1997 PLP 403 (CLC)

This Appeal is preferred against the order, dated 25th April, 1996, passed by Civil Judge‑cum‑Controller, Quetta, directing appellant to hand over the vacant possession of Shop bearing No.6‑6/4‑B, situated at Sheikhan Street, Toghi Road, Quetta, to respondents. Precisely the facts are that respondents claimed eviction of appellant from shop in question on the grounds of default in payment of rent with effect from June, 1992 to May, 1995, at the rate of Rs.100 p.m. as well as for personal bona fide requirement of Syed Naimatullah and Syed Asmatullah sons of Syed Jan Muhammad (respondent No.l). Appellant contested application, repudiating claim of respondents, concerning default in payment of rent as well as requirement of shop in good faith by the sons of respondent No.

1. The Controller, after framing issues, recorded for and against evidence, led by parties and ultimately vide impugned judgment, allowed eviction application on the ground that shop is required by respondents for their personal bona fide need and occupation. The issue concerning default in payment of rent was left undecided, as in view of the evidence produced by appellant, it was not pressed by respondents. As such, instant appeal has been filed. Mr. Aminuddin Bazai, Advocate appeared on behalf of appellant, whereas Mr. Azizullah Kakar, Advocate, represented the respondents. It was contended on behalf of appellant that the Controller, disposed of relevant issue, on surmises and conjectures, because no evidence was available on record to substantiate the fact that the shop in question is required in good faith by respondent No. 1, for use and occupation of his sons, therefore, findings are not sustainable, which may be reversed and eviction application be dismissed. On the other hand, respondents' counsel contended that appellant in written statement had made admission that the premises in question is required by respondent No.1, for the use and occupation of his sons, therefore, the Controller had rightly directed his ejectment, from the shop. I have heard the parties' counsel at length and also carefully gone through the evidence on record. A perusal of eviction application indicates that the possession of the shop in question was sought by respondents for the use and occupation of Syed Naimatullah and Syed Asmatullah. According to respondents' counsel, they are sons of Syed Jan Muhammad (respondent No. l). But the witnesses produced by the respondents have contradicted to their contentions? Inasmuch as they have not even named to the sons of respondent No. 1, for whom the shop in question was required to be occupied. They have generally stated that respondents intend to get the possession of shop for their personal occupation or for the occupation of their sons. Moreso, even respondent No.2, who appeared for himself as well as Attorney of respondent No.l, stated that the shop is required by him for his own personal occupation as well as for use of his own sons. He has not stated at all that the shop is required in good faith for the use and occupation of Syed Naimatullah and Syed Asmatullah sons of Jan Muhammad, nor both these persons themselves entered in witness‑box to substantiate the plea. It may be noted that under section 13(3)(ii) of the Balochistan Urban Rent Restriction Ordinance‑‑VI of 1959, in the case of non‑residential building or a scheduled or rented land, it is obligation of landlord to establish that premises, possession whereof has been claimed through eviction application, is required in good faith for his own use or for the use of any of his children. The expression 'good faith' according to Balck's Law Dictionary, fifth Edition, page 623, means; 'that among other things, an honest belief, the absence of malice and the absence of design to defraud or to seek an unconscionable advantage, and an individual's personal good faith is concept of his own mind and inner spirit and, therefore, may not conclusively be determined by his protestations alone'. Thus, it is incumbent upon the Controller before concluding that proceedings for seeking ejectment of tenant has been lodged with good faith, to satisfy itself that the claim of landlord is based on honesty and sincerity and there is no element of fraud or misrepresentation. These facts can be measured on basis of evidence produced by the landlord in support of his claim. It may be noted that for this reason, time and again, it has been observed by the Courts, that the landlord has an obligation to prove the question of good faith, as an established fact, on basis of convincing evidence including the full particulars of a child or children, for whom the premises is required in good faith for occupation, if landlord himself is not claiming possession for his personal use and occupation. The claim of landlord would also be more strengthened if he discloses the nature of business of his child or children which he/they shall be running, if possession of the premises is delivered to him. Similarly it is always emphasised that the child or children should also be produced before the Contoller, for purpose of making statement in support of the claim, in order to establish without any doubt; that the premises is really required honestly for his use and occupation. In this behalf, if any authority is required, reference can be made to PLD 1.978 Karachi 188. . On careful and independent examination of the available evidence on record, I am confident to hold that the respondents have absolutely failed to establish their case for seeking ejectment of appellant from the shop in question, for the personal use and occupation of sons of respondent No.

1. It may also be observed that there is no admission by appellant concerning the claim of respondents and the Controller has misconstrued to the contents of Preliminary Objection 7 of written statement, wherein he stated that respondents are already in possession/occupation of open plot, shops and a locked shop, which is sufficient for their personal requirement. Thus, for the above reasons, appeal is allowed, impugned order dated 25‑4‑1996, is set aside and eviction application filed by respondents is dismissed, leaving the parties to bear their own costs. A.A./600/Q ???????????????????????????????????????????????????????????????????????????????????????? ??????????? Appeal accepted.