2004 PLP 1282 (CLC)

This appeal under section 15 of the Balochistan Urban Rent Restriction Ordinance VI of 1959 (hereinafter referred to as the Ordinance) is directed against the judgment, dated 20‑5‑2002 passed by Civil Judge‑III/Rent Controller, Quetta, whereby the eviction application filed, by the appellant was dismissed. Facts giving rise to this appeal are that the appellant filed an eviction application against the respondent regarding shop situated at Jinnah Road, Quetta (in short shop in dispute) on the ground of personal requirement of his son. It was averred in the eviction application that the respondent was initially rented out four shops in the year 1987. Previously an eviction application was filed .which was contested upto this Court, thereafter the same was compromised on the terms that the rate of rent of the two shops was enhanced to Rs.1,000 and two shops were handed over to the appellant/landlord. After obtaining possession of the two shops, the appellant/landlord opened a Bakery in the name and style of Hollywood Bakery. However, he was abducted on 7‑1‑2000 and after paying heavy ransom he was released. It was further stated that the family members of the appellant/landlord had obtained loan for release of the appellant and to make payment of the debts, the Hollywood Bakery was rented out to the Habib Bank. It was further stated that the son of appellant is jobless and the premises in dispute is required for his personal bona fide use and requirement. The application was resisted on legal and factual grounds. It was stated that the landlord/appellant had received heavy Pugri and previously also two shops in possession of the respondent were vacated and thereafter the landlord/appellant started business of Bakery therein and then rented out the same to the bank at the time of filing of eviction application. Thus, his application is based on mala fides. Out of the pleadings following issues were framed:‑‑ (1) Whether the application is not maintainable in view of P.L.O. "A" and "C"? (2) Whether the disputed shop is required for the personal use to the applicant for business of his son? (3) Relief? To prove its case, the appellant produced the following witnesses:‑‑ A.W.1 Zareen Dokh Bandgi wife of the appellant. She produced the lease agreement Exh.A./l, dated 28‑4‑2001 executed between the landlord and Habib Bank in respect of the adjacent shop of the building, Certificate Exh.A./2 regarding taking over possession of the shop of Habib Bank, tenancy agreement Exh.A./3 in respect of a house belonging to the appellant. A.W.2 Farshad Bandgi for whom the shop in dispute was required. A.W.3, Rajab Ali he produced the document Exhs.A./4 and A/5 i.e. the site‑ plan of the Habib Bank Jinnah Road Branch Quetta. C.W. Jan Muhammad tendered the documents Exh.C./1 to Exh.C./2 as mark A/1 to A/2.. Statement of the appellant was recorded. In rebuttal the respondent produced R.W.1 Muhammad Arif Askari, R.W.2 Shafi Muhammad placed on record mutation document Exh.R./1, in respect of the shop in dispute. R.W.3 Liaquat Ali, R.W.4 Abdul Malik, R.W.5 Khalil Ahmed, R.W.6 Shaukat Hussain, placed on record site plan of the building Exh.R/3. R.W.7 Anwar Jan placed bank document Exh.R.4 i.e. taxes paid by the respondent P.W.8 Nasir Ahmed placed document Exh.R.5. Statement of the respondent was recorded who has placed documents and judgment of the High Court passed in F.A.O. No.6 of 1991 whereby two shops were handed over to the landlord. On conclusion of the trial, the learned Civil Judge‑III/Rent Controller, Quetta rejected the eviction application vide impugned judgment, dated 20‑5‑2002. Hence the instant appeal. Mr. Ehsan‑ul‑Haq Khan, learned counsel for the appellant contended that the learned Rent Controller has misinterpreted the provisions of the Ordinance and rejected the application whereas the personal bona fide requirement has been proved and further stated that the Hollywood Bakery which was rented out to the bank cannot be equated with the term "such building" as used under section 13(3)(a)(ii) of the Ordinance, as the Hollywood Bakery which was rented out to the bank was larger in space from the shop in dispute. Mr. Muhammad Riaz Ahmed, learned counsel for the respondent/tenant contended that application has rightly been dismissed as the appellant/landlord could not fulfil the requirements as envisaged under section 13(3)(a)(ii). I have heard the learned counsel for the parties at length and have perused the record minutely with their assistance. It may be observed hire that admittedly the shop known as Hollywood Bakery measuring about 23‑00 sq.ft. was rented out to the Habib Bank vide lease agreement dated 20th April, 2001. It has come on record that the appellant in the previous round of application had got vacated two shops from the respondent on the basis of compromise and another shop was also vacated in the same building from one Jamaluddin and thereafter the appellant had converted the‑said shop into Bakery and was doing business in the name and style of Hollywood Bakery. The case of the appellant is that since lib was abducted in the year 2000 and his family members had to pay heavy ransom for his release and the amount was borrowed from different people and it has been further averred that since the appellant had to pay the debts, thus, the said shop and his house were rented out to Habib Bank which is adjacent to the shop in dispute. The present eviction application was also filed in the year 2001 after renting out the said shop to the Habib Bank for personal use and occupation of his son. It may be pointed out that under section 13(3)(a)(ii), the following conditions have been laid down for eviction of a tenant: ‑‑ (i) that the rented premises is required by the landlord for himself or for the use of his children; (ii) he or his children for whom the premises is required is not occupying in the same urban area any such building which could be used for the purpose of business; (iii) he has not vacated such a building or rented land in the said urban area. To determine the bona fide requirement of the person for would the premises is required and conduct of the person requiring it and the circumstances under which it is required have to be taken into consideration. To prove his bona fide, the landlord has to fulfil all the aforementioned three pre‑requisite conditions specified in section 13(3) (a)(ii) of the Ordinance. Since the ejectment of a tenant is regulated by statute which provides specific grounds for ejecting a tenant, the landlord to get an eviction order has to fulfil all the requirements and in case any condition is not fulfilled, the eviction application shall not succeed. In the case in hand, admittedly the appellant rented out a building adjacent, to the shop in dispute and thereafter filed the instant application on the ground of personal requirement of his son and it has also come on record that the son for whom the premises is required also used to assist the appellant in the Bakery. The plea of the landlord/ appellant that after his abduction he borrowed money to pay the ransom for his release, thus, to pay of debts the building was rented out to the Habib Bank, plea cannot be considered as a valid ground for renting out the said shop on the ground of, financial constraints faced by the landlord. The adjacent shop was rented out to Habib Bank during the same period when the eviction application was filed would negate the provisions of the Ordinance; as clause (c) of the section 13(3)(a)(ii) envisages that the landlord has not vacated such a building rented out without sufficient cause. The difficulty of landlord cannot override the provisions of the statute rather the act of the landlord by renting out the premises to Habib Bank negates the aforesaid provisions. It is pertinent to observe that one of the essentials for evicting a tenant in a case of personal requirement is the existence of goods faith. The landlord has to prove personal requirement and good faith simultaneously, to get an eviction order. The appellant has failed .to prove good faith, as observed hereinabove that the son of the appellant has been assisting his father in the Bakery business, he could have carried with the business in the 'said shop, which was rented out to Habib Bank, at the time when the son also required a shop for his business, would reflect on his good faith. It may be pointed out that the tenant cannot be evicted on the mere wish, convenience, whim and fancy of the landlord. In this regard reliance is placed on the case‑law Abdullah and others v. Yahya Bakhtiar PLD 2001 SC 158 wherein the Honourable Supreme Court has observed as follows:‑‑ "We are conscious of the fact that `mere wish, convenience, whim or fancy of landlord, held, would not be enough to show that landlord `requires premises in good faith'. Landlord must prove requirement of premises for reasonable needs and that he was not seeking eviction on pretext of requiring additional accommodation with oblique motive of realizing some extraneous purposes. Order of eviction would require satisfaction of Rent Controller that reasonable requirement of landlord would be met by occupation of premises. Eviction order could not be granted on vague allegations in eviction application. Mere ipse dixit of landlord that premises were required for accommodating of its senior staff was not enough. Plea of requirement would have to be supported by valid reasons as to how such requirement is genuine." It may be pointed out that the learned Rent Controller has taken into consideration the said aspect and has held that since the shop was rented out in the adjoining building, the landlord has thus, failed to prove bona fide requirement of his son. Mr. Ehsan‑ul‑Haq, learned counsel for the appellant contended that since the premises is rented out to the Habib Bank was larger in space than the shop in dispute it cannot be termed as such building or same premises. I am not inclined to subscribe to the said argument. Suffice it to observe that the landlord could have retained a smaller portion of the said building for his son as premises which was rented out to Habib Bank, as previously consisted of four shops which was vacated from the respondent and another tenant. Thus, the contention of learned counsel is repelled. Thus, in view of the above discussion, I see no merit in this appeal which is dismissed. Parties are left to be their own costs. H.B.T./19/Q Appeal dismissed.