P L D 1984 Quetta 46 (PLP)

The appellant is a tenant of the respondent in House No. 8‑15/38 McConghey Road, Quetta. The respondent had filed an application for eviction of the appellant on the ground that he was due retirement within a period 31 months and he had already been relieved from service and had proceeded on L. P. R. He was in occupation of a Government accommodation which he could not retain after retirement. The respondent issued a notice to the appellant as contemplated under section 13‑B(1)(b) of Baluchistan Rent Restriction Ordinance as amended by Ordinance III of 1980. The appellant contested the application and following issues were framed by the Controller :‑ (1) Whether the application is premature and is not maintainable in view of P. O. A. of written statement ? (2) Whether the premises in question is required by the applicant reasonably and in good faith for his own use and occupation ? (3) Whether the application is liable to be dismissed in view of P. O. C. of written statement ? (4) Relief ? The Controller decided all the issues in favour of the respondent and directed eviction of the appellant.

2. The main issue was in respect of bona fide requirement of the respon dent. It is an admitted position that the respondent bad retired from service and that he is in occupation of no other accommodation except the one which has been given to him by the Government and which could be retained during the tenure of his service.

3. The counsel of the appellant has raised two points in appeal. His first contention is that the family of the appellant has been residing at Rahim Yar Khan. The respondent has admitted in cross‑examination that his son is employed at Rahim Yar Khan in a Bank and his family has gone there. His elder daughter is also living at Rahim Yar Khan. His one daughter and one son were at Karachi, It is .not said that the respondent himself has permanently shifted somewhere out of Quetta. The respondent said that his wife had gone to Rahim Yar Khan at that time. He denied categorically that his wife was permanently living at Rahim Yar Khan. Even if that be so still as long as it is not said that the respondent himself had left Quetta for good, the case of the respondent would not be defeated. The respondent does not say in the application that he required the house for the use of his family. He says that he requires the house for his personal use and occupation,

4. The appellant had led evidence that the respondent wanted to increase rent to Rs.

300. The counsel of the appellant urged in the Court here that the appellant would enhance rent as much as was demanded by the respondent. If that had been the position why at all the appellant led evidence to show that he was not prepared to increase rent when such overtures were made by the respondent. This is an afterthought and has no basis and does not rebut the respondent's plea of personal requirement on his retirement.

5. The next contention of the counsel of the appellant is that it was not sufficient for the respondent to say that he required the house for his personal. use but he had to prove it. The respondent has proved the necessary ingre dient, i. e. that he has retired from service and he has to vacate the Govern ment .Quarter which is an admitted feature. This is sufficient evidence that the requirement of the respondent is bona fide and be in good faith requires the house for his personal use.

6. The counsel of the appellant urged that the respondent's application was premature. In case the landlord being a salaried person wants possession of the house and he has to retire within a period of 6 months, he has to give a notice in writing to the tenant under section 13‑B of the Ordinance requiting the tenant to hand over possession of the premises within two months. The contention of the counsel of the appellant was that the appli cation was filed before the expiry of two months from the date of receipt of the notice. In the first instance, this ground had not been taken by the appellant in the written statement filed before the Controller. According to section 13‑B (1)(b) of the Ordinance as amended by amending Ordinance III of 1980 a landlord who has retired or is about to retire within a period of 6 months can call upon the tenant to hand over possession of the premises' in two months by a . notice in writing. The provision is reproduced as under :‑ "13‑13(1)(6). In a case where the landlord is a salaried employee and has retired or is due to retire within a period of six months, a notice in writing may be given by such landlord or the widow or minor of the deceased landlord as the case may be, to the tenant of a building informing him that be or she needs the building for personal use and requiring him to deliver‑ vacant possession of the building within a period of two months from the date of receipt of the notice." A tenant who has received notice under subsection (l) of section 13‑B who fails to deliver possession of the premises within the time allowed in the notice is liable to be ejected summarily. Subsection (5) of section 13‑B reads as under :‑ "

5. A tenant who on receipt of the notice referred to in subsection (1) fails to deliver vacant possession of the building to the landlord or to the widow or minor orphan of the deceased landlord within the time allowed in the notice shall be liable to be ejected summarily by the Controller on an application being made to him in this behalf." In case the tenant does not comply to the request made by the landlord an application can be filed by the landlord to the Controller and through such application the tenant can be summarily ejected. Non‑compliance by the tenant results in his summary ejectment by a Controller on an application made to him by the landlord under sections 5 and 6 of section 13‑B of the said Ordinance. The law has allowed two months time after service of notice under subsection (1) of section 13‑B to the tenant before he can be summarily ejected from the premises. The period of two months allowed to the tenant for handing over possession to the landlord is not an essential prerequisite of the proceedings initiated by the landlord before the Controller under this provision. However, the Controller cannot direct summary ejectment of the tenant before the expiry of two months from the date of notice where the landlord files an application for ejectment on the ground provided under section 13‑B of the Ordinance before the expiry of period of two months. In fact the provision of law as contained in subsection (5) of section 13‑B of the Ordinance is a facility granted to the tenant to vacate the premises in two months time. A tenant would be liable to vacate the premises when demanded so by the landlord forthwith but this for provision. His summary ejectment too cannot be directed unless this period has expired. In such a case what is to happen would be that in case the application is filed before the expiry of two months of the service of notice, the Controller would give two months time before calling upon the tenant to vacate the premises and that the landlord would not get costs of the proceedings. In the present case there is an another reason for which this objection is not substainable. The appellant sent a reply to the notice of the respondent refusing to vacate the premises. When once the notice had been replied and to question of landlord turned down it was not necessary for the landlord to wait for two months for filing the application. The appellant had expressed his intention to resist the application of the respondent. Moreover, this objection had not been taken by the appellant in the written statement filed by him before the Controller. This ground has also nut been taken in appeal. If he had taken such an objection in written statement, the Controller would have examined it in the first instance. I also find that the Controller passed an order of the appellant's eviction after protracted proceedings as has been done in other similar proceedings under section 13 of the Ordinance. The Controller has not directed summary ejectment of the appellant and appears to have exercised jurisdiction under section 13(3)(6) of the Ordinance and not under section 13‑B (6) of the said Ordinance. On this ground also the appellant has no case. The appeal is, therefore, dismissed but the appellant is further allowed two months time to put the landlord in possession of the premises. Parties are left to bear their own costs. S Q Appeal dismissed.