2012 PLP 1577 (CLC)

JAMAL KHAN MANDOKHAIL, J.

Briefly stated facts of the case are that the respondent filed the eviction application against the appellant on the ground of personal bona fide use and occupation in respect of the shop constructed over the land bearing Khewat No.143, Khatooni No.121, Khasra No.32, measuring 679 Sq:Ft: situated at Jinnah Road, Mohal-o-Mouza Ward No.17, Tappa Urban, Tehsil and District Quetta. The appellant filed his reply to the application raising legal objections regarding maintainability of the application and also contested it on merits. Out of the pleadings, the trial Court framed the following issues:

(1) Whether respondent has paid Rs.45000/- ("Rupees Forty-Five Thousand") as Pagri to the previous owner of shop in question? (2) Whether the shop in question is required to the applicant in good faith for bona fide use and occupation? (3.) Whether applicant is entitled for relief claimed for? ADDITIONAL ISSUES: A. Whether the application of the applicant is not maintainable in view of preliminary legal objection C raised by the respondent in rejoinder? The respondent/applicant produced three witnesses and recorded his statement. In reply, the appellant produced five witnesses and recorded his statement through attorney. The Rent Controller, after conclusion of the case accepted the application by means of the judgment and decree dated 18th June, 2009, hence this appeal.

2. Learned counsel for the appellant stated that since the respondent/applicant has died during the pendency of the appeal, therefore, the ground of personal bona fide use is not available to the newly-added respondent(s)/legal heir(s). According to the learned counsel, they cannot get the advantage of the impugned judgment and decree, nor can defend the same, therefore, he requested for setting aside of the same. On merits as well, the learned counsel argued that father of the respondent had failed to prove his personal bona fide use and occupation, as he was already doing a business. The learned counsel further states that earlier too, the predecessor of the deceased applicant filed an eviction application against the appellant, but failed to succeed, where after, the predecessor of the respondents entered into a rent agreement with the appellant for a period of five years and after its expiry, the present application has been filed with mala fide intention. The learned counsel lastly argued that the appellant acquired the shop in question from its previous owner namely Siddiqui after payment of Rs.45000/- as goodwill (Pagri), therefore, the predecessor of the respondents being the subsequent purchaser/owner of the property in question are bound by the commitment of their previous owner, as such, after receiving the goodwill, the eviction application is not maintainable.

3. Learned counsel for the respondent opposed the contention and stated that upon the death of the applicant, the right of his legal heirs to defend the order and decree does not abate. According to him, the right has been granted to the deceased applicant, which has devolved upon his legal heirs, therefore, they are entitled to get the possession of the shop and the objection so raised by the learned counsel for the applicant is not sustainable. He further stated that the predecessor of the respondents was able to prove his case through a reliable witness and the appellant has failed to point out mala fide on the part of the landlord. The evidence has properly been considered by the trial Court, while accepting the application, hence, no illegality has been committed.

4. I have heard the learned counsel for the parties and have perused the record. Considering the contention of the learned counsel for the appellant regarding the maintainability of the application, it is to be noted that the predecessor of the respondent succeeded in his application on the ground of the personal bona fide use and occupation. The trial Court ordered the appellant to vacate the shop in favour of the deceased landlord through a decree. The decree has been defined in section 2(2) of the C.P.C., which means the formal expression of adjudication, determining the rights of the parties to the suit, etc. the word "party(s)' shall include his/their legal representative(s), who represent(s) the estate of the deceased and steps into his/her/their shoes. A decree is a declaration of a right of a party, which entitles him to get such right. In an eviction proceeding, a decree in favour of an applicant entitles him to get the possession of the disputed property, therefore, upon his death, the decree does not abate. Once a right is accrued in favour of a decree-holder, after his death, it automatically devolves upon his legal heirs and they have the right to defend the decree and are entitled to contest the appeal.

5. Now, adverting to the merits of the case, the appellant, in his rejoinder, raised an objection regarding the maintainability of the application, alleging that an amount of Rs.45000/- was paid by him as Pagri to the previous owners of the shop, on which, the trial Court framed issue No.1. Pagri (Good Will) has no value at all, as it is not a legal transaction, therefore, the eviction application on this score cannot fail. Even otherwise, according to the appellant, he paid the amount to its previous owners, therefore, it may be a matter between him and the previous owner, with which, the respondents or their predecessor have no concern, therefore, the objection has no force in it and the Controller has rightly resolved this issue.

6. Upon an objection of the appellant, the issue No.2 was framed on the bona fide regarding use and occupation of the predecessor of the respondents. The appellant did not produce any evidence to substantiate his contention nor proved the mala fide on the part of the predecessor of the respondents. To the contrary, the evidence produced by predecessor of the respondents was not only consistent, but also in conformity with the contents of the application. The witnesses of the landlord were firm and were not shaken despite lengthy cross-examination. Even otherwise, the Ordinance has provided protection to a tenant under section 13 subsection (4), therefore, if the respondents fail to get the possession of the shop in the stipulated period or after getting the possession, re-let it to someone else within a period provided by law, the appellant has the right to recover the possession of the shop. The trial Court, after proper appraisal of the evidence and material available on record, came to a just and right conclusion while deciding such issue.

7. The issue No.3 was additionally framed on the Preliminary Objection "C" of the rejoinder filed by the appellant, stating therein that pursuant to the agreement dated 19th September, 2001, the eviction application is not maintainable. Since the learned counsel for the appellant did not press this objection, therefore, the trial Court overruled it accordingly.

8. The trial Court, after assessment of the facts, circumstances and the evidence available on record, has rightly accepted the application; therefore, the order and decree impugned are just and proper. The learned counsel for the appellant has failed to point out any illegality or irregularity warranting this Court to interfere in it. Thus, in view of what has been stated and discussed hereinabove, the appeal is accordingly dismissed. KMZ/62/Q Appeal dismissed.