P L D 2000 Supreme Court 787 (PLP)

(On appeal from the judgment dated 23‑6‑1996 of High Court of Balochistan passed in F.A.O. No. 107 of 1995). (a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑ ‑‑‑‑S. 13‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Bona fide personal need of landlord‑‑Leave to appeal was granted by Supreme Court to consider the question that all the co‑owners, being landlords, whether one of them could file eviction application for his own personal need or not. (b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑ ‑‑‑‑Ss. 14 & 13‑‑‑Second application for ejectment of tenant on same issue‑‑ Maintainability‑‑‑Earlier application for ejectment of tenant on the ground of bona fide personal need of landlord was filed by a co‑owner which was decided finally‑‑‑Second application instituted after a period of 5 years on same issues with the assertion that property in question had been partitioned was maintainable‑‑‑Provision of S.14, West Pakistan Urban Rent Restriction Ordnance, 1959 would not be attracted if the circumstances were changed. (c) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑ ‑‑‑‑Ss. 13 & 2(c)‑‑‑Bona fide personal need of landlord ‑‑‑Co‑owner being a landlord within the scope of definition of "landlord" appearing in S.2(c) of the Ordinance ejectment application against tenant by a co‑owner without joining other co‑owners was competent. (d) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑ ‑‑‑‑Ss. 14 & 13‑‑‑Application for ejectment of tenant‑‑‑Earlier application for ejectment‑of tenant on the ground of bona fide personal need of landlord was filed by one of the co‑owners which was decided finally‑‑‑Second application was instituted after a period of 5 years on almost same issues (bona fide need and construction of the property) with the assertion that property in question had been partitioned‑‑‑Validity‑‑‑Nothing concrete had been brought on record to show that the property in question was actually partitioned among the co‑owners nor even portions to be owned by the co‑owners were shown‑‑‑Evidence produced was insufficient to justify eviction of the tenant on the ground of alleged bona fide need and reconstruction of the property‑‑ Pleas of ejectment of tenant on such grounds were justifiably rejected in ,circumstances‑‑‑Supreme Court, however, observed that after private settlement/partition of property in question the applicant or any other co owner or all of them could, if so advised, file fresh eviction application against the tenant clearly stating his/their requirements for bona fide personal need and in such a situation fresh application would be decided by Rent Controller on its merits. JUDGMENT NAZIM HUSSAIN SIDDIQUI, J.‑‑Vide order dated 22‑5‑1997 leave to appeal was granted to the appellant against the judgment dated 23‑6‑1996 of the High Court of Balochistan, Quetta, to consider if all A the co‑owners being landlords one of them could file eviction application for his own personal need or not.

2. The facts relevant for decision of this matter are that appellant Haji Abdullah Jan is a co‑owner of the premises bearing No.2‑12/17‑A, measuring 1350 sq. ft. situated on ground floor of the building owned by him and other co‑owners. It is alleged that he and his brother Kala Khan are owners of 2/3rd of its portion, while 1 /3rd belonged to others namely, Abdul Manaf, Musa Jan, Bismillah and Agha Muhammad sons of Nasir Khan. The premises in question was leased out to respondent Anwar Khan on 10‑6‑1980 for a period of 10 years at monthly rent of Rs.2,

500. On expiry of lease period eviction application was filed on 7‑7‑1990 against the respondent, which ended into compromise vide order dated 29‑11‑1992 of the High Court passed in F.A.O. No.92 of 1992 in the following terms:‑‑ "(1) That. the tenant has agreed to enhance the rent of the premises in question from 1‑9‑1990 at the rate of 7500 out of which Rs.2,500 is already being deposited in the Court. The tenant shall pay balance rent amounting to Rs.1,35,000 from 1‑9‑1990 to 30‑10‑1992, at the rate of Rs.5,000 within a period of three months from this date. (2) That the future rent shall be paid at the rate of Rs.7,500. (3) The appellant agreed to withdraw the appeal filed before this Court. Since the parties have compromised, therefore, they shall bear the cost. "

3. It appears that the appellant again filed Eviction Application No.9 of 1995 against the respondent under section 13 of the Balochistan Urban Rent Restriction Ordinance, 1959 (hereinafter called 'the Ordinance') stating that the property in question was partitioned among its owners in the month of December, 1994 and thereafter, each of the co‑owners claimed his respective share and possession in said property for their bona fide personal use and requirement. It was also alleged that the building was to be reconstructed for satisfying the needs of all the co‑owners.

4. The respondent contested the claim of the appellant on merits as well as‑on legal grounds. It was alleged that in view of section 1.4 of the Ordinance the eviction application was not maintainable. On merits the respondent claimed that the appellant does not require said premises for his personal bona fide use.

5. Learned Rent Controller by order dated 29‑11‑1995 allowed the eviction application and directed the respondent to hand over vacant possession of the premises to the appellant within 4 months from the date of said order.

6. Above order was impugned being F. A. O. No. 107 of 1995 before the High Court and learned Judge in Chamber allowed the appeal, set aside the eviction order and dismissed the eviction application. This order has been challenged in this appeal.

7. Learned High Court held. that the eviction application was barred under section 14 of the Ordinance and that the appellant had no locus standi to move eviction application on behalf of the co‑owners. It was also observed that the appellant failed to show that private settlement between owners of said property was arrived at.

8. Section 14 of the Ordinance reads as under:‑‑ "

14. The Controller shall summarily reject any application under subsection (2) or under subsection (3) of section 13 which raises substantially the same issues as have been finally decided in a former proceeding under this Ordinance. "

9. Section 13 of the Ordinance enumerates the grounds on which eviction of a tenant can be ordered. It includes the ground for own use by the landlord or for the use of his children in good faith. According to section 14 (ibid) the Controller shall summarily reject any application for eviction which raises substantially the same issues as have been finally decided in a former proceeding under the Ordinance. In fact, it lays down the principle of res judicata. It is noted that said section would not be attracted if the circumstances are changed. Whether the circumstances are changed or not it would depend upon the facts of each case. As pointed out above, earlier application was filed in July, 1990 and till 1995 a period of 5 years had passed when second application was instituted with the allegation that the property was partitioned. Under the circumstances second eviction application of the appellant was maintainable.'

10. Adverting to the leave granting order, it is noted that learned High Court with reference to section 13(3)(ii)(1) of the Ordinance observed that plain reading of above provisions indicated that except landlord or his children no one else including co‑owners, brother of landlord were competent to invoke the jurisdiction of Controller for ejectment of tenant, unless they themselves had not attained status of landlord. For above, the reliance was placed on a decision of this Court reported as Abdul Salam Akhtar v. Dr. Najam Parvez 1976 SCMR

52. This case was under West Pakistan Urban Rent Restriction Ordinance, 1959 and the scope of words of "own occupation" was considered. It was held that above words were to be interpreted in restricted manner so as to be confirmed to the personal requirement of individual landlord alone. It was held that the personal need of the landlord was there in addition to the need of his brother.

11. We are of the view that above case is not attracted to the circumstances of this case, as here the precise question is if one of the co -owners could file eviction application or not. Above point was considered by this Court in the case reported as Khalique Ahmed v. Abdul Gani and another PLD 1973 SC

214. It was laid down in the said case, which was instituted under West Pakistan Urban Rent Restriction Ordinance, that suit for ejectment by one 'co‑owner without joining other co‑owners was competent. Following above dictum we hold that eviction application can be filed by a co‑owner without joining other co‑owners as co‑owner is a landlord within the scope of definition of "landlord" appearing in clause (c) of section 2 of the Ordinance.

12. Coming to the merits of the case, it is noted that nothing concrete' has been brought on record to show that the property was actually partitioned among the co‑owners nor even portions to be owned by the co‑owners, are shown. The evidence was insufficient to justify eviction of the respondent on the ground of alleged bona fide personal use. Although a plea was taken that building was to be reconstructed having two shops and a restaurant in the portion in possession of the respondent but substantial evidence to that effect was missing.

13. Under the circumstances, we do not find any merit in this appeal and the same is dismissed. However, after private settlement/partition of said property the appellant or any other co‑owner or all of them, may, if so advised, file fresh eviction application against the respondent clearly stating his/their requirements for bona fide personal use. It goes without saying that, if so is done, the fresh eviction application by Rent Controller would be decided on its merits. M.B.A./A‑28/S Appeal dismissed.