P L D 2014 Balochistan 96 (PLP)

JAMAL KHAN MANDOKHAIL, J.

The appellant is the landlord of shops bearing Nos.2-31-51 and 2-31-50(4) 1156/D, respectively, situated at Shahra-e-Liaquat Road, Quetta, and Usman Jogezai Road, Quetta. The respondent No.1 was his tenant in both the shops, therefore, an eviction application against him was filed by the appellant, which was accepted by means of the order and decree dated 20th May, 2002. The decree attained finality up to the Honorable Supreme Court of Pakistan, however, the respondent No.1 was directed to vacate the shops in question within six months. On completion of the stipulated period, the possession of the shops was handed over to the appellant through the order of executing Court on 19th May, 2004. The respondent No.1 filed an application under section 13(4) of the Balochistan Urban Rent Restriction Ordinance, 1959 ("the Ordinance") on 28th September, 2005, with a plea that the appellant/ landlord has re-let the shops to the respondent No.2, therefore, the respondent No.1, being the previous tenant, is entitled for restoration of the possession. The application was contested by the appellant and the respondent No.2. The trial Court framed the following issues: (1) Whether the respondent rented out the two shops bearing municipal No.231-51/1157 (measuring 116 sq.ft.) (private No.3) Shahra-e-Liaquat Quetta and shop bearing Municipal No.2-31/50 (4)1156/D(private No.5) measuring 37 sqfi., Usman Jogezai Road, Quetta? (2) Whether the applicant is entitled for the possession of disputed shops bearing Municipal No.231-51/1157 (measuring 116 Sq.Ft.) (Private No.3) Shahra-e-Liaquat Quetta and shop bearing Municipal No.2-31/50 (4) 1156/D (private No.5) measuring 37 Sq.fi., Usman Jogezai Road, Quetta? (3) Relief claimed for? Additional Issues: (1) Whether the eviction application is not maintainable in view of preliminary legal objections "A, B & C" raised by the respondents in their written statement? The respondent No.1/applicant produced five witnesses and recorded statement through his attorney. In reply, the appellant also produced five witnesses and recorded his own statement. The respondent No.2 only recorded his statement. On conclusion of the trial, the Rent Controller on 28-2-2012 accepted the application only to the extent of one shop, i.e. No.231-51-1157, situated at Shahrae-Liaquat, Quetta. The appellant and the respondent No.2 were directed to restore the possession in favour of the respondent No.1. Feeling aggrieved, the present appeal has been filed.

2. Learned counsel for the appellant states that the appellant entered into a partnership agreement to start joint business with the respondent No.2, therefore, he is not a tenant. He stated that that the applicant/respondent No.1 has failed to prove a relationship of landlord and tenant between the appellant and the respondent No.2, but the Rent Controller did not consider such fact. The learned counsel added that the respondent No.1 has failed to show that the possession of the shop was handed over to the respondent No.2 within two months, as prescribed in section 13(4) of the Ordinance. He further stated that the application before the Controller has been filed after a long time without any explanation, therefore, on this score as well, the respondent No.1 was not entitled for the relief claimed for. The learned counsel lastly argued that the impugned order of the Controller is contrary to law and facts therefore, the same is illegal.

3. Learned counsel for the respondent No.1 opposed the contention and stated that admittedly, the shop in question is in the possession of the respondent No.2 and the income tax returns submitted by him shows that he is a sole proprietor of the business and the name of the appellant does not figure in the return as a partner or shareholder, therefore, it is proved that the respondent No.2 alone is occupying the shop in his capacity as a tenant of the appellant, which is a violation of the provisions of section 13(4) of the Ordinance. The learned counsel argued that no time period for falling of the application under section 13(4) of the Ordinance has been provided, therefore, the objection of the appellant is baseless. The learned counsel added that no illegality or irregularity has been pointed out in the order impugned by the learned counsel for the appellant, therefore, the appeal is liable to be dismissed.

4. I have heard the learned counsel for the parties and have gone through the record of the case. Before going to dilate upon the merits of the case, it would be appropriate to reproduce section 13(4) of the Ordinance as under:-- 13(4)-- "Where a landlord who has obtained possession of a building or rented land in pursuance of an order made under sub-paragraph (i) or sub-paragraph (ii) of paragraph (a) of section (13), does not himself or where the building, has been got vacated for the occupation of any of his children, such child does not occupy it within one month of the date of obtaining possession, [or have been so occupied is re-let within two months of the said date of any person other than the original tenant] the tenant who has been evicted may apply to the Controller for an order directing that he shall be restored to possession of such building or rented land and the Controller shall make an order accordingly. " The above provision of law consists upon two parts; first, that pursuant to an eviction order, a landlord himself or a child, for whose personal need, the premises was required, must occupy the premises within one month from the date of an eviction order, and secondly, the landlord must not re-let the premises within two months after obtaining its possession. The respondent No.1, in Para 9 of his application, states that "after sometime the applicant saw that instead of the respondent or his sons some new persons were making renovation in the said shop. On enquires it was revealed that one shop (measuring 116 sq.ft.) has been rented out to new tenant namely Ghulam Hazrat". The claim of the respondent No.1, as set out in his application, covers under second portion of section 13(4) of the Ordinance. Considering his application, it does not disclose the date of occupation of the shop by the respondent No.2, whereas the pre-condition for getting relief under section 13(4) of the Ordinance is to prove that the premises has been re-let to a person, other than the previous tenant, within two months, after getting its possession. In the instant case, the respondent No.1 failed to prove that the respondent No.2 had occupied the premises within two months, after getting its possession by the appellant. Besides, the respondent No.1 alleged that the disputed shop was rented out by the appellant to the respondent No.2 through a rent deed dated 17-6-2004, duly attested and entered in a register at Serial No.8 by a Notary Public, namely Irshad Ali Advocate. To prove his contention, neither the deed, nor the register of the Notary Public has been produced before the Controller. There is not a single evidence proving any rent transaction between the appellant and the respondent No.2. Since the provisions of section 13(4) of the Ordinance are punitive in nature, therefore, to prove the contention of the applicant, reliable and cogent evidence are required. The witnesses produced by the respondent No.1 do not confirm the contents of the application nor supported his statement. Under such circumstances, the respondent No.1 has failed to prove the relationship of the landlord and the tenant between the appellant and the respondent No.2. To the contrary, the appellant produced a partnership deed before the Rent Controller, proving a business partnership between him and the respondent No.2, which is un-rebutted, therefore, the possession of the respondent No.2 over the premises is proved to be as a partner of the appellant. Moreover, the respondent No.1 has filed the application after a considerable long period, without any explanation. It is true that no period for filing such application has been provided by the Ordinance, but the claim must be registered within a reasonable time to show the intention of the claimant. The conduct of the respondent No.1 shows that he was either not serious about his claim or was not sure about the nature of the possession of the respondent No.2 over the shop. The Rent Controller, while deciding the application, failed to dilate upon these facts, as such, has come to a wrong conclusion, therefore, the order impugned is not sustainable. Thus, in view of what has been discussed herein above, the appeal is allowed. The impugned judgment and decree dated 28-2-2012 passed by the Controller/Senior Civil Judge-II, Quetta, is set aside. Consequently, the application under section 13(4) of the Ordinance filed by the respondent No.1 is dismissed. AG/114/Bal Appeal accepted.