P L D 1993 Quetta 105 (PLP)

Muhammad Amin alias Sher Agha feeling dissatisfied from the order dated 28th February, 1993 passed by Civil Judge-I/Controller in eviction application moved by respondent Haji Muhammad Din whereby he was directed to hand over the vacant possession of the shop bearing Municipal No. 10-9/2123 (H) constructed on Khasra No. i2265/418 Khatooni No. 287/342 measuring 1,876 Sq. Ft. situated at Jail Road, Quetta has preferred this appeal.

1. Facts as stated are that an eviction application was moved on 27th April, 1992 by respondent before the Civil Judge/Controller seeking ejectment of the appellant from the premises referred to hereinabove on the ground of the default in payment of rent as well as for demolishing and reasonably reconstruction of the shop for personal use and occupation of his son, Niamatullah.

2. The appellant filed written statement on 27-7-1992 denying the ownership of the respondent in the shop for want of knowledge. However it was contended that he had been receiving the rent on behalf of Sher Muhammad, who rented out the shop to him. Besides, repudiating the claim on merits.

3. The Controller on' 27-2-1992 framed following issues for determination:-- (1) Whether there exists relationship between the parties as tenant and landlord? (2) Relief.

4. The respondent as well as appellant besides making their own statements, also got recorded the evidence of the witnesses in support of their respective pleas and ultimately the Controller vide impugned order dated 28-2-1993, issued direction to appellant for handing over the possession of the shop to respondent, without framing and trying issues on merits.

5. M/s. Mushtaq Anjum, Advocate and Sardar Nazir Ahmad DurranL Advocate appeared for the appellant and urged that, appellant had not denied the status of respondent to be landord for the purposes of collecting rent. As it has been defined under section 2 (f) of the Balochistan Urban Rent Restriction Ordinance V1 of 1959. However, they emphasised that the appellant was not possessing sufficient knowledge regarding the ownership of the disputed premises by the respondent. 5-A. On the other hand Mr. Gohar Yakoob Khan Yousufzai Advocate canvassed that the appellant had been paying the rent to the respondent for the last 16 years, and during this period he never objected on his authority to collect the rent. Thus under these circumstances the denial on the part of appellant to accept the respondent as landlord, was malicious. 6. 1 heard the learned counsel for parties and with their assistance the record of the case has been perused. It would be appropriate to reproduce below paras. I and 2 of the application and para No. I of the written statement, to determine. Whether the Controller was justified in framing the issue of relationship between the parties. Paras. I and 2 of the application: (1) That the applicant is the owner and landlord of-be -shop bearing Khasra No. 12265/418, measuring 1,87.6 sq. ft., Khatooni No. 287/342, situated at Ward No. 24, Mauza and Tappa Circle No.3, Jail Road, Hudda, Quetta and the respondent is his tenant at the rate of rupees 50 per month. (2) That the respondent is a bad pay master and has failed to pay or tender the rent of the shop in question since October 1991 uptil today and has made himself liable for eviction from the same. Para 1 of the written statement: (1) That contents of paras. 1 and 2 are denied for want of knowledge as to the ownership of the shop in question. The applicant has been collecting rent on behalf of one Sher Jan who rented out the shop to respondent consisting of four walls only without roof and after spending considerable amount on its construction repairs, the respondent made it. capable of utilization as a shop. The respondent also constructed a verandah in front of it. The respondent was paying regularly rent and after refusal he started depositing the same in Court up to May, 1992 for which he holds receipts and has not committed any default in payment of monthly rent. The applicant has not furnished any proof as to his ownership." On dose examination of above pleadings it emerge that the appellant did not deny the liability for making the payment of the rent to respondent. But he explained that respondent used to collect the rent, on behalf of one Sher Muhammad. The respondent produced Sher Muhammad as AW. 4, who deposed that he himself was tenant of Pir Muhammad and subsequently leased out the shop to appellant. Accordingly Pir Muhammad was also produced who stated that he was the owner of superstructure of the shop whereas the underneath land was an evacuee property which was transferred to the respondent through a permanent transfer order. He further deposed that he leased out the shop to Sher Muhammad who remained in its possession for one year. Thereafter, the shop was sold to respondent. The respondent in his statement has also admitted that Sher Muhammad was the tenant in the shop of Malik Pir Muhammad and when he vacated the shop, Malik Pir Muhammad inducted the appellant in it at monthly rent of Rs.

50. On the other hand the appellant as well his witnesses have supported his contention as has been mentioned above.

7. The rights of tenancy can be forfeited provided the tenant violates the provisions of Article 115 of the Qanun-e-Shahadat, 1984, subject to establishing by the landlord that the tenant has denied his entitlement during continuance of tenancy in the property which -as authorised to him to occupy as tenant and in consequence thereof the tenant without availing the right to defend himself would be liable for dispossession forthwith. However, the conduct of the tenant in denying the relationship will not be malicious act on his part if it is found that he admits the liability to make the payment of the rent but with some explanation. In this context reference can be made to Abdul Majid mia v. Moulvi Nabiniddin Pramanik and 3 other--, PLD j970 SC

465. As it is indicative from the pleadings reproduced hereinafter as well as, on perusal of evidence that the appellant, had never asserted against the entitlement of the respondent nor he tried to escape from the liability to pay the rent. As such the finding of the Controller on the issue of the relationship are not sustainable in the eye of law. For the foregoing reasons, appeal is allowed and order dated 28-2-1993, is set aside, case is remanded to Civil Judge/Controller for proceeding on merits, in accordance to law. Parties are left to bear their own cost. AA./452/Q Appeal allowed.