PLJ 2001 SC 217
—S. 15-Constitution of
[Pp. 220 & 221] A, B & C
Mr. Muhammad Munir Peracha, ASC with Mr. Ejaz Muhammad Khan AOR for Appellant.
Mr. Ahmed Raza Kasuri, ASC with Mr. Karam Elahi Bhatti, AOR for Respondent
Date of hearing: 8.12.2000.
PLJ 2001 SC 217
[Appellate Jurisdiction]
Present: MUHAMMAD BASHES JEHANGIRI AND RANA BHAGWANDAS, JJ. MUHAMMAD INAYAT-Appellant
versus
SALEH MUHAMMAD-Respondent Civil Appeal No. 155 of 1998, decided on 8.12.2000.
(On appeal from judgment of High Court of Balochistan, Quetta
JUDGMENT
Rana Bhagwandas, J.--This appeal with the leave of the Court arises out of judgment dated 20.8.1996 rendered by a learned Judge in chambers of the Balochistan High Court setting aside the findings of the Rent Controller, Quetta and directing ejectment of the appellant from the demised shop premises on the ground of personal requirement of the premises for bonafide use and occupation of his son All Muhammad.
2. Respondent - landlord sought ejectment of the appellant from the shop premises originally let out on rent by his brother Haji Zarkoom Khan vide agreement of tenancy dated 13.12.1980. Ejectment of the appellant was sought on the ground of default in payment of rent without specifying the period of default and personal requirement for the use and occupation of respondent's son Ali Muhammad.
3. Appellant in his written reply traversed both the grounds and claimed that original landlord had executed tenancy agreement after receipt of Pagri of Rs. 42,500/- undertaking that he would not evict him subject to the payment of rent. It was his case that for running a Hair Dressing Saloon he had constructed bathrooms alongwith other accessories and obtained electricity, gas and water connections, fixed glass panned doors and laid flooring by spending huge amounts. With regard to default he asserted that he tendered the rent many a times but the respondent refused to receive the same as he wanted to enhance the rent at exorbitant rate. He was thus obliged to remit rent through money order which was refused with the consequence that he started depositing rent in Court which was deposited up to date. With regard to the ground of personal requirement appellant asserted that the respondent had let out a vacant shop adjoining to the shop in dispute recently after issuance of notice dated 19.1.1995 calling upon him to vacate the premises.
4. Learned Rent Controller settled two issues relating to bona fide personal requirement and default in payment of rent apart from a legal issue with regard to jurisdiction of the Rent Controller in view of a clause in the tenancy agreement. Both the parties adduced evidence in support of their respective contentions. On assessment, learned Rent Controller decided all the issues in favour of the appellant and dismissed the ejectment plea vide judgment dated 30.10.1995. On first appeal against order, however, a learned Judge of Balochistan High Court set aside the finding on the issue of personal requirement while concurring with the findings of the Rent Controller on other two issues. It is against this judgment that the present appeal was filed.
5. In order to fully comprehend the controversy between the parties it would be proper and advantageous to reproduce Section 13(3)(a)(ii) of the Balochistan Urban Rent Restriction Ordinance, 1959 (Ordinance VI of 1959) which reads as under :--
"13. Eviction of tenant--(l)...........................................................
(2) ...........................................................................................
(3) (a) A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession.
a .......................................................................................................
(ii) In the case of a non-residential building or a scheduled building or rented land if --,
(a) he requires it in good faith for his own use or for the use of any of his children;
(b) he or his said child is not occupying in the same urban area in which such building is situated for the purpose of his business any other such builSing or rented land, as the case may be, suitable for his needs at the time; and
(c) he has not vacated such a building or rented land without sufficient cause after the commencement of this Ordinance, in the said urban area."
6. Referring to the evidence of respondent Saleh Muhammad and his son Ah* Muhammad for whose benefit ejectment from the shop in question was claimed Mr. Muhammad Munir Peracha, learned counsel for the appellant vehemently contended that respondent had rented out a Tandoor-shop in 'the immediate proximity of the shop in dispute on monthly rental of Rs. 3,200/- and received Rs. 25,000/- in advance only two months before, which reflected upon his bona fide requirement in good faith for the use of his son. Learned counsel pointed out that on respondent's own showing his son was jobless for the last two years preceding the institution of the ejectment case whereas the adjoining shop with equal area in the same vicinity was let out on rent in or about January/February, 1995.
7. In his cross-examination respondent Saleh Muhammad stated as under :-- It may be noted that his statement was recorded before the Rent Controller,
8. Respondent's witnesses Khudai Nazar and Muhammad Khan in their respective statements although admitted that the adjoining shop was also owned by the respondent but they purposely avoided to accept if he had let out the same on rent about a couple of months back. Admitted position thus emerging from respondent's own case appears to be that he had let out a shop available with him only about a couple of months before the institution of ejectment application on 30.3.1995.
9. Learned counsel for the respondent finding him on weak wicket was unable to account for this conduct of the respondent but strenuously urged that appellant himself as well as his brother Haji Allah Ditta had admitted in their respective statements that respondent's son Ali Muhammad was unemployed and that the respondent did not have any other vacant shop or building with him.
10. Be that as it may, requirement of the law for seeking ejectment from non-residential building on the ground of personal requirement is not only that the landlord does not occupy in the same urban area any other building or rented land suitable for his needs at the time but also that he has not vacated such a building or rented land without sufficient cause. Technically speaking, respondent may be correct that on the date of ejectment application he was not occupying any other shop suitable for the needs of his son but it is evident and undisputed that only two months before seeking eviction of the appellant he had parted with a shop bearing equal accommodation in the closeproximity of the demised shop premises without any sufficient cause. The burden to prove that the shop was let out on rent for a noble cause and without realizing the reasonable need of his son heavily rests on the shoulders of the respondent but he neither explained this position in his eviction application nor in his evidence before the Rent Controller. Much emphasis was laid on the circumstance that respondent's son had discontinued his studies in class IX and was jobless for the last over two years but the fact remains that it was the landlord himself who chose to let out a shop suitable for the needs and requirements of his son only two months before approaching the Rent Controller which would adversely reflect upon the reasonableness and bonafides of his equirement
11. Learned counsel for the respondent heavily relied upon the inferences drawn from the evidence of the parties by the learned High Court on page 10 of the judgment and page 17 of the Paper Book in support of his argument that the High Court was justified in directing ejectment of the appellant We have no eservations about the conclusions drawn by the learned High Court to the effect that respondent's son Ali Muhammad had left his studies in 9th class; that he was unemployed for the last two years; that no other vacant shop was in possession of the respondent; that the respondent had rented out another shop prior to the filing of eviction application and that he was himself unemployed; but the learned High Court unfortunately ignored the justification and sufficiency of the cause that led to the letting out of another shop immediately preceding the act of seeking ejectment This aspect of the case having not been considered by the High Court which was a sine qua none for allowing ejectment from a non- residential building on personal ground, we are constrained to observe that the impugned judgment cannot be sustained in law.
12.Needless to over-emphasise rent laws were promulgated with a view to protect the interests of the landlord as well as tenant and to maintain a balance between unscrupulous tenants and unreasonable landlords. On the one hand landlord must show his genuine and bona fide need for dislodging a tenant from his established business while on the other hand, a tenant must adhere to the discharge of his legal obligations and not to act in a manner prejudicial to the interests of the landlord. A tenant is deemed to have complied with the terms of tenancy if the regularly pays rent, keeps the premises in neat and tidy condition, does not use the premises for a purpose other than for which it was let out, does not part with the premises without the written consent of landlord, does not commit acts tending to mpair utility and value of the property and does not indulge in acts amounting to private or public nuisance.
12. In the case in hand demised premises were let out on rent to the appellant by Haji Zarkoom Khan by virtue of tenancy agreement dated 13.12.1980 and there has been smooth sailing between the parties. It is in the evidence that the appellant started paying rent to the respondent at the direction of the original landlord and after latter's death the property devolved on the respondent because Haji Zarkoom Khan died intestate. Furthermore, there is adequate evidence to reflect that after obtaining the premises on rent appellant had improved its condition by converting it into a 'hair dressing saloon' with bathrooms by making huge investments with the knowledge and consent of the original landlord. In the circumstances, he cannot be deprived of the fruits of his efforts and investments simply because the respondent wants to make money and flourish at this whims.
13. For the aforesaid facts and reasons appeal must succeed and is hereby allowed with the result that the impugned judgment of the High Court is recalled and the judgment of the Rent Controller restored.
(AP.) Appeal accepted.
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