P L D 1999 Quetta 18 (PLP)

(1) Whether there exists relationship of landlord and tenant between the parties? (2) Whether the shop in question reasonably and in good faith required by the applicant for his personal bona fide need and occupation in order to start his own business? (3) Whether the applicant is entitled for the relief claimed for? (4) Relief?

3. After framing of the issues, the respondent filed an application for framing of additional issue on 30-10-1996 stating therein that in paras. (3) and (4) of the Eviction Application, the ground of nuisance has been agitated but no issue was framed regarding nuisance. The application for additional issue was not contested by the appellant. The same was allowed vide Order dated 21-2-1996 by the Rent Controller and applicant was ordered to pay Rs:500 as costs.

4. In support of the Eviction Application, the respondent besides his own statement examined nine witnesses namely A,W.1 Muhammad Younus, A.W.2 Ghulam Mohiuddin, A.W.3 Haji Saleh Muhammad, A.W.4 Kamal Haider, A.W.5 Naseer Ahmad, A.W.6 Umar Badshah, A.W.7 Akhtar Muhammad, A,W.8 Ali Ahmad Kurd, Advocate and A.W.9 Ghulam Fareed Patwari.

5. In rebuttal, the appellant produced five witnesses namely P.W.I Khawaja Naseem, R.W.2 Ghutam'Muhammad, R.W.3 Allah Dad, R.W.4 Naseer Ahmad, R.W.5 Saeed Ahmad Khan, Advocate and appellant got recorded his own statement.

6. After assesarment of the evidence on record, the learned Rent Controller accepted the Eviction Application vide order dated 29-4-1998 and directed the appellant to hand over vacant possession of the shop in dispute. It may be mentioned here that while disposing of the Eviction Application, the learned Rent Controller has given no findings on the issue of nuisance; hence, this appeal against the impugned Order.

7. Syed Ayyaz Zahoor, Advocate for the appellant contended that after execution of the sale agreement dated 20-1-1989 the relationship of landord and tenant came to an end as the landlord received a substantial amount and the Eviction Application has been filed only with the mala fide intention to frustrate the agreement for sale and further that the landlord failed to discharge the burden regarding relationship of landlord and tenant; thus the Rent Controller illegally decided the said issue in favour of the landlord causing prejudice to the appellant. As far as issue of personal requirement is concerned, the learned counsel contended that the landlord failed to prove personal requirement as he failed to give details of the business intended to be started In the premises in dispute. Regarding the Issue of personal requirement, the learned counsel contended that no issue of nuisance was framed nor the same has been pleaded before the Trial Court.

8. Mr. H. Shakeel Ahmad, learned counsel for the respondent, vehemently opposing the arguments of the learned counsel for the appellant, contended that the execution of the sale agreement was denied by the respondent at the very initial stages of the proceedings by filing a replication to the rejoinder. The learned counsel further contended that the said sale agreement was not proved as required under the law; thus, the learned Rent Controller rightly discarded the same. He further argued that even assuming that the agreement to sale was executed between the parties; even then the same does not confer any title on the appellant, as admittedly a suit for specific performance was pending before the Civil Court and unless the title of the .appellant was not determined, he could not deny the relationship of landlord and tenant, Regarding the factum of personal requirement, the learned counsel contended that it was not a requirement of law to give the particulars of the business intended to be started by the landlord and further stated that the landlord had proved the factum of personal requirement through independent evidence. As far as issue of nuisance is concerned, the learned counsel drew my attentiori to the application for framing of additional issue filed-by the respondent on 30-10-1996, and to the Order dated 21-12-1996 passed by learned Rent Controller, whereby the application for additional issue was allowed. The same was not contested by the appellant. The learned counsel further contended that as far as question of nuisance is concerned, the respondent has produced evidence regarding nuisance before the Rent Controller.

9. Adverting to the argument of Syed Ayyaz Zahoor, Advocate regarding issue of relationship of landlord and tenant, the respondent disputed the title of the appellant only on the ground that an agreement to sale was executed between the parties on 20-1-1998 wherein it is mentioned that the respondent landlord has sold the premises in dispute to the appellant-tenant for a consideration of Rs.10,00,000 whereas he has received Rs.8,00,000 and the remaining Rs.2,00.000 shall be paid by him at the time of transfer. It is further averred in the agreement that in case the property Is not transferred in favour of tenant on or before 20-12-1994, the appellant shall be liable to pay Rs.8,00,000 extra to the tenant as fine. In the said agreement there Is no stipulation about the continuation or cessation of the tenancy. It only contains a penal clause that in case the agreement is not honoured, the landlord shall be liable to pay the amount of Rs.8,00,000 as fine besides the actual earnest amount, The arguments of Syed Ayyaz Zahoor, Advocate have no substance that after execution of the agreennept to sale the tenancy between the parties came to an end and the relationship was rightly denied by the appellant, It may be mentioned here that there are a chain of judgments of the Superior Courts that if any agreement to sate Is executed between the landlord and tenant unless the sale is not completed, the relationship of landlord and tenant would not come to an end and the tenant would continue to be so unless there Is no stipulation In the agreement itself, that after execution of the sale agreement, the tenancy would come to an end. As observed hereinabove, in the sale agreement there is no such stipulation that after execution of the same, the agreement would come to an end: It may be mentioned here that though the execution of the agreement was specifically denied by the respondent by filing of replication to the rejoinder despite the same the execution agreement was not tendered in evidence properly as required under the law. Firstly, the same was not confronted to the appellant when his statement was being recorded in the Court. Secondly, the document was not tendered in evidence through R.W.2 Ghulam Muhammad and who is purported to have signed the agreement as a witness. The said document was tendered in evidence through RAV.5 Saeed Ahmad Khan, Advocate who stated to have attested the same inasmuch as the document was not even tendered in evidence by the respondent himself.

10. Mr. H. Shakeel Ahmad, Advocate tried to show that the agreement had been obtained through misrepresentation. He referred to the document Exh.A/29 wherein the property in dispute was transferred in the name of the appellant and his othdr brothers and the said mutation entry was attested on 6-5-1990 whereas Mutation Entry No.149 has been specifically mentioned in the same. The learned counsel tried to argue that the Mutation Entry was attested on 6-5-1990 and the same has been referred to in the agreement to sale executed on 20-4 1989, at the time of execution of agreement to sale, Mutation Entry No. 149 did not even exist. Be that as it may, it would not be appropriate to determine the authenticity or otherwise of the agreement to sell at this stage as it would prejudice either of the parties since a suit for specific performance has been filed before the Court of Civil Judge; the question regarding genuineness of the agreement to sale dated 20-1-1989 is left to the Civil Court. In this regard I am fortified with the view taken in the following case:-- Bore Bibi and others v. Abdul Qahir and others 1996 SCMR 877 In this case a similar question arose. The Hon'ble Supreme Court held as under: "In presence of the suit pending between the parties, it is really difficult for us to determine the genuineness or their effect on the stand taken by the parties. We are, therefore, inclined to leave it for the Trial Court to decide the same. However, the Judge in Chambers of the High Court has taken pain and elaborately discussed the issues and assessed the value of the agreement deed and other documents. He has referred to various authorities in that respect and has come to the conclusion that a tenant cannot be allowed to retain his possession on such agreement till decision of the title by a Civil Court of competent jurisdiction. We do not find any defect with his observations and conclusion."

11. It is worth-mentioning that before the Rent Controller, the respondent through independent evidence proved that he had been receiving rent from the appellant up to the year 1996. In this regard statement of A.W.1 Muhammad Younus, A.W.2 Ghulam Mohiuddin, A.W.3 Haji Saleh Muhammad and A.W.4 Kamal Haider are worth mentioning. A.W.1 stated that he is tenant of the respondent arid has been paying rent to him against valid receipts. He further stated that in his presence, the appellant has many times paid rent to the landlord against receipts. A.W.2 stated that the monthly rental of the premises in dispute is Rs.4,000 and the landlord received rent for the month of January and February, 1996 in the month of November against valid receipts. Further, A.W.3 also stated that in his presence many times, the landlord received rent from the appellant after issuing receipts. A.W.4. Kamal Haider stated that in his presence the appellant received rent for the month of November and December, 1995. There is nothing on record to disbelieve the statements of the aforementioned witnesses. The landlord in his own statement has also stated that he received rent from the appellant for various months against which valid receipts were issued. The counterfoils of the receipt book has been tiled in the lfourt being Exh.A/7 to Exh.A/28 showing therein that the rent receipts were issued to the appellant and carbon copy was retained by him. From the perusal of the rent book, it is revealed that the landlord has been receiving rent from various tenants including the appellant. It may be observed here that denial of relationship of landlord and tenant by the respondents was contumacious and based on mala fides.

12. In absence of any stipulation regarding cessation of the tenancy in the said agreement, the relationship of landlord and tenant between the parties does exist. Moreover, the said agreement does not confer any title on the tenant unless the same is determined by a Court of competent jurisdiction as already observed hereinabove.

13. Reverting to the contention that the factum of personal requirement was not proved by the appellant, Syed Ayyaz Zahoor, Advocate for the appellant contended that the respondent did-not give the particulars of business intended to be started by him, thus, the factum of personal requirement was not proved; suffice it to observe that it is not a requirement of law that the description of the businesses intended to be started in the premises in dispute should, necessarily, be given by the landlord. If the landlord was going to start a new business in the premises in dispute, he need not state the nature of his business either in ejectment petition or in his statement before the Rent Controller. In this regard I am fortified with the view taken in Jurua Sher v. Sabz Ali 1997 SCMR 1062 wherein following observations were made:-- "There is no legal requirement that the landlord in seeking ejectment of the tenant from a commercial premises on the ground of personal and bona fide requirement must disclose the nature of the business which he intended to start in the premises. Similarly, it is also not necessary for a landlord to prove his personal and bona fide requirement of commercial premises that he must possess experience in the trade or business which he intends to set up in the premises after eviction of his tenant. If this argument is accepted, then a landlord, however, genuinely, may require a commercial premises for his personal requirement cannot succeed if he does "not possess experience of a particular business or trade."

14. Mr. H. Shakeel Ahmad, Advocate for the respondent contended that the statement of the respondent was confidence-inspiring regarding his personal bona fide use. It may be mentioned here that the statement of the landlord on oath, if consistent with the application for ejectment and not shaken or disproved in cross-examination is sufficient proof regarding bona fides of the landlord. In the case in hand, the appellant in his statement has stated that he is jobless and has not vacated any other premises nor rented out any premises in the same vicinity. The said portion of the statement of the landlord was not rebutted; thus, the question of personal requirement was independently proved and issue regarding personal requirement was rightly decided in favour of they landlord.

15. Coming to the question of nuisance, Syed Ayyaz Zahoor, Advocate contended that no issue was framed in this regard. As mentioned hereinabove, the contention regarding non-framing of issue is without substance. The issue regarding nuisance was framed by the Rent Controller vide Order dated 21-12-1996. It has come on record that the buses of the appellant picked and dropped the passengers in front of the shop and it has also come on record that the house of the respondent is adjacent to the shop in dispute. Even the respondent and his witnesses have not denied the pick and drop of the passengers from the shop in dispute. The landlord has proved that the passengers are picked and dropped in the morning and evening due to which the front of his house is always overcrowded and it has become difficult for him to use the passage of his house. It may be observed that the act of pick and drop by the respondent itself,1 is a,source of perpetual nuisance as at the time of arrival and departure of the buses, .the front, of the house being over-crowded with passengers would create problems for the respondent and his family members to use the passage to his house. Thus, the issue of nuisance has also been proved by the respondent. Thus, the said issue is decided in affirmative. The said issue was not adverted to by the learned Rent Controller despite overwhelming evidence produced by the respondent. .

16. As a result of the above discussion, I see no merits in the appeal, the same is dismissed. The appellant is given a period of two months to vacate the premises in dispute. Parties are left to bear their own costs. A.A./721/Q Appeal dismissed