2012 PLP 134 (MLD)

MUHAMMAD HASHIM KHAN KAKAR, J.

Through this Appeal filed under section 15 of the Balochistan Urban Rent Restriction Ordinance VI of 1959 ('the Ordinance'), the appellants impugn their ejectment from Shops Nos.4 and 5, situated at Punjabi Imam Bargah, Alamdar Road, Quetta, ordered by Civil Judge-IV-cum-Rent Controller, Quetta, by his judgement dated 18-7-2009.

2. Facts, necessary for the disposal of this appeal, are that the disputed shops were rented out to the predecessor-in-interest of appellants, viz, Gul Ali on monthly rent of Rs.150 per month of each shop, payable on the first day of every succeeding month. After the death of Gul Ali, the appellants succeeded as the tenants of the shops. Thereafter, the respondent on 8-12-2007 filed an application under section 13 of the Ordinance against the appellants, on the grounds that the predecessor-in-interest of the appellants had wilfully defaulted in the payment of monthly rent from July, 1989 till filing of eviction application and that the tenanted shops were needed by the respondent in good faith for bona fide use and occupation of Imam Bargah, in order to run its religious affairs.

3. Learned counsel for the appellants has assailed the findings of the Rent Controller, on the ground that after recording the statement of appellants' attorney on 23-6-2009, the matter was adjourned for the final arguments on 2-7-2009, when junior counsel for the appellants; namely, Mr. Niamatullah appeared before the Rent Controller and requested for adjournment, which was turned down and matter was decided one sidedly in violation of the principle of natural justice. He further contended that the appellants had been duly making payments of the rent to the respondent by depositing the same in CCD account with the permission of the Rent Controller, because no one, on the part of respondent, was ready to receive the monthly rent. Regarding the personal need of respondent, learned counsel contended that the respondent did not reasonably and in good faith for bona fide use and occupation required the shops in question. The premises, already in occupation of the Anjuman, are enough and much more than the requirement that too, for their limited ceremonies in a short span of time in the whole year.

4. On the other hand, learned counsel for the respondent, has vehemently opposed the contentions so raised and supported the judgment impugned herein, on the grounds that the Rent Controller, after proper appraisal of record and evidence, has rightly made the order of ejectment, which does not call for any interference by this Court.

5. Arguments pro and contra heard. Material made available on record perused, in the light of relevant provisions of law.

6. Admittedly, the respondent is a registered Anjuman, running and managing the affairs of Punjabi Imam Bargah. The disputed shops are the part and portion of premises of the Imam Bargah. The respondent, in order to run its religious affairs, holding 'mahafil' and 'majalis' and for the purpose of 'za-e-reen', who used to come and visit from different parts of the country and stay in the Imam Bargah before proceeding to Ziarat of Holy Shrines of Imams situated in Iraq, Iran and Syria. According to the evidence available on record, the accommodation and place, already available with the respondent, is inadequate and is not sufficient to cater the requirement fully and completely for 'mahafil' and 'majalis'. The respondent recorded his statement and also produced Iftikhar Hussain as AW-1 in support of his claim of bona fide need, whereas the appellants have failed to shatter the veracity of statement of the respondent that he is not in need of the rented premises. By holding the view, I am fortified by the dictum laid down by the apex Court in the case of Messrs F.K. Irani and Co. v. Begum Feroze-reported in 1996 SCMR 1178, wherein it has been held 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 is bona fide." 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 as a fundamental right is protected. Admittedly, the right of ownership is superior than 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 Rent Controller has rightly decided Issue No.3 in favour of the respondent.

7. I am in agreement with learned counsel for the appellants that the principle of natural justice "Audi Alteram Partem" (no one should be condemned unheard) is deemed to be a part of every statute, unless its application is specially excluded. The record reveals that the appellants' attorney statement was recorded on 23-6-2009 and the case, as suggested, was adjourned to 26-6-2009, but could not proceed on account of strike observed by the lawyers' community and case was adjourned to 2-7-2009. Suffice to add here that on the request of appellants' counsel, it was again adjourned to 14-9-2009 and on the said date, arguments were heard and order was reserved, as such, the contention of learned counsel regarding not providing proper opportunity of hearing, on the face of record, is baseless, misconceived and nothing, but mockery of law. Even otherwise, under Article 129 illustration (e) of the Qanun-e-Shahadat Order, 1984, the presumption of truth is attached to the proceedings carried out by the Rent Controller.

8. 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.

9. In view of what has been discussed above, this appeal has no merits and the same is 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 order, subject to payment of monthly rent. Appeal dismissed. S.A.K./124/Q Appeal dismissed.