1991 PLP 1471 (SCMR)

ABDUL HAFEEZ NIEMON, J.‑‑This petition is directed against the consent order, dated 9‑5‑19'Nl, passed by the High Court of Balochistan in Appeal No.12 of 1990, whereby the learned Judge dismissed the appeal as not pressed on the basis of such statement made by the appellants therein (respondents 5 to 9 in this petition). The relevant facts arc that after the death of her husband Muhammad Akbar, respondent No.1 Mst. Bibi Khorjan and her daughters respondents 2, 3 and 4 became the owners and land‑ladies of the shop bearing Municipal No.1‑13/1, situated at Sooraj Ganj Bazar, Quetta, of which petitioner Salahuddin was the tenant. Besides the said shop occupied by the petitioner, respondents land‑ladies owned other adjacent properties including shops which were all constructed after the great earthquake of 1935 and were in dilapidated condition. The respondents‑land‑ladies in order to make improvements of their properties, therefore, wanted to demolish tile shop in occupation of the petitioner and other adjacent properties and construct a hotel thereon providing for store on the ground floor, restaurant on the first floor and residential rooms on the second floor and got such a plan for constructing the hotel approved from the Quetta Municipal Corporation and also obtained a permit therefor. The landladies respondents 1 to 4, accordingly, riled an application seeking eviction of the petitioner Salahuddin and respondents 5 to 9 herein who were occupying Khokhas beside the said Shop No.1‑13/1, which were alleged to be a part of the main shop but were unauthorisedly sublet to the said respondents without the consent of the landladies, and on the ground that they required the premises in good faith as they wanted to demolish the same and construct a hotel thereon and after reconstruction they bona fide required the new building in good faith for their own use and the use of husband and son of respondent‑2 Mst. Bibi Sabira with whom they were all living, and that the said husband and son of Mst. Bibi Sabira, namely, Abdul Ghaffar and Abdul Jabbar respectively, would carry on the business of running the hotel. The eviction application was contested by the petitioner Salahuddin and the respondents 8 and 9 who, in their written statements denied the grounds and alleged that the eviction application had been filed mala fide. It was further alleged by the petitioner Salahuddin that the Khokhas were constructed on the land of the Municipal Committee by the then tenant of the previous owner Seth Yahya Bhai and tile respondents in occupation of those Khokhas were his tenants and denied subletting. On the above pleadings of the parties learned Rent Controller framed the following issues:‑‑ (1) Whether the application is bad for misjoinder of respondent No.2? (2) Whether the applicants require the shop in question, reasonably and in good faith for demolition and reconstruction? (3) Whether the applicants require the shops after reconstruction for their personal use and occupation? (4) Relief? On the issue No.1 the Rent Controller decided issue No.1 in the negative and held that there was no misjoinder. On issue No.2 he gave the finding in favour of the landladies and held that they had proved their bona fides in requiring the premises for demolition and reconstruction and had sufficient funds at their disposal for constructing the hotel and that there was no convincing evidence in rebuttal to prove mala fides on the part of the land‑ladies for demolition and reconstruction. The learned Rent Controller decided issue No.3 also in favour of the landladies respondents and held that they had successfully established their bona fides in requiring the premises for their own use as pleaded, and in this connection also took note of the statement made by one Abdul Ghaffar, attorney of the landladies, undertaking to provide shops in the new building to the respondents in occupation of the Khokhas and also of the statement made by the petitioner stating that if the construction of the proposed building was made in accordance with the map and he was provided shops in the basement area he was ready to vacate the shop in question. Thus, on the above findings, the learned Rent Controller allowed the eviction application and directed ejectment of the petitioner and the respondents 5 to 9 in occupation of the Khokhas. The order of the Rent Controller was thereafter challenged by the petitioner Salahuddin before the High Court of Balochistan in an appeal being F.A.O. No.1l of 1990, and by the respondents 5 to 9, in occupation of Khokhas, in F.A.O. No.12 of 1990. In the High Court respondents 5 to 9 in F.A.O. No.12 of 1990 made a statement that if they were given shops in the basement of the new building in lieu of, their Khokhas as per their statement earlier recorded by the Court on 29‑4‑1990. they would not press the appeal, and the learned Judge in the High Court accordingly dismissed their appeal as not pressed by the following order:‑‑ "IN THE HIGH COURT OF BALOCHISTAN QUETTA. BEFORE: MR. JUSTICE MUNAWAR AHMED MIRZA, J.‑‑ FA.O. NO. 12 OF 1990.

1. Muhammad Ayub,

2. Muhammad Qayyum, 3.Muhammad Babar sons of Muhammad Ismail, occupants of Khokha bearing No.1‑13/1(a) Bohra Gali, Quetta. 4.? Muhammad Yaqoob, son of Muhammad Ismail occupant of Khokha bearing No,.13/1‑B Bohra Gali, Quetta. 5? Abdur Rahim, son of Abdul Ghaffar Kashmiri, occupant of Khokha No.1‑13/1‑C, Bohra Gali, Quetta???.Appellants. versus

1. Mst. Bibi Khor Jan widow of late Muhammad Akbar,

2. Mst. Bibi Sabira,

3. Mst. Bibi Haleema,

4. Mst. Mumtaz Begum daughters of late Haji Muhammad Akbar all residents of Killa Kansi, Quetta ??? Respondents APPEAL UNDER SECTION 15 OF BALOCHISTAN URBAN RENT RESTRICTION ORDINANCE VI OF 1959 AGAINST THE ORDER OF DATED 29‑11‑1989 PASSED BY CIVIL JUDGE?II/CONTROLLER QUETTA. ORDER 9‑5‑1990.

1. Muhammad Ayub appellant No.1 for himself and attorney for appellants 2 to5.

2. Abdur Rahim appellant No.5 present.

3. Mr. Iftikhar Muhammad Advocate for all appellants present.

4. Haji Abdul Ghaffar, attorney for respondents.

5. Mr. Tariq Mahmood, Advocate for respondents. Mr. Iftikhar Muhammad learned counsel for appellants submits that in view of the statement of appellants recorded by this Court on 29‑4‑1990 and three categorically assurance given by respondents to restore them three shops in the basement in lieu of KHOKHAS in their occupation present appeal is not pressed. The appeal is therefore dismissed as not pressed. However, appellants to vacate the Khokhas as undertaken by them. They are granted time upto 31st July, 1990 for said purpose. Appeal disposed of in the above terms with no orders as to costs. Sd/‑ MUNAWAR AHMED MIRZA, J." Similarly, petitioner Salahuddin in his Appeal No. FAO 11 of 1990 also entered into compromise with the respondents landladies and accordingly his appeal was also disposed of by the learned Judge in the High Court by the following order:‑‑ "IN THE HIGH COURT OF BALOCHISTAN. QUETTA BEFORE MR. JUSTICE MUNAWAR AHMED MIRZA F.A.O. No.11/90. Salahuddin son of late Gul Muhammad occupant of shop No.1‑13/1 Suraj Ganj Bazar, Quetta‑‑Appellant versus

1. Mst. Bibi Khor Jan widow of late Muhammad Akber.

2. Mst. Bibi Sabira.

3. Mst. Bibi Haleema.

4. Mst. Mumtaz Begum daughters of late Haji Muhammad Akbar all residents of Killa Kansi, Quetta‑‑Respondents. Appeal Under Section 15 of Balochistan. Urban Rent Restriction Ordinance VI of 1959. ORDER 15‑5‑1990:

1. Salahuddin appellant with Mr. Iftikhar Muhammad Advocate present.

2. Mr. Tariq Mahmood, Advocate for respondents. Parties have today filed compromise whereby appellant has agreed to surrender the possession of shop bearing Municipal No.1‑13/1 Suraj Ganj Bazar, Quetta subject‑matter of present appeal for purpose of reconstruction of new building. 1t has been agreed that in lieu of shop in dispute after reconstruction respondents shall provide two shops in the basement to appellant and the said shops have been shown as Mark `C' in the site plan Exh.A/3. The arrangement of construction and mode for delivery of possession has also been specified in the terms of compromise deed filed in the Court. Consequently the compromise is accepted and appeal disposed of in terms of compromise. It is further clarified that in any eventuality appellant shall be entitled to protection for possession of two shops in the basement of newly constructed building and benefit of section 13(5) B, of Ordinance VI of 1959. Appeal disposed of accordingly with no orders regarding costs. (Sd.) MUNAWAR AHMED MIRZA, J" After the appeals were disposed of as above by the learned Judge in the High Court, petitioner Salahuddin alone has now filed this petition for leave to appeal against the order passed by the learned Judge in the High Court in FAO No.12 of 1990, filed by the respondents 5 to 9, in occupation of the Khokhas. Learned counsel fur the petitioner in support of the petition contended that as the Rent Controller had not framed issue regarding his being owner of the Khokhas in occupation of the respondents 5 to 9 which were built ‑on the land belonging to the Municipal Committee the learned Rent Controller was wrong in passing the impugned order of eviction. The contention is devoid of merit. Indeed, the petitioner had raised the same ground of non‑framing of the said issue by the Rent Controller in his appeal No.FA0 11 of 1990 but thereafter he entered into compromise before the learned Judge in the High Court who disposed of the appeal in terms of the compromise as shown above and it was also undisputedly stated at the bar by Mr. Tariq Mahmood, learned counsel for the respondents landladies that the petitioner had been provided two shops in the building in lieu of his own shop. Similarly, the other appeal No. FAO 12 of 1990 was also not pressed by the appellants therein (respondents 5 to 9 herein) for the reason of being provided with alternate shops in the new building, and the appeal was accordingly dismissed by the. High Court as not pressed., That being so, the petitioner cannot now legitimately assail the impugned order passed by the learned Judge in the High Court, by raising the same ground of non‑framing of the said issue by the Rent Controller, at this stage. We, therefore, see no merit in this petition and dismiss it. H.B.T./S‑582/S??????????????????????????????????????????????????????????????????????????????????? Petition dismissed.