1985 PLP 1988 (SCMR)

ABDUL KADIR SHAIKH, J.‑‑This appeal by leave is directed against the judgment of Baluchistan High Court dated 16‑5‑1985 dismissing appeal filed by the appellant and thereby confirming the order of the Rent Controller, Quetta dated 15‑12‑1983 by which appellant's application for respondent's eviction from the demised premises was dismissed. Appellant filed an application under section 13 of Baluchistan Urban Rent Restriction Ordinance, 1959 for respondents eviction from the demised premises on the ground that she requires the demised premises for her personal use and occupation, and the respondent was also guilty of default in payment of rent. It is uncontroverted fact that appellant is about 70 years of age, and she is serving as the Headmistress in St. Gabriel School, Quetta and she lives in the accommodation provided by the School, and apart from the house rented to respondent, she owns no other residential premises in Quetta. According to appellant she is to retire from service and will have to vacate the residential accommodation provided to her by the School. The Rent Controller, after recording evidence of the parties, held that since petitioner is not a Government servant, the benefit provided by the Ordinance in this behalf is not available to her, and "moreover the evidence of the respondent reveals that applicant intends to sell the house in question which shows that the ground of personal requirement is mala fide". On this view of the case learned Rent Controller dismissed the application. Appellant's challenge to this order in the High Court failed, for, the learned Judge in the High Court who heard the appeal took the view that since appellant had not even mentioned the date on which she would retire from service and she has not received any intimation or notice from the School where she is saving? and also that she had purchased a house which she sold before filing the ejectment application, her plea that she required the demised house for her personal occupation was not bona fide. The relevant portion of the judgment of the High Court may be reproduced hereunder:‑ "Although it was not necessary for the appellant to wait till her actual retirement to claim possession of the house for her own requirement yet she has based her case on her retirement, therefore, she had to show that she was actually retiring. The only fact which defeats her claim is that she sold a house before filing this application. It is admitted by her that she had purchased a house in May, 1981 and then sold it after about a year. This fact goes strongly against her. If she required the house for her bona fide personal requirement why she did sell a house." On this view of the case learned Judge in the High Court dismissed the appeal by the judgment dated 16‑5‑1984. Leave to appeal was granted to the appellant from the judgment of the High Court in order to examine the plea, firstly, whether the High Court has failed to appreciate that .since appellant is residing in premises provided to he by the School where she is serving, and which she has to vacate due to the fact that she has already reached the age of 70 years and has to retire from service, she is entitled to reside in her own house. Secondly that the High Court had failed to appreciate that mere fact that appellant had sold another property before filing the ejectment application is no bar to her entitlement under the law to reside in her own property. Thirdly, whether the conclusions of the learned Rent Controller as well as the learned Judge in the High Court that appellant intends to sell the house in question are based on mere surmises and conjectures rather than evidence proved in the case. After having gone through he record of the case in the light of the submissions made by the learned counsel, we find that this appeal must succeed on all the points on which leave was granted, for, admitted at the time when appellant filed application for respondent's eviction she owned no other residential property in Quetta except for the demised premises where she can reside after vacating the premises made available to her by the School where she is serving as the Headmistress. She has already reached the age of retirement and even otherwise she is entitled under the law to reside in the property belonging to her. Mr. Basharatullah learned counsel for the respondent submitted that since appellant's case was that she required the demised premises on retirement from service, she ought to have resorted to the course of action available to her under section 13(b) of the Ordinance, and the application under section 13 was, therefore, not maintainable. This plea has no substance, for, the appellant had sought respondent's eviction on two‑fold grounds, firstly, that the tenant was defaulter in payment of rent; and secondly, that she bona fide requires the premises for her own use. Since she was entitled to seek eviction of the tenant ‑on the first ground, apart from the second one, the application filed by her under the provisions of section 13 of the ordinance was competent, irrespective of the fact that on the second ground she was also entitled to resort to the course available to her under section 13‑(B) of the Ordinance. For these reasons, this appeal is allowed with the result that the impugned judgment of the High Court dated 16‑5‑1984 as well as the order of the Rent Controller, Quetta dated 15‑12‑1983 are set aside, and the application filed by the appellant under section 13 of the Ordinance is allowed. In the final result, respondent is directed to, hand over vacant possession of the demised premises to the appellant forthwith. In the circumstances, however, the parties are left to bear their own costs. M. Y. H.????????????????????????????????????????????????????????????????????????????????????????????? Appeal allowed.