Junction Chowk, Liaquat Bazar, Prince Road and Moti Ram Road,
owned by the appl icant. However they failed to prove the same.
14. The sole ground on which the eviction of the tenant was sought in the instant case was
bona fide personal requirement of the landlord/respondent as well as his son namely Masood
Zaman, who is jobless and are not occupying any area in which the shops in question are
situated, for the purposes of business of departmental store. The appellant challenged the
claim of the landlord/ respondent on two grounds; firstly, that the son of the applicant namely
Masood Zaman is not jobless and secondly, that the applicant/landlord has number of other
properties in the same vicinity and no reason has been stated for selecting of shops in
question for his personal as well as for his son's bona fide use. The evidence brough t on
record reflects that the properties owned by the landlord/applicant are not vacant; that no
evidence was brought on record to establish that the son of the applicant is not jobless; that
the shop in question is not required to the applicant for his pe rsonal bona fide use and that the
said shop is not suitable for his personal use and business of departmental store.
15. The law does not impose any bar on a person to establish a new business despite of
the fact that he is already running another busine ss. Similarly, it is settled law that it is the
choice of the landlord to choose any of his property for his personal use. It is also settled that
law does not bar filing of second eviction application if subse -quently any ground provided
by section 13 of Balochistan Urban Rent Restriction Ordinance, 1959 becomes available to
the landlord. For such view, I am supported by the judgment of this Court 2000 MLD 87 (Dr.
Arbab Ali Ahmed v. Sarwar Khan).
16. In this case, I am unable to find out any mala fide on the part of the landlord/
applicant and the application of the landlord/ applicant cannot be rejected on the ground that
previously he had filed eviction application on one of the grounds provided by section 13 of
the Balochistan Urban Rent Restriction Or dinance, 1959 and failed to prove the same.
17. Thus, having regard to the discussion made hereinabove, I am of the view that the
respondent/landlord has proved that the shop in question is required by him for his personal
as well as for use and occupati on of his son. Resultantly, the appeal finds no merits, which is
dismissed, with no order as to cost.
H.B.T./156/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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