2021 PLP 798 (MLD)

ROZI KHAN BARRECH, J.

This judgment disposes of F.A.O. Nos. 59 and 74 of 2018 in which common questions of law and facts are involved.

2. Facts relevant for disposal of instant appeals are that respondent Mst. Sadia filed Eviction Application No.041 2014 before the learned Senior Civil Judge-III Quetta/Rent Controller against the appellants Zahid, Habibullah and others with the averments that applicant is owner/land lady of Shops Nos.1 to 5 measuring 748 square feet, Moti Ram Road, Quetta constructed upon land bearing Khasra Nos.413, 414, 415, 416 and 417 in Mohal and Mouza City Ward No.26, Tappah Urban No.2 vide Mutation Nos. 597, 591, Tehsil City District Quetta (shops in question), which came into her share from the inheritance of her late father's legacy. Shops Nos.1 to 3 bearing Khasra Nos. 413, 414 and 415 were rented out to Good Luck Stationary, Moti Ram Road to appellants Zahid and Abid, shop No. 4 having Khasra No. 416, Ehsan Estate Agency to appellant Habibullah and shop No. 5 bearing Khasra No. 417 i.e. Horabbah Marketing and Maheen Clinic, to one Haji Ahmed Jan on monthly rent of Rs.1500/- per shop commencing from July of each year. While on the back side of the shops in question a small house measuring 1768 sq.ft bearing Khasra No. 412 was in possession of the applicant/respondent, which she gave to her relative who is ready to vacate the same wherein four rooms are constructed which are not enough for accommodation purpose of the children and spouse of the applicant/respondent. As the shops in question were required for applicant's personal residential purpose which are in dilapidated condition and since the applicant had no personal accommodation and she is living in the house of her husband wherein the brothers of her husband also live, therefore the applicant wanted to close the door of the above shops and would convert the same into rooms for residential purpose after some renovation and improvements and inclusion into adjacent backside house.

3. The appellants/tenants contested the application by filing rejoinders to the same, wherein they strongly contested the application on legal as well as factual grounds and taken the plea that the applicant has filed the application with mala fides intention just to pressurize and blackmail the concerned respondents and that the disputed shops are in commercial area and not in residential area; that the applicant is residing in her own house situated at Satellite Town Block No.3 Quetta, therefore, the plea of personal bona fide requirement is not justified; that the respondents are tenants of the applicant for about fourty five years and paying rent regularly and running their different business established for such a long time and earning their livelihood from these shops and if the respondents are evicted from the shops in question on mala fides basis then they will suffer irreparable loss by losing their business forever. Lastly the appellants contended that the eviction application under reply is misconceived, baseless and not maintainable according to law and is liable to be dismissed with cost.

4. The learned Rent Controller out of the pleading of parties framed following issues for determination:

1. Whether tenancy agreement between applicant and respondents is expired?

2. Whether shops in question are required to applicant for her personal need and accommodation?

3. Whether the applicant is entitle to relief claimed for?

4. Relief?

5. After framing of issues, both the parties produced their respective evidence. After hearing arguments from both the parties the learned Rent Controller vide judgment dated 6th October 2018 (impugned judgment) accepted the eviction application filed by the applicant/land lady with direction to the appellants to handover vacant possession of the shops in question to the applicant/land lady within two months after passing of the impugned judgment. Now the appellants have challenged the impugned judgment dated 6th October 2018 passed by the learned Rent Controller under Section 15 of the Balochistan Urban Rent Restriction Ordinance, 1959 (hereinafter "Rent Restriction Ordinance, 1959") by filing the instant appeals.

6. I have heard the learned counsel for the parties and have perused the entire record. The respondent/applicant has pressed the application seeking eviction of the appellants mainly on the ground that the shops in question being required by the respondent/applicant for her personal use, thus the respondent/applicant wants to close the door of the above said five shops and would convert the same into rooms for residential purpose after some renovation and improvements and inclusion into the adjacent back house which belong to her.

7. The appellants have raised objection in their reply that the applicant/land lady has not obtained any permission/approval from the competent authority for conversion of the disputed property from commercial to residential.

8. Under Section 11 of the Ordinance a landlord cannot convert a residential building into a non-residential building without the written permission of the Rent Controller. From plain language of this section it can be gathered that there is no statutory bar or restriction under the law for conversion of a non-residential building into a residential house. Reliance in this regard is placed in the case titled as Sultan Muhammad Sabir v. Shaukat Mehmood and 7 others 1992 MLD 1962 and in the above judgment this court also has relied upon the reported judgment of the Hon'ble Supreme Court in the case of Munir Malik v. Sabir Hussain reported in 1989 SCMR 193 wherein it was held that: "At the first instance it would be imperative to examine the substantive provisions of statute governing the proceedings i.e. Balochistan Urban Rent Restriction Ordinance VI of 1959 with a view to understand whether a legal bar has been imposed for converting of a commercial building into non commercial. In this behalf section 11 of the Ordinance VI of 1959 lays down that no person shall convert a residential building into a non-residential building except with the permission in writing of the Controller. From plain language of this section it can be gathered that there is no statutory impediment in conversion of a non-residential building into a residential one."

8. The dictum laid down in the above quoted judgments make it clear that the landlord/landlady would not be obliged to seek the order of Rent Controller for converting a non-residential premises into residential one.

9. Now reverting back to the question whether respondent/land lady had succeeded in proving good faith and bona fides for occupying the shops in question for her own use. The landlady also produced AW-I Raz Muhammad and AW-2 Khan Muhammad who corroborated the statement of the attorney of landlady namely Abdul Qadir as well as the ground taken by the landlady in her application. The applicant/landlady in my view adduced cogent and worthy of credence evidence to substantiate her version. Attorney for the applicant/landlady explain her genuine bona fide and personal need in simple straightforward and convincing manner. The witnesses produced by applicant/landlady stood firm to the test of cross-examination and nothing beneficial could be extracted in spite of numerous searching questions.

10. It is well-settled by now that where the statement of landlord on oath was quite consistent with his averment made in the ejectment applications, neither his statement was shaken nor anything was brought in evidence to contradict the statement that would be considered sufficient for acceptance of the ejectment application. In this regard we are fortified by the dictum laid down in case titled Juma Sher v. Sabz Ali 1997 SCMR 1062 wherein it was held as follows: "Sole testimony of the landlord is sufficient to establish his personal bona fide need of premises. Where the statement of landlord on oath was quite consistent with his averments made in the ejectment application and neither his statement was shaken nor anything was brought in evidence to contradict his statement and tenant had not even stepped in the witness-box to controvert the testimony of the landlord. Rent Controller was fully justified in accepting the evidence of the landlord and ordering eviction of the tenant." Reliance is also placed in the case titled as Muhammad Shoaib Alam and others v. Muhammad Iqbal and others (2061 SCMR 903) wherein it was held by the Hon'ble Supreme Court as under: "That statement of landlord on oath, if consistent with the application for ejectment and not shaken in cross-examination or disproved in rebuttal is sufficient to prove that requirement of landlord was bona fide." Reliance is also placed on the case titled as Muhammad Hayat v. Muhammad Miskeen (DECD) through LRs and others (2018 SCMR 1441).

11. I am of the considered view that under the provisions of Articles 23 and 24 of the Constitution of Islamic Republic of Pakistan, 1973, the right of property being a fundamental right is protected. Admittedly, the right of ownership is superior to the right of tenancy. Thus, the appellants, being inferior of status regarding the utilization of shops in question, cannot determine the sufficiency or insufficiency. The findings of the Rent Controller regarding personal requirement of the respondent are based on elaborate, careful and correct appraisal of evidence and do not suffer from any misreading of the evidence. In view of what has been discussed above, these appeals have no merits and the same are dismissed. However, the appellants are directed to vacate the shops in question within a period of two (02) months from the date of pronouncement of this judgment, subject to payment of monthly rent. MQ/140/Bal. Appeal dismissed.