PLJ 1999 Quetta 27

Present: amanullah khan yasinzai, J.

DAD MUHAMMAD-Appellant

versus

NOOR ALI-Respondent F.A.O. No. 91/98, accepted on 11.9.1998.

(i) West Pakistan Urban Rent Restriction Ordinance, 1959 (VI of 1959)-

—S. 13 as amended by Balochistan Urban Rent Restriction (Amendment) Ordinance, (VIII of 1985)--Default in payment of rent-Provision of S. 13 (as amended) West Pakistan Urban Rent Restriction Ordinance 1959-Postulates that on admission of default by tenant, Rent Controller would direct tenant to deposit the same and on such deposit Rent Controller would dismiss eviction application-Tenant had although admitted his liability towards payment of rent yet he had taken stand contrary to written statement-Even where notice under Section 13-A relating to change of ownership was not proved (still filing of eviction application would amount to notice under Section 13-A of the Ordinance and tenant was under legal obligation to have made payment of rent from date landlord had acquired title of premises-Tenant admittedly having committed default was liable to be evicted from premises in question.

[P. 35] A

(ii) West Pakistan Urban Rent Restriction Ordinance, 1959 (VI of 1959)-

—S. l3--Bona fide personal need of landlord-Landlord in his evidence had categorically stated that he had purchased premises in question from its previous owner and that same was required by him and his sons for running hotel as he and his sons were jobless-Tenant had brought nothing on record to show that landlord and his sons did not require premises in question for their personal use and occupation-Landlord's, requirement of premises for himself and his sons thus, stood proved.

[P. 35] B

(iii) West Pakistan Urban Rent Restriction Ordinance, 1959 (VI of 1959—

—S. 13-Specific Relief Act (I of 1877), S. 12-Application for ejectment of tenant-Landluni setting up agreeint-at of sale against the same-Effect-Agreement of sale did not confer any title unless the same had been determined in favour of tenant by competent court of jurisdiction-Rent Controller, thus, fell in error in holding that relations of landlord and tenant between parties could be determined after final decision of suit pending before Civil Court-Tenant during pendency of suit for specific performance of agreement where landlord was not even a party, could (not be allowed by challenging title of landlord and retain possession of premises in questi> in-Landlord was, therefore, entitled to seek eviction of tenant-Tenant w;>> directed to vacate premises within specified period.

[Pp. 36 & 37] C, D

PLJ 1997 SC 2037; PLJ 1996 SC 1306 and PLJ 1996 SC 1208 ref. 1977 SCMR 1062; 1996 SCMR 1178 and 1996 SCMR 877 ref.

Mr. K.N. Kohli, Advocate for Appellant.

Ch. Mumtaz Yousaf, Advocate for Respondent.

Date of hearing: 2.9.1998.

judgment

This appeal u/S. 15 of the Balochistan Urban Rent Restriction Ordinance VI of 1959 (hereinafter referred to as the Ordinance) has been preferred against the Order dated 12.5.98 passed by Civil Judge-IV-Cum-Rent Controller, Quetta whereby Eviction Application filed by the appellant was ordered to be dismissed.2. Briefly stated the facts are that the appellant filed an Eviction

Application against the respondent in the court of Civil Judge-IV-Cum-Rent Controller, Quetta on 5.3.96 in respect of shop bearing Municipal No. 4-24/14 Khasra No. 252 situated in Mahal No. 33 Tappa Urban, Quetta (hereinafter referred to as the shop in dispute), averring therein that the appellant had purchased the shop in dispute from its previous owner Shakeel Ahmad and thereafter informed the respondent regarding transfer. of the shop in dispute vide notice dated 17.12.95; respondent failed to make payment of the rent and further stated that the shop in question is required in bona fide good faith for himself and his sons for running a hotel. The respondent resisted the application and filed his written statement on 6.5.96. It was stated in the written statement that the previous owner entered into an agreement to sale with the respondent and it was agreed that previous owner would sell the shop in dispute for a consideration of Rs. 300,000/- to( him and had received an amount of Rs. 300,OOO/- to him and had received an amount of Rs. 50,000/- as earnest money. Thereafter, arbitrators were appointed who gave their award. The Respondents have stated that a civilsuit has been filed in the court of Civil Judge whereby title of the appellant had been challenged. Out of the pleadings following issues were framed:-"(1) Whether exists relationship of landlord and tenant between the parties?

(2) Whether the shop in question reasonably and in good faith required by the appellant for his personal bona fide need and occupation in order to start his own business?

(3) Whether the Eviction Application is not maintainable in viewofP/OofW/S?

(4) Relief?

*

3. In support of the application the appellant produced AW-1 Raz Muhammad, AW-2 Baz Muhammad, AW-3 Dawood, AW-4 Khudaidad Patwari who tendered Ex." A/1 and statement of the appellant was recorded who tendered Ex. A/2 and Ex. A/3. In rebuttal the respondent produced RW-1 Nadir Shah, RW-2 Abdul Majeed, RW-3 Muhammad Haneef who tendered document Ex. R/l RW-4 Javed Hasan tendered Ex. R/2 and statement of the respondent was recorded.

4. After hearing the parties, the learned Rent Controller dismissed the application vide order dated 12.5.98; hence this appeal.

5. Mr. K.N. Kohli Advocate for the appellant contended:

(i) That the appellant landlord through evidence and his statement proved that the respondent had committed default and the premises in dispute was required by him in good faith but the learned Rent Controller on the basis of the civil suit being before the Civil Judge erred in dismissing the application on the sole ground that since the title of the landlord was challenged by the respondent in a Civil Court; thus till determination of the title, the Eviction Application cannot be allowed.

(ii) That since the appellant had proved that he was landlord of the premises in dispute the .Rent Controller had no jurisdiction to go into the title of the appellant only on the basis of the suit filed by the respondent in which the appellant was not a party.(iii) That though the respondent admitted his liability to make payment of the rent to the appellant but the learned RentController erroneously did not take the same into consideration.

6. Mr. Ch. Mumtaz Yousaf Advo ate for the respondent contended that the learned Rent Controller had rightly dismissed the Eviction Application as the title of the previous wner was fraudulently made in favour of the appellant and further that agreement to sale had been arrived at between the respondent and the previous owner; thus the appellant had filed :i suit for specific performance and further stated that even prior to the filing of the Eviction Application; there was an arbitration agreement whereby the Arbitrator had given award in avour of the respondent but the parties failed to abide by the terms of the award. Thus the learned Rent Controller rightly dismissed the Eviction Application as the title of the !appellant was challenged in a court of competent jurisdiction.

7. Before discussing the grounds raised by the learned counsel for the parties, it would be appropriated to refer to the Eviction Application and the evidence produced by the parties.8. It is the case of the appellant as set up in the Eviction Applicationthat he purchased the shop in dispute from he previous owner and !mutations were duly recorded in his name and thi-i <-after notice was sent to jthe respondent apprising him about the transfer of ownership and thereafter • \he refused to tender rent and the shop was also required by him in good ffaith. In support of his contention he produced the witnesses as mentionehereinabove.

9. AW-1 Raz Muhammad stated that the appellant was his brotherand had purchased the premises in dispute from the previous owner ShakeelAhmad and now the premises in dispute are required by the appellant andhis sons as they are jobless. In cross-examination he denied that ShakeelAhmad prior to the sale of the shop in favour of the appellant entered into asale agreement with the respondent and also received an amount ofRs. 50,000/- as earnest money and he further denied that the shop in disputeis not suitable for running hotel (restaurant). He further denied that therespondent was not apprised about the transfer of the shop in dispute andfurther stated that the appellant had ten children. His eldest son was 20ypars old and the youngest was 6 months old. He further denied that thepremises in dispute is not needed by the respondent for himself and his sons.

10. AW-2 Baz Muhammad stated that the appellant is his brother. He purchased the shop in dispute from its previous owner about ten months ago and the respondent is a tenant in the said shop and after purchase the respondent never paid rent to the appellant and appellant requires the shopfor his use and use and occupation of his sons. In cross-examination he stated that efore Shakeel Ahmad the shop in dispute belonged to all thebrothers and after partition it came to the share of previous owner Shakeel hmad and further denied that Shakeel Ahmad agreed to ell all his property to the tenants. He denied that Shakeel Ahmed entered into sale agreement with the respondent and received Rs. 50,000/- as earnest money. He further denied that the shop in dispute was transferred in the name of Baz Muhammad and thereafter in the name of the appellant. He also denied that an arbitration agreement was executed and arbitrators were appointed who gave their award in favour of the respondent and directed the previous owner to make payment of Rs. 1400,000/- to respondent. He denied that th —o*' appellant is doing business of otor-vehicles at Basheer Motors. The witness voluntarily stated that the same belonged to his other brothers. He denied that the appellanl and his sons are not jobless.

11. AW-3 Dawood stated that he knew the appellant who is the landlord of the shop in dispute and the respondent was tenant and the shop was required by the appellant for his own personal use and occupation. Incross-examination he stated that he is doing business of Motor-Vehicles at Basheer Motors and denied that the appellant was also doing Motor-Vehicle Business. He voluntarily stated that the said Show-Room belonged to Baz Muhammad who is brother of the appellant. He further denied that the shop in dispute is not suitable for running hotel (restaurant).

12. AW_4, representative of Revenue Department tendereddocument Ex. A/4 wherein the property in dispute has been transferredfrom the name of previous owner in the name of the appellant.

13. In his own statement the appellant stated that he purchased the shop in dispute from its previous owner and after becoming owner of the same he apprised the respondent vide Ex. A/2 about the tansfer and also tendered registered receipt vide Ex. A/3 and further stated that after purchase of the property in dispute, the respondent failed to make payment of rent to him and further stated that the shop in dispute is required by him and his sons for running hotel/restaurant. In cross-examination he admitted that before tansfer in his name the shop in dispute belonged to hakeel Ahmad. He showed his ignorance that Abdul Majeed had rented out the shop in dispute to the father of the respondent. He admitted that after the death of Abdul Majeed the shop in dispute fell to the share of Shakeel Ahmad from whom he purchased the said shop. He denied that the arbitration agreement was executed in respect of the shop in dispute. He further denied that the shop in dispute was not required by him and his sons. He stated that he had ten (10) children; the eldest was 23 years old andthe youngest was three years old. He further stated that he informed the respondent about the transfer of the shop orally and admitted that the respondent had not paid rent to him and admitted that his elder brother Baz Muhammad deals in property and Motor ehicles and denied that the shop in dispute is not required in good faith and further denied that the application is based on malafides.

14. RW-1 Nadir Shah stated that he knew the parties and had seen the shop in dispute and stated that prior to the appellant, Shakeel Ahmad was owner of the shop in dispute and the same had been rented out to the father of the respondent about 35 to 40 years back and respondent has been keeping the shop in dispute as a tenant and further stated that Shakeel Ahmad entered into an agreement to sale in respect of the shop in dispute with a consideration of Rs. 310.000/- out of which Rs. 50,000/- was paid as earnest money thereafter Shakeel Ahmad sold the shop in dispute to the appellant and further hat the arbitration agreement was executed between Baz Muhammad, brother of the appellant, Shakeel Ahmad and .respondent wherein the arbitrators gave their award and directed Baz Muhammad and Shakeel Ahmad to pay Rs. 14,00,000/-, to the respondent. Further stated that instead of making payment of the same, the appellant filed the said Eviction Application. In Cross-exmination he denied that Shakeel hmad had not entered into any sale agreement with the respondent in respect of the shop in dispute. He further stated that receipt was executed by Shakeel Ahmad acknowledging Rs. 50,000/-. He denied that the appellant is the owner of the shop in dispute but admitted that the shop was entered in the name of the appellant in the revenue record and stated that Younus Mandokhail was appointed as Arbitrator by Shakeel and Muhammad Naeem was arbitrator on behalf of Baz Muhammad. He further stated that he himself executed the arbitration agreement arrived at between the parties. He denied that any arbitration agreement was executed nor arbitrators were appointed. He further denied that the shop in dispute is not required by the appellant and his sons for their personal bona fide use and stated that the appellant is doing business of Motor Vehicles at Basheer Motors and further denied that the appellant and his sons are jobless.

15. RW-2 Abdul Majeed stated that he knew the respondents since 1982 and he was tenant of Shakeel Ahmad and an agreement to sale was entered into between Shakeel Ahmad and respondent for a consideration of Rs. 300.000/- out of which Rs. 50,000/- was paid to respondent Shakeel Ahmad as earnest money and thereafter Shakeel Ahmad entered into an agreement to sale with one Baz Muhammad and then an arbitration agreement was executed between the respondent, appellant Baz, Muhammad and Shakeel Ahmad and arbitrators gave their award wherein Rs. 14,00,000/- were directed to be paid to the respondent and said Baz Muhammad and Shakeel Ahmad did not make payment to the respondent and thereafter this Eviction Application was filed. In cross-examination he stated that prior to the appellant, Shakeel Ahmad was owner of the shop in dispute. He further stated that he had seen the sale agreemejt between Shakeel Ahmad and respondent which was' executed on a plain paper. He denied that no such agreement was executed and further admitted that Rs. 50,000/- were not paid in his presence to Shakeel Ahmad. He denied that the previous owner Shakeel Ahmad sold the shop in dispute to the appellant and also denied that Shakeel Ahmad did not enter into agreement to sale with Baz Muhammad and admitted that the respondent had not paid any rent to the appellant arid stated that the shop in dispute was not suitable for running hotel. He further denied that the appellant and his sons are jobless and further denied that the shop will be occupied by the appellant and his sons.

16. RW-3 Muhammad Haneef stated that we wrote the agreement Ex. R/l wherein respondent Shakeel Ahmad and Baz Muhammad agreed to refer the matter to arbitration.

17. RW-4 Javed Hassan tendered Ex. R/2 being General Power of Attorney executed in favour of Baz Muhammad by Shakeel Ahmad.

18. The respondent in his statement stated that the shop in dispute was rented out to his father by Abdul Majeed and after his death the property devolved upon Shakeel Ahmad who entered into a sale agreement with him and other tenants. It was agreed that the sale price of the shop was fixed at Rs. 310,000/- out of which Rs. 50,000/- was paid and he produced photo-stat copies of the receipt Mark R/D and further stated that the shop was sold by Baz Muhammad and his brother to-the appellant and stated that receipt Mark R/l was executed in the house of Shakeel Ahmad and thereafter an arbitration agreement was executed between him, Shakeel Ahmad and Baz Muhammad. The arbitration agreement was mark R/2. He further stated that the arbitrators gave their award Mark R/3 wherein
Shakeel Ahmad and Baz Muhammad was directed to make payment of Rs. 700,OOO/- each to him but they refused to make payment and thereafter the appellant filed the said Eviction Application. He further stated that he has filed a civil suit in the court of Senior Civil Judge, Quetta against Shakeel Ahmad and Baz Muhammad. In his statement he stated that Baz Muhammad had filed 17 Eviction Application against different tenants which were accepted by the appellant and further stated that the instant Eviction Application filed by the appellant was based on malafides and theshop in dispute was fraudulently obtained by him. He further stated that he had no knowledge about the sale of the said shop and further stated that he did not remember the date of execution of Mark R/l. He denied that Rs. 50,000/- was not paid by him. However, he stated that no time was fixed for payment of the remaining amount. He denied that any agreement was executed for referring the matter to arbitrators and admitted that in the revenue record the shop in dispute is entered in the name of the appellant and admitted that he had not paid any rent to him and further that the shop in dispute was never transferred in the name of Baz Muhammad. He denied to have admitted the relationship of landlord and tenant in the written statement and admitted that the appellant is owner of the shop in dispute. He further stated that he had transferred the shop in his name fraudulently and further denied that the shop in dispute is required by the appellant in good faith.

19. Adverting to the argument of Mr. K.N. Kohli Advocate regarding issue of default, the learned Rent Controller while deciding this issue against the respondent has held that the appellant failed to show that any notice U/S 13-A of the Ordinance was served upon the respondent. The learned Rent Controller has held that since the very title of the appellant regarding the shop in dispute was challenged; thus he cannot be declared as owner till determination of the civil suit. It may be mentioned here that the findings regarding default are based on misreading and a wrong assumption of law. In written statement the respondent admitted the liability of rent in preliminary objection 'B' and has prayed that the question of default be straight away dismissed under Balochistan Urban Rent Restriction Amending Ordinance, 1985. It may be added here that the amendment was made in the Section '13' Ordinance known as Balochistan Ordinance VTII f 1985 which is reproduced as below:-» "Baluchistan Amendment:Provided further that where the application made by the landlord is on the ground mentioned in clause (i) and the tenant on the first date of hearing admits his liability to pay the rent due from him, the Controller shall, if he is satisfied that the tenant has not made such default on any previous occasion, direct the tenant to deposit all the rent due from him on or before a date to be fixed for the purpose, and upon such deposit being made he shall make an order rejecting the application."

20. From the reading plain of the afore said amendment if thetenant admits his default, on the direction of the Rent Controller depositsthe same, the Rent Controller shall dismiss the Eviction Application. In the -^ case in hand, though the respondent has admitted his liability towards payment of rent but has taken stand contrary to the written statement. The observations of the learned Rent Controller that the respondent had denied the payment of rent is based on misreading. It may be added that even if notice u/S. 13-A of the Ordinance was not proved still filing of Eviction Application would amount to notice nder Section 13-A of the Ordinance and respondent was under legal obligation to have made payment of rent from the date the appellant became the landlord of the shop in dispute but the witnesses produced by the respondent have admitted that the respondent has not paid rent to the appellant after transfer of the shop in dispute and even in his own statement he has denied to have made payment of rent to the appellant. The respondent had committed default and was liable to be evicted from the shop in dispute. As regards the title of the respondent, the same will be discussed later. Thus the issue regarding payment of default is decided in favour of the appellant and it is held that the' " respondent has committed willful default.21. Reverting to the issue regarding personal requirement, it has been the case of the appellant that the shop in dispute was required in good faith by him and his sons for running a hotel. As discussed hereinabove, the witness produced by the appellant were cross-examined at length but their testimony could not be discredited by the respondent. It may be mentioned that in his won statement the appellant categorically stated that he had ^purchased the shop in dispute from its previous owner and the same was required by him and his sons for running a hotel as he and his sons were jobless. Nothing was brought on record to show that he and his sons did not require the shop in dispute for their personal use and occupation. Thus the appellant had independently proved the question of personal requirement. In this regard I am fortified with the view taken in Juma Sher vs. Sabz ALi, PLJ 1997 SC 2037 = 1997 SCMR 1062 wherein following observations were made :-

"Mr. Younus Shah, the learned counsel for the respondent very vehemently argued that the learned Judge in Chambers after appraisal of the full evidence in the case"reached the conclusion that the evidence of the appellantwas not confidence inspiring and therefore, he was justified in reversing the said evidence. We are unable to accept the contention of the learned counsel for the respondent. We have gone through the statement of the appellant recorded before the Rent Controller in the case. The appellant in hisevidence clearly stated that he required the premises for his personal and bona fide need and that he is presently not occupying any other shop or premises where he could do the business in the cantonment area. He was subjected to a very lengthy cross-examination by the counsel for the respondent but his evidence could not be shaken. Nothing was brought on record to show that the appellant was in possession of any other property in the cantonment area suitable for his needs and requirements. It has been held by this court in the case Messrs F.K. Irani & Co. vs. Begum Feroze (PLJ 1996 SC 1306) = (1996 SCMR 1178) that even the sole testimony of the landlord is sufficient to establish the personal and bona.fide requirement of the landlord. In the case before us, the statement by the appellant on oath was quite consistent with his averments made in the ejectment application and neither this statement was shaken nor anything was brought in evidence to contradict his statement. In fact, the respondent did not'even step in the witness-box to controvert the testimony of the appellant in the case. In these circumstances the Rent Controller was fully justified in accepting the evidence of the appellant and ordering eviction of respondent from the premises."

22. Revelling to the contention of Mr. Mumtaz Yousaf Chaudhry Advocate that the Rent Controller had rightly dismissed the Eviction Application as the title of the appellant was challenged by the respondent in a civil suit. It may be added here that as far as ownership of the appellant in respect of the shop, in dispute is concerned, the same was proved through the statement of AW-4 wherein Ex.A/1 was brought on record showing that the property in dispute was transferred from the name of previous owner Shakeel Ahmad in the name of the appellant. The said contention of the learned counsel was not denied. Even in his statement the respondent admitted that though the property in dispute has been transferred in the name of the appellant but the same was done fraudulently. It may be mentioned here that the appellant filed a suit for specific performance against the previous owner Shakeel Ahmad and Baz Muhammad regarding agreement to sale of shop entered into between Shakeel Ahmad and respondent and further the terms of the award be acted upon. In the said suit the respondent has not been made a party. It is a settled principle of law that agreement to sale does not confer any title unless the same has been determined in favour of the respondent by a competent court of jurisdiction.The learned Rent Controller fell in error in holding that the relationship of landlord and tenant between the appellant and respondent can be determined after final decision of the suit pending before the civil court. It may be added here that the observations of the learned Judge are in total disregard of the principles laid down by the superior courts regarding legal value of the agreement to sale. Respondent during the pendency of the said suit where the appellant is not even a party, cannot be allowed by challenging the title of the appellant and retain possession of the shop. In this regard I am fortified with the view taken in Mst. Bore Bibi & others vs. Abdul Qadir and others, (PLJ 1996 SC 1208) = 1996 SCMR 877. In this case the agreement to sale was executed between one of the landlords and tenants wherein the tenants denied the title of the landlord and had filed a suit for specific performance and had further contended that till final disposal of the suit for specific performance of sale agreement, the tenants be allowed to retain possession of the rented premises. While disposing of the above contention, the Hon'ble Supreme Court held as below: -

"However, the Judge in Chambers of the High Court has taken pain and elaborately discussed the issues and assessed the value of the agreement deed and other documents. He has referred to various authorities in that respect and has come to the conclusion that a tenant cannot be allowed to retain his possession on such agreement till decision of their title by a Civil Court of competent jurisdiction. We do not find any defect with his observations and conclusion. The factum of the default of the payment of the rent and the other requirement of the landlord has been proved. We have neither been persuaded nor satisfied that any defect lies with the judgment of the Judge in Chambers of the High Court which may call for interference of this Court in its appellate jurisdiction. The appeal fails which is dismissed with costs."

23. Consequently as a result of the above discussion I am persuaded to accept this appeal. Thus the Eviction Application filed by the appellant is accepted and the respondent is directed to vacate the premises in dispute within a period of two months. Parties are left to bear their own costs.

(T.A.F.) Appeal accepted.