2002 PLP 1320 (SCMR)

IFTIKHAR MUHAMMAD CHAUDHRY, J.‑‑‑This petition for leave to appeal has been filed against the judgment, dated 12th April, 2002 passed by High Court of Balochistan, Quetta whereby appeal filed by petitioner has been dismissed. .

2. Succinctly stating facts of the case are that petitioner filed an application against the respondent for his eviction from property bearing Municipal No.23‑7/22 situated at Fatima Jinnah Road, Quetta (hereinafter referred to as the "Shop in dispute") on the grounds of default in payment of rent with effect from 17‑5‑1995 till filing of eviction application and personal requirement of his son namely Syed Abdul Wasay.

3. The application was contested by the respondent repudiating the claim of the: petitioner by filing a detailed rejoinder. .

4. Learned trial Court out of pleadings of the parties framed issues and directed the parties to lead evidence pro and contra. On completion of proceedings the Rent Controller/Civil Judge‑II., Quetta was pleased to dismiss the eviction application by means of order dated 28‑2‑2001.

5. The petitioner being aggrieved from the order of Civil Judge‑II/Rent Controller, Quetta preferred appeal before High Court of Balochistan which was also dismissed by means of impugned judgment, dated 12th April, 2002. As such instant petition for leave to appeal has been filed.

6. Learned counsel contended that petitioner had instituted eviction application dated 6‑5‑2000 for obtaining possession of Shop No.2‑7/22 on the ground of use and occupation of his son in terms of section 13(3)(ii)(a)(b) of Balochistan Urban Rent Restriction Ordinance (VI of 1959) (hereinafter referred to as the "Ordinance"), therefore, he had a specific cause of action against the respondent/tenant and merely due to the reason that immediately after filing of eviction application another shop owned by the petitioner and possessed by another tenant Naseer Ahmed fell vacant would not extinguish the cause of action available to the petitioner for instituting the eviction proceedings against the respondent. To elaborate his argument he contended that petitioner himself happened to be a person spending a retired life, therefore, he had a right to increase his earning by starting his own business in the shop which was vacated by Naseer Ahmad. As such the act of the petitioner would not reflect adversely on his claim of getting vacant possession of the shop, which is in the possession of the respondent for the use and ‑occupation of his son Abdul Wasay who is a student of B.A., and on completion of his education he would occupy the same for his independent business. Reliance in this behalf was placed on 1991 SCMR 1994.

7. On the other hand learned counsel for caveator/respondent argued that petitioner intended to get possession of the shop in dispute with mala fide intention because another shop occupied by Naseer Ahmad was got vacated during pendency of the eviction application and he wanted to lease it out further as after its vacation a board was displayed over it mentioning therein "for let out" but subsequently when the respondent resisted his ejectment on the ground that the claim of the petitioner is based on mala fide intention then he took plea that in the said shop he himself is running the business. He further explained that yet another shop was available to the petitioner in which Abdul Wasay for whom the shop in question is required to be vacated is running P.C.O. but to negate the plea of the respondent it was contended that Wali another: son of the applicant is doing the business of running P.C.O. through his servant whereas Muhammad Wali is in the employment of Livestock Department, Pishin of Government of Balochistan. But this plea as well was not found sustainable and for such reasons both the Courts i.e. Civil Judge/Rent Controller and High Court had concluded that the claim of the petitioner is based on mala fides, as a result whereof relief was declined to him.

8. We have heard the learned counsel for parties and have also gone through the impugned judgment carefully. It may be noted that the A provisions of section 13(3)(ii)(a) of the Ordinance confers two types of rights upon a landlord to apply to the Controller for an order directing tire tenant to put the landlord in possession of a non‑residential building in good faith for his own use or for the use of any of the male children/child and when a landlord exercises his right on behalf of male child/children to occupy a non residential building his claim is based on all together different consideration from the one when he exercises such right for his own use. Needless to observe that cause of action with regard to obtaining the possession in good P faith for the use of mal child/children depends factually upon the requirement of his children or child for whom the premises is required to be occupied by him. If this clause is read alongwith clause (b) of the Ordinance, there remains no ambiguity concerning the bona fides of the child for whom the premises is required because the landlord has to show that his said child is not occupying in the same urban area in which such building is situated for the purpose of his business any other such building or rented land, as the case may be, suitable for his needs at the time. In the instant case the petitioner disclosed cause of action to obtain the vacant possession of the premises in question for his son namely Abdul Wasay who was getting education in Government Degree College. Quetta in B.A., Part‑I and for doing so an explanation was also offered that because nowadays there is no chance of getting. good employment and also for the reason that he is not taking keen interest in education, therefore, the petitioner has decided to get him settled to the business. With such explanation to achieve the object the petitioner did not conceal any fact with regard to other shops owned by him including the one adjacent to the shop in dispute bearing No.2‑7/22, which was in occupation of the tenant namely Naseer. Petitioner further explained that he is enjoying retired life and is running his daily affairs from the rent of said shop, as well as the rent being received from another shop situated at Zonki Ram Road, Quetta. He further explained that besides these two shops the applicant is also owner of third shop which is presently in the occupation of his son namely Wali who is running the business of PCO therein through hi employee. It was further pointed out that his said son (Walt) is actually in the employment of Livestock Department, posted at Pishin and as salary so being received by him is not sufficient to meet with his expenses, therefore, applicant in his lifetime gave the said shop to him to improve his economic condition. The above explanation, which is embodied in eviction application abundantly, makes it clear that the petitioner concealed nothing at the time of institution of the application. However, it is pertinent to point out that after filing of the eviction application the shop in the occupation of Naseer was vacated. Now in such situation question is as to whether petitioner should have accommodated his son Abdul Wasay in the shop which was vacated by Naseer or he should have restricted to the cause of action which has accrued to him for obtaining the possession of the shop which was in occupation of the respondent to cater the requirement of his son who is student in B.A Part‑I in Degree College, Quetta. Suffice is to observe that it is the ' prerogative of the landlord to express suitability in respect of any shop which `B is required to be occupied by the landlord either for himself or for children and his such right cannot be curtailed under any flimsy consideration. It is also important to note that Abdul Wasay for whom the shop is required to be vacated is not in occupation of any other suitable shop, therefore, for such reason we are of the opinion that the petitioner legally had an obligation to establish his case for obtaining possession of the shop from the respondent in respect of the shop which he earmarked for the use and occupation of his son notwithstanding the fact that adjacent shop was vacated by respondent. It may be noted that respondent had taken a stand that after obtaining possession of the shop from Naseer the petitioner intended to lease it out further because a board i.e. for let out was displayed on this shop but he C could not prove his such contention because except showing the photograph of the board on the door of the shop there is no other convincing evidence on record. As far as displaying of such type of board is concerned it is quite convenient because anyone can do so with mala fide intention. Whereas contrary to it strong evidence has come on record that the petitioner who had no source to earn livelihood except the rent which he used to receive from Naseer and from another shop situated at Zonki Ram Road, Quetta, on getting possession from Naseer had occupied the same for the purpose of running his own business with a view to improve his economic condition. In this behalf it may also be noted that it is not necessary that essentially one should run business personally because he can also do ~so through a servant as his son Wali is already doing in the adjacent shop. As far as petitioner s son Abdul Wasay is concerned of course he would be running independent business after completion of education because be had no chance to get good employment. This factor has come on record through the statement of petitioner as well as his son Abdul Wasay. It tray be noted that as far as occupying a non‑residential building by a landlord for his child is concerned, it is a question of fact which is to be decided on the basis of available material instead of denying relief to the landlord/petitioner merely on the basis of surmises or conjectures as well as contrary to the facts available on record. In our opinion in the instant case the petitioner has produced overwhelming evidence to prove that the shop in occupation of the respondent is required in good faith for running the business by his son Abdul Wasay who is riot presently occupying any non residential building for doing so. But learned High Court as well as Controller failed to appreciate the case of petitioner in its real perspective, and denied relief to him without am legal justification. Thus for the foregoing reasons the petition is converted into appeal and allowed. As a result whereof eviction application dated 6‑5‑2000 filed by petitioner is accepted and the respondent is directed to hand over vacant possession of premises bearing Municipal No.2‑7/22, Fatima Jinnah Road, Quetta to petitioner. Parties are left to bear their own costs.

9. The petition was converted into appeal and allowed by means of our short order dated 10‑5‑2002 and above are the reasons for the same. O.M.H./M.A.K./M‑421/S Appeal allowed.