P L D 1993 Quetta 84 (PLP)

This appeal riled under section 15 of Balochistan Urban Rent Restriction Ordinance VI of 1959 (hereinafter referred to as the ."Ordinance") is directed against judgment dated 30-12-1992 passed by learned Civil Judge- cum-Controller, Quetta whereby he was pleased to dismiss the eviction application filed by appellant.

2. Relevant facts for filing of this appeal are that the appellant is landlady and owner of a plot bearing Municipal No.'1-13/16-A situated on Bohra Street, Quetta. The said plot was leased out to respondent originally in the year 1950 at the monthly rent of Rs.50 which ultimately was enhanced gradually up to Rs.1,200 per month. Eviction application was moved on the ground that the landlady wanted demolition and reconstruction as she had already obtained approved plan from the Municipal Corporation, Quetta for the said purpose. However, the respondent contested the same by filing written statement.

3. On the basis of the pleadings the learend Controller framed the following issues:-- (1) Whether the premises in dispute is rented land, if so to what effect? Whether the premises in dispute is required by the applicant reasonably and in good faith for demolition and reconstruction? (3) Relief.

4. In support of eviction application landlady examined A.W. 1 Shaukat Hussain, A.W. Muhammad Anwar Patwari and her attorney Zohaib Ali. In rebuttal the respondent examined R.W.1 Khalil-ur-Rehman, R.W.2 Zafar lqbal Qureshi, R.W.3 Agha Muhammad Hussain, R.W.4 Abdul Samad and got his own statement recorded. 5. 'Learned Controller dismissed the eviction application. Hence this appeal.

6. Heard Mr. K.N. Kohli, Advocate for appellant and Mr. Ali Ahmad Kurd for respondent.

7. The main ground urged by Mr. Kohli was that the premises was a 'rented land' and the respondent has constructed a composite building on the same. He further argued that being 'rented land' the Controller had the jurisdiction but learned Controller in mis-exercise of his jurisdiction rejected the application.

8. Learned counsel further emphasised that landlady had obtained an approved plan as back as in the year 1985 and got the same renewed, therefore the Controller erred in law in holding that since the period for which this plan was approved ended after 7 years, therefore, very basis of the eviction application no more existed.

9. On the contrary Mr. Ali Ahmad Kurd argued that premises was not a rented land'. While referring to the written statement learned counsel submitted that when it was specifically denied that the premises was I not a rented land the onus shifted on the landlord/landlady to prove that it was a rented land. There is not an iota of evidence produced by the landlady that the premises was a rented land, therefore, the learned Controller correctly decided the matter by dismissing the eviction application.

10. Besides the arguments, I have gone through the record and perused the impugned order.

11. The moot question which cuts at the root of the matter is whether or not the plot. originally let out to the respondent was a 'rented land' as termed under section 2(f) of the Ordinance. Section 2(f) reads as under:-- (f) 'rented land' means any land let separately for the purpose of being used principally for business or trade;' Bare perusal of section 2(f) reveals that if any land is let separately for the purpose of being used mainly or chiefly for business or trade then it is covered by the definition of a 'rented land'. The legislature intentionally used the word 'separately' which means that if a piece of land is let out distinctly for the purpose of being used for business or trade then such land is included in the definition. Another important word used is "principally' which means chiefly or mainly, hence the chief purpose of the plot which is let out for rent must be business or trade.

12. Seen in the light of aforementioned definition, if we take into consideration the facts of the present case we find that there was an open plot where the people used to throw garbages and the landlady rented out the same to the respondent to be used by him for any purpose he liked. The respondent thus got the occupation of the said open plot and started constructing two residential rooms and one garrage. Thereafter with the passage of time he constructed a service station etc. When the open plot was leased out monthly rent was Rs.50.

13. Mr. K.N. Kohli urged with considerable vehemence that after getting possession of the plot a garrage and two residential rooms were constructed and in the garrage respondent used to repair vehicles which was a commercial purpose, therefore, the plot was a 'rented land'. In support of his contention learned counsel went on to say that in para.1 of the written statement the respondent stated that 35 years ago late Sadiq Ali let out an open plot to the respondent at. a monthly rent of Rs.50 for residential/business purpose and with his consent, respondent raised superstructure. Thus it was argued that it amounts to admission that the plot was let out for commercial purposes. Learned counsel to further supplement his arguments referred to the case of Shaukat Ali alias Shoka v. Sh. Abdul Hamid PLD 1969 Lahore 12 and Noor Muhammad Khan v. Haji Muhammad Ali Khan PLD 1973 SC 218. 14. 1 have perused the aforementioned two judgment facts are quite distinguishable. In the Lahore judgment (ibid) the plot was an open piece of land transferred under Displaced Persons (Compensation and Rehabilitation) Act, 1958 used by occupant for tethering cattle and running a fuel-wood business therefore, it was held that it was a 'rented land'. and Provisions of Ordinance attracted. Similarly in PLD 1973 SC 218 as referred to hereinabove originally a building was leased out as a vacant plot of land alongwith 5-1/2 shops-for purpose of construction of a cinema house and it was held, that, in, the circumstances the same was covered by definition of "building".

15. But in the instant case there w s an open plot where people used to throw' garbages and land owner wanted its protection, therefore, he rented out the same to the respondent td be 'used for any purpose he liked. The facts, aforementioned authorities are of no benefit to the appellant.

16. In order to reach a conclusion whether the plot was let out separately for the purpose of trade and business, I perused the eviction application riled before the Rent Controller. In para.1 "there is no mention at all that the open plot was let out principally for the purpose of business or trade and the second para of the eviction application it is written that the respondent is running service station and garrage in the premises. This was all what was written in the eviction application. In legal objection 'A' the respondent clearly stated that the plot in dispute was not let out to the respondent for business purpose and the portion of the said plot is used for residential purpose, therefore, the plot in dispute is not a 'rented land' and Rent Controller had no jurisdiction to adjudicate upon it. I thereafter perused the statement of attorney of landlady who entered the witness-box in support of the eviction application. lie has not mentioned a single word in support of the contention that it was an open plot which was let out for the purpose of business or trade. However, he mentioned only that on the open plot there is a garrage. Thus the case of the appellant was not that it was an open plot which was let out for the purpose of business or trade.

17. When Mr. Kohli was confronted with this situation, he referred to the statement and evidence of the respondent and stated that the respondent has produced evidence that there was a garrage and subsequently a service station was installed.

18. The question for determination giving jurisdiction to Rent Controller was whether at the time when it was let out the same was leased out for the purpose of running a business or trade or not? The respondent stated that the plot was given to him in the year 1950 to be fixed for any purpose he liked whether residential or business etc. He constructed two residential rooms and a garrage. Thus neither the landlady has stated anything in the eviction application nor produced a single wintness to say that it was an open plot separately let out for the purpose of being used principally for business or trade, so much so that after a specific objection raised in the written statement she came to know about the plea taken by the respondent but still her attorney did not utter a single word to that effect. The remaining two witnesses have only deposed regarding the approved plan for demolition and construction. Thus there was no evidence on record to conclude that the plot was a rented land. Hence the learned Controller had no jurisdiction and he rightly concluded that it was not a 'rented land'. In this view of the matter the case of Muhammad Khan and others v. Mst. Alamtab and others as reported in PLD 1973 Quetta page 28 is of much help where it was held that the land not let out chiefly or mainly for the purpose of business or trade is not a 'rented land'. In the said case the land was let out to be used in any, form or manner. So also in the present case the landlord leased out the same to be used for any purpose by the respondent. Subsequent developments are to my calculated view totally irrelevant because it is at the time of letting out the open plot which must be taken into consideration to determine whether the said plot was let out principally for the purpose of business or trade or not.

19. Having held so the remaining arguments regarding demolition and reconstruction etc. become irrelevant and require no determination.

20. The upshot of above discussion is that appellant totally failed to bring any evidence on record that the open plot was a 'rented land' therefore, I see no force in this appeal which is dismissed with no order as to costs.

21. These are the reasons for the short order announced on 9-5-1993 in open Court. A-A./450/Q Appeal dismissed