P L D 2022 Balochistan 97 (PLP)

NAZEER AHMED LANGOVE, J.

This appeal is directed against the judgment dated 12th November 2020 (hereinafter the "impugned judgment"), passed by the learned Civil Judge-IV, Quetta (hereinafter the "Rent Controller"), in eviction Application No.03/2016. The respondent's application was allowed, and the appellant was ordered to hand over the vacant possession of the house, built on Khasra No. 190, measuring 778 sq. ft. Mahal and Mouza Ward No.36, Tappa Urban-3, situated at Gul Muhammad Lane, Zonki Ram Road, Quetta (hereinafter the "house-in-question") and to make payment of outstanding rent at the rate of Rs.15,000/- per month with effect from 16th November 2015, as well as, clearance of utility bills, till handing over the possession of the premises to the respondent. Hence, this appeal.

2. Heard the parties' learned counsel and gone through the record with their assistance.

3. Facts of the case are that the respondent (applicant) filed an eviction application against the appellant with the averments that he has purchased the house-in-question from its previous owner Manzoor Ahmed Awan (his cousin). After the purchase of the house-in-question, the appellant was served a notice under section 13-A of the Balochistan Urban Rent Restriction Ordinance for payment of rent to him in future; besides, vacant possession of the house-in-question, required for his personal bona fide use and occupation.

4. On service of notice, the appellant filed his rejoinder, wherein he raised various legal objections regarding the application's maintainability and contested the same on merits.

5. Out of the parties' pleadings, issues framed, the parties exhausted their respective sides and recorded their statements.

6. After hearing the arguments and evaluating the evidence, the learned Rent Controller, Quetta, vide impugned judgment, allowed the eviction application. The appellant was directed to hand over vacant possession of the premises and make payment of outstanding rent and clearance of utility bills. Hence, this appeal.

7. Brief history with background is that initially, the house-in-question was owned by Muhammad Wali, transferred to his son Saeed Ahmed on 23rd September 2014, further transferred to Manzoor Ahmed (his son and grandson of Muhammad Wali) on 3rd October 2014, then to Muhammad Asif (respondent No. 14) on 16th November 2015.

8. After having stepped into the shoes of the previous landlord, the respondent served a notice under section 13-A of the Ordinance, proved through evidence but even then, the rent was not remitted to the respondent. Thus, the appellant committed willful default in view of section 13-A, which provides that a tenant be informed in case of transfer of ownership. Accordingly, where the ownership of a building in possession of a tenant of rented land has been transferred by way of sale, gift, inheritance or in any other manner, whatsoever, from one person to another, the new owner shall send an intimation of such transfer in writing by registered post to the tenant of such building or rented land; the respondent also fulfilled that legal requirement in letter and spirit. Moreover, nothing is available on the record to show that the landlord did not need the house-in-question for himself when he filed the present ejectment application.

9. There is a difference between section 13(2) and section 13(6) of the Ordinance. In the former case, Rent Controller has been given discretion not to grant ejectment application on the ground of non-payment of rent if the facts of the case so warrant. The words the Controller may make an order directing the tenant to put the landlord in possession of the building have been used in section 13(2) of the Ordinance, whereas, to section 13(6), it has been provided that if a tenant makes default of rent order passed under the above subsection, his defence shall be struck off. The landlord be put into possession of the property. The use of the word "shall" in section 13(6) of the Ordinance is in contrast to the word "may" used in subsection (2) of section 13 of the Ordinance. Therefore, Rent Controller has discretion in the matter falling under section 13(2) of the Ordinance. The issue of willful default by the appellant since November 2015 has been established.

10. The primary and essential requirement of the law for eviction of a tenant is bona fide need by the landlord, which stands discharged the moment he appears in the witness box and makes such statement on Oath or in the form of an affidavit in evidence as prescribed by law if it remained un-shattered in cross-examination and un-rebutted in the evidence adduced by the opposite party. The landlord even owns several premises; the question of which premises would be appropriate for him is a matter to be exclusively left to him to decide his choice; the tenant has no right to challenge such right. The landlord has a right to occupy his property and cannot be deprived of such right only because once it was rented out.

11. The appellant's contention that he had purchased the house-in-question from Maqbool Ahmed (son of Saeed Ahmed), who admittedly was not the recorded owner of the property. Surprisingly, during Saeed Ahmed's life time (the owner of the house-in-question), which too, through an agreement dated 2nd September 2008, proved fake because it surfaced after the demise of Maqbool Ahmed for the first time. Moreover, if the appellant had purchased the house-inquestion in 2008, how and in which capacity, he continued making payment of rent till 2015. Mst. Saeeda Maqbool and Mashood Ahmed Awan (Maqbool's widow and son) also belied the appellant's stance; executed a power of attorney in the respondent's favour, and denied execution or existence of any agreement by their predecessor. Section 2 (c) of the Ordinance defines landlord as under: "Landlord" means any person for the time being entitled to receive rent in respect of any building or rented land whether on his account or behalf or for the benefit of any other person, or as a trustee, guardian, receiver, executor or administrator for any other person, and includes a tenant, who sublets any building or rented land in the manner hereinafter authorized and every person from time to time deriving title under a landlord." Similarly, section 2 (i) defines the tenant, which reads as under: "Tenant" means any person by whom or on whose account rent is payable for a building or rented land and includes (a) a tenant continuing in possession after the termination of the tenancy in hisfavour, and (b) the wife and children of a deceased tenant, but does not include a person placed in occupation of a building or rented land by its tenant, unless with the consent in writing of the landlord, or a person to whom the collection of rent or fees in a public market, cart-stand, or slaughter-house or of rents for shops has been framed out or leased by a municipal, town or notified area committee".

12. The respondent is the legal and lawful owner of the house-in-question, the main question of personal bona fide need with good faith has also been proved, which fulfils the following definitions:- "Require"

Connotation. The Oxford English Dictionary (Volume-VIII) gives the meanings of the term "require" as "to ask for (something or person) authoritatively or imperatively, or as a right; to demand, claim, insist or having." Another meaning is "to demand as necessary or essential or general principles, or to comply with or satisfy some regulation". Similarly, the property required in good faith is defined as under: "Requires in good faith". The term good faith has not been defined in the Ordinance but in S.2 (27) of the W.P. General Clauses Act, 1956 as follows: "A thing shall be deemed to be done in 'good faith' where it is in fact done honestly. This definition necessarily implies that the demand for possession of the rented premises must be honestly made. Honestly is a state of mind and is. Therefore, a psychological fact capable of proof or disproof only be evidence or conduct. The word "bona fide" in this context of the provision in question would also appear to mean the same as "good faith".

13. A careful perusal of the evidence furnished reveals that the appellant's witnesses did not support his case in true perspective regarding their presence at the time of alleged execution of the agreement or making payment of any amount to Maqbool Ahmed (previous owner); there is no iota of evidence regarding payment of a penny in terms of cash, or through cheque. The appellant's institution of civil suit or denial of relationship was just an attempt to extend his illegal stay in the house-in-question by taking the shield of a fake and fabricated document having no legal value.

14. The appellant's learned counsel was also unable to satisfy that an agreement for the sale of the house-in-question by one co-sharer in the absence of the other co-sharers could validly make out a case for transfer of the entire un-divided property to another person. All circumstances on the factual plane are sufficient to indicate no such transaction or agreement for sale between the appellant and Maqbool Ahmed and that the sale agreement was not a genuine document. The appellant was only a tenant in the house-in-question. The learned Rent Controller rightly decided all the issues against him (tenant).

15. The appellant's learned counsel stressed on the point that no statement of the appellant was recorded before the learned Rent Controller; however, his statement on Oath (in written form) is available; he did not appear for cross-examination intentionally to make a ground for case's remand; because in the first round of litigation, the case was remanded mainly for cross-examination; such trend can not be appreciated. In the instant case, the appellant (tenant) had admitted that he was inducted as a tenant by making payment of rent for many years. Therefore, he cannot challenge the landlord's title (recorded owner of the property) without first surrendering the possession to him, but not followed.

16. The learned Rent Controller (Civil Judge-IV, Quetta) passed a well-reasoned judgment and decree which does not suffer from any illegality, material irregularity or inherent defect, even on a reappraisal of the evidence, I could not form a contrary view to that of the Rent Controller, as such, the same is not open to any exception.

17. Because of the above, the appellant's appeal being meritless is dismissed with no order as to costs. The decree sheet be drawn separately. ZH/183/Bal. Appeal dismissed.