2001 PLP 2451 (YLR)

Through this common judgment 1 propose to dispose of F.A.Os. Nos. 132 of 2000 and 133 of 2000 as identical questions are involved in both the appeals.

2. Briefly stated the facts of the case are that respondents in both the appeals filed separate Eviction Applications against the appellants in the Court of Civil Judge‑V‑cum?Rent Controller, Quetta in respect of the shops bearing Municipal Nos. 1‑29/12 and I‑29/39 both situated in Sooraj Ganj Bazar, Quetta (hereinafter referred to as the shops in dispute) on the ground of default w.e.f. March, 1985 till filing of the Eviction Applications and for the personal bona fide use and occupation of husband of the landlady namely Muhammad Umar. Both the Eviction Applications were registered as Eviction Applications Nos. 3 of 2000 and 4 of 2000. The appellants filed their rejoinders to the??????????? applications. The Eviction Applications were resisted on common legal and factual grounds by the appellants. Common issues were framed in both the applications which read as under:‑‑ "(1) Whether the Eviction Application is not to be raised by the respondent in his rejoinder to Eviction Application? (2) Whether the respondent committed default in payment of rent since March, 1998 till today? (3) Whether the shop in dispute alongwith adjacent shop is required by the applicant for personal bona fide use and occupation of husband of applicant? (4) Relief?"

3. In both the applications; respondents produced the following witnesses A.W.1 Fazal Subhan, A.W.2 Muhammad Umar and attorney for the respondent Mushtaq Ahmed appeared on her behalf. In rebuttal, the appellant Haji Gul Baran in F.A.O..No.132 of 2000 (Eviction Application No.3 of 2000) produced R. W .1 Salahuddin, R. W .2 Abdul Ghani and got recorded his own statement. In F.A.O. No. 133 of 2000 (Eviction Application No.4 of 2000) the appellant Mehmood Ahmed produced R.W.1 Kaleemullah and R.W.2 Abdul Ghani who is also witness in the other case and got recorded his own statement. .After hearing both the parties, vide separate judgments dated‑ 25‑5‑2000, the learned Rent Controller allowed the application and ordered eviction of the appellants from the shops in dispute on the ground of personal requirement of landlady only; hence the instant appeals.

4. I have heard Mr. Sundar Das, Advocate for the appellant in F.A.O. No. 132 of 2000, Mr. Farrukh M. Malik, Advocate for the appellant in F.A.O. No.133 of 2000 and Mr. Shaukat Rakhshani, Advocate for the respondent in both the appeals.

5. Learned counsel for the appellants stated that the Eviction Applications were not maintainable as there is no provisions in the Ordinance to file Eviction Application for the need of the husband and further stated that besides, the husband of the respondent was doing business in rented premises in the same vicinity comfortably and failed to prove his bona fide personal requirement, therefore, the learned Rent Controller erred in allowing the said eviction application.

6. Mr. Shaukat Rakhshani, Advocate for the respondent contended that the Eviction Application on the ground of personal requirement of husband of landlady is maintainable and further the landlady has proved that the shops in dispute were reasonably and in good faith required by her for the use and occupation of her husband.

7. The contention of Messrs Sundar Das and M. Farrukh Malik, Advocate for the appellant that the Eviction Application is not maintainable on the ground of ‑ personal requirement of husband of landlady is devoid of force. It may be observed that personal requirement is not only limited to the landlord or his children but it also includes the dependants of the landlady/landlord; now it is well‑settled that there is no bar on the landlady for filing eviction application on the ground that the premises in dispute was required for the use and occupation of her husband as he was doing business in rented tenements. In this regard reference may be made to the following cases:‑‑ (1) Ghulam Mohiuddin v. Nazeer Bibi 1983 SCMR 715 and (2) Masud Ahmed v. Anwar Begum 1983 CLC 1139. In the former case, the Honourable Supreme Court observed as follows:‑‑ "Learned counsel for the petitioner has argued that the findings of the Courts below on the bona fide requirement of the landlady (to be more precise for her husband) was not correct. The contention has no merit. All three Courts on the subject have found against the petitioner on the evidence brought on record and on our part we feel no justification to interfere in this factual matter or to differ from them in any manner. It has come on the record that the husband of landlady is already doing business which shows that plea of doing business on part of the husband is a new enterprise to be now embarked upon by him for the first time. Similarly the plea that the shop already in his occupation is a rented shop supports his case further when he says he wants to shift to the present shop. It has further been proved that the husband of the landlady had earlier another shop with him from which he was evicted and thereafter, started doing business in the rent shop presently in his occupation. If in order to avoid such‑like constant threats of eviction the present shop is required by him for personal use, his need is quite genuine and perfectly bona fide. " In the latter case, the following observations were made: "in the present case:, also I am not inclined to differ with the concurrent findings of the two Courts below. It has come on the record that the husband of the respondent was doing Pheri work and had become sick and was unable to undertake that vocation. The landlady, therefore, wanted her husband to carry on business in the shop and earn livelihood of the family. This in my view will be a good faith and bona fide requirement of the landlady and cannot be said to be a matter beyond the purview of the Rent Restriction Ordinance. The learned Additional District Judge has also rightly pointed out that in case the landlady did not occupy the premises, there were ample safeguards provided to the tenant by the Ordinance."

8. Coming to the second contention that the landlady has railed to prove that the premises are required by her husband reasonably and in good faith; it may be observed that the statement of the husband of landlady namely Muhammad Umar was recorded in both the cases in which he stated categorically that he was doing business in rented tenements and the landlady does not own any other land in the same vicinity neither any shop has been vacated by her for said purpose and further stated that he wants to do coal mining business in the said premises. It has come on record that husband has given sufficient explanation that since he is doing business at present on the first floor in the said vicinity and the shops in dispute are more suitable for his business as the same are situated on the ground floor. The statement of the attorney of the respondent and statement of her husband namely Muhammad Umar for whom the premises is required is in consonance with the averments made in the eviction application; the learned counsel failed to point out any misreading or mis-appreciation of evidence. Needless to observe that ample safeguard is provided to the tenants under the Ordinance if the landlord/landlady does not occupy the premises, after, vacating the same he can apply to the Rent Controller for putting him back into possession; therefore, 1 see no justification to interfere with the impugned Order passed by the Rent Controller. However, the appellants are given two months' time to vacante the premises in dispute.

9. Parties are left to bear their own costs. Q.M.H./M.A.K./78/Q????????????????????????????????????????????????????????????????????????? Appeal dismissed.