PLJ 2023 Quetta 103
Present: Muhammad Aamir Nawaz Rana, J.
QUDRATULLAH (RAISANI) and another--Appellants
versus
ABDULLAH--Respondent
F.A.O No. 4 of 2022, decided on 15.8.2022.
Balochistan Urban Rent Restriction Ordinance, 1959 (VI of 1959)--
----Ss. 13 & 15--Eviction petition--Allowed--Denial of relationship of landlord and tenant--No written tenancy agreement--Mutation entry of property in favour of Appellant No. 1--Some portion of property was in name of Appellant No. 1--Question of whether there is relationship of landlord and tenant between parties-- Despite categorical denial of relationship of landlord and tenant taken by Appellant No. 1 and in spite of framing issue in this regard Rent Controller had not dilate upon same--It is settled principle of law that relationship of landlord and tenant is denied then this issue as preliminary issue has to be decided first without dilating upon other issues--Issue was framed in this regard but no effort was made by Rent Controller to consider stance taken by Appellant No. 1 who had taken specific plea to effect that there exist no relationship of tenant and landlord between parties and property in question is in fact in name of Appellant No. 1 and respondent has no concerned with said property--Considering mutation entry of property in question in favour of Appellant No. 1 which is admitted by counsel of Respondent No. 1 and in absence of any written tenancy agreement and all considering fact that Respondent No. 1 is seeking eviction of Appellant No. 1 from property in such view of matter relationship of landlord and tenant has not been established, between parties--Appeal allowed.
[Pp. 106 & 107] A, B & C
2000 SCMR 632 ref.
Balochistan Restrictions of Rented Building (Security) Act, 2015 (X of 2015)--
----S. 10--Violation of Act--It is mandatory for any landlord to comply with provisions of act and in case of any violation of said act, penal clause has also been incorporated. [P. 107] D
Mr. Agha Faisal Shah, Advocate for Appellants.
Mr.Rehmatullah Khan Mandokhail, Advocate for Respondent.
Date of hearing: 11.8.2022.
Order
The appellant has called in question the order dated 07.12.2021 whereby the learned Rent Controller/Civil Judge-VI, Quetta allowed the Eviction Application No. 08/2019 so filed by respondent and appellants are directed to vacate the house/Flat No. 506, Gulshan-e-Hassan Colony, Near Hazara Town, Quetta bearing Khasra No. 4417/182 measuring about 720 sq. ft. Mahal Karkhassa, Mouza Kirani, Tappa Shadenzai-I, Tehsil City, District Quetta and pay rent from May, 2019 till date to the appellants.
The necessary facts for decision of this appeal are that
in eviction application so filed by Respondent No. 1 the detail of property in question has been given in Para No. 1 which is reproduced as under:
“1. That the applicant is lawful owner and land lord of the house/Flat No. 506, Gulshan-e-Hassan Colony, Near Hazara Town, Quetta bearing Khasra No. 4417/182 measuring about 720 sq. ft. Mahal Karkhassa, Mouza Kirani, Tappa Shadenzai-I, Tehsil City, District Quetta with reference to Mutation No. 11863. Copy of mutation is annexed herewith “.
2. That it was alleged by Respondent No. 1 that initially the property in question bearing No. 506 was rented by Respondent No. 1 in January, 2019 against the rent of rupees five thousand (Rs.5000/-) per month on the basis of trust and faith through oral agreement but subsequently after paying four (04) month’s rent till May, 2019 the Appellant No. 1 stopped the payment of rent, so apart from ground of default; ground of personal bona fide requirement and ground of subletting has also been taken by Respondent No. 1, in his eviction application while on the contrary; the Appellant No. 1, contested the eviction application and denied categorically relationship of landlord and tenant between the parties and asserted that Appellant No. 1 being recorded owner in revenue record is in possession of property in dispute as exclusive owner of the same; that out of pleadings the learned trial Court framed following issues:
1. Whether there exists relationship as landlord and tenant between applicant and respondent?
2. Whether the respondent is bad paymaster and made default in payment of rent @ Rs. 5000/-from May, 2019?
3. Whether the Respondent No. 1 has subletted the said house/flat in question to Respondent No. 2 without permission of the applicant?
4. Whether the house/flat in question is required to applicant for his personal bonafide use?
5. Whether the applicant is entitled for the reliefs, he has claimed?
6. Relief?
3. That subsequently without discussing the issues separately and without dilating upon available material in haphazard manner the learned trial Court allowed the eviction application.
Arguments heard. Record perused.
4. It is very strange aspect of the matter that despite categorical denial of relationship of landlord and tenant taken by Appellant No. 1 and in spite of framing issue in this regard the learned Rent Controller had not dilate upon the same. It is settled principle of law that when relationship of landlord and tenant is denied then this issue as the preliminary issue has to be decided first without dilating upon other issues; in the case in hand issue was framed in this regard but no effort was made by the learned Rent Controller to consider the stance taken by the Appellant No. 1 who had taken specific plea to the effect that there exist no relationship of tenant and landlord between the parties and the property in question is in fact in the name of the Appellant No. 1 and the respondent has no concerned with the said property. Reliance is placed in this context in case titled as Ghulam Rasool v. Mian Khursheed Ahmed 2000 SCMR 632 relevant para is reproduced:
“Be that as it may, there is no cavil with the proposition that when the relationship of landlord and tenant is denied, the Rent Controller in the first instance decide this issue before directing the tenant to deposit the arrears of rent, if any or future rent”.
5. The revenue record vis-a-via suit property was perused and the counsel of Respondent No. 1 was confronted with this aspect of the matter who candidly conceded that some portion of said Khasra No. 4417/182 measuring about 720 sq. ft. Mahal Karkhassa, Mouza Kirani, Tappa Shadenzai-I, Tehsil City, District Quetta is in the name of Appellant No. 1 and remaining portion of Said Khasra number is in favour of Respondent No. 1 which was rented out.
As explained above, this issue should have been decided by trial Court as preliminary issue but since the trial Court ignored this aspect and through non-speaking order without dialing upon the issues, allowed the eviction application so filed by Respondent No. 1, therefore, at appellate stage this issue being crux of the controversy between the parties is to be resolved.
Whether there is relationship of landlord and tenant between the parties?
Considering the mutation entry of property in question as mentioned above in favour of Appellant No. 1 which is admitted by the counsel of Respondent No. 1 and in absence of any written tenancy agreement and above all considering the fact that Respondent No. 1 is seeking eviction of Appellant No. 1 from property falling under Khasra No. 4417/182 measuring about 720 sq. ft. Mahal Karkhassa, Mouza Kirani, Tappa Shadenzai-I, Tehsil City, District Quetta (which in fact is in the name of Appellant No. 1) so in such view of matter the relationship of landlord and tenant has not been established, between the parties.
Apart from that another very relevant aspect of the matter which could not escaped my intention is; non-compliance of the Balochistan Restriction of Rented Buildings (Security) Act, 2015, which was promulgated with effect from 19th August, 2015 and has made it mandatory for any landlord to comply with the provisions of the same and in case of any violation of the said Act, the penal clause has also been incorporated, which envisages imprisonment which may extend to one year or with fine or with both; being mandatory provisions of ibid Act same cannot be ignored and for the purpose of this appeal, since no compliance of said law has been done so on this score also it can be inferred that relationship of landlord and tenant does not exist between the parties; otherwise the compliance of said Act would have been done since it contains penal clauses in case of violation of the same; the relevant provisions of the ibid Act are reproduced:
“THE BALOCHISTAN RESTRICTIONS OF RENTED BUILDINGS (SECURITY) ACT,2015
Act No X of 2015.
Preamble.
WHEREAS it is expedient to provide mechanism for monitoring the business of rented buildings for the purpose of counter terrorism and effectively combating crime in the Balochistan and the matters connected therewith or ancillary thereto;
It is hereby enacted as follows:-
1. Short title, extent and commencement. (1) This Act may be called the Balochistan Restrictions of Rented Buildings (Security) Act, 2015.
(2) It shall extend to the whole of Balochistan except Tribal Areas.
(3) It shall come into force at once.
2. Definitions. In this Act, unless there is anything repugnant in the subject or context--
(a) “Act” means the Balochistan Restriction of Rented Buildings (Security) Act, 2015;
(b) “Government” means the Government of the Balochistan;
(c) “landlord” means a person or body on whose name the building stands registered in Government records;
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(k) “rented building” means any building which is given or rented and include private hostels and student hostels;
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3. Rent agreement. (1) Whenever the landlord, the lessee or the manager, as the case may be, agrees to allow any person other than his legal heirs to occupy his rented building, he shall reduce the agreement in writing on legal document which shall be signed by the landlord, the lessee or the manager and the property dealer in case the rented building is given through him, as the case may be, and the tenant. The agreement should contain meaningful information about the tenant through which the identity of the tenant could be verified.
(2) The landlord, the lessee or the manager, as the case may be, shall exercise due care and prudence in verification of the credentials of the tenant so that the rented building may not be used for any illegal or terrorist activities.
(3) The landlord, the lessee or the manager, as the case may be, shall get minimum two references of known persons who shall verify the credentials of the tenant. The complete particulars of the reference in the form of Computerized National Identity Card and contact number shall be obtained and reference shall be given in the rent agreement.
(4) The rent agreement shall be further attested by a Magistrate, Notary Public or the Oath Commissioner.
4. Information with regard to rent agreement. (1) The landlord, the lessee or the manager, as the case may be, and the property dealer where the rented building is given through such property dealer, shall provide following information to the Officer Incharge within three days of signing of the agreement on Form-I of the schedule:-
a) attested copy of the rent agreement;
b) attested copy of the National Identity Card of tenant;
c) name and copies of the National Identity Cards with contact number of two references, who identify the tenant; and
d) particulars of the male members above the age of fourteen years living or residing with the tenant.
(2) After being satisfied, officer Incharge shall issue “tenant acknowledgment receipt” to the landlord, the lessee or the manger, as the case may be, on the submission of the requisite information on Form-II of the schedule. He shall also incorporate the entry in the Daily Diary, maintained in such Police Station/Levies Thana.
(3) The landlord, the lessee or the manager, as the may be, shall provide one attested copy of the tenant acknowledgment receipt to the tenant.
(4) Any concerned police officer, not below the rank of Assistant Sub-Inspector and Levies officer not below the rank of Risaldar with approval of the Officer Incharge may inspect any rented building along with the landlord, the lessee or the manager, as the case may be. The landlord, the lessee or the manager, as the case may be, shall facilitate the police during inspection.
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10. Penalties. (1) Whoever contravenes the provision of Sections 3 to 6 of this Act shall be punished with imprisonment, which may extend to one year or with fine or with both.
(2) In case of the reasonable grounds, the police find that the landlord, the lessee, the manger or the property dealer, as the
case may be, was aware of the criminal designs of the tenant or he has not exercised due care in verification of the credentials of the tenant, he may be charged for the abetment of the offence committed by the tenant.
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12. The offence under this Act shall be cognizable, non-bail able and shall be tried by a Judicial Magistrate of First Class having territorial jurisdiction over the area of offences.
13. The provision of this Act shall be in addition to and not in derogation of any other law for the time being in force.”
Apart from that Article 5(2) of the Constitution of Islamic Republic of Pakistan, 1973 also leaves no room for speculation as for as compliance of law is concerned rather it considers obedience to law as the inviolable obligation of every citizen wherever, he may be and it is a settled principle of law that ignorance of law is no excuse, the said Article is also reproduced:
“5. (1) Loyalty to the State is the basic duty of every citizen.
(2) Obedience to the Constitution and law is the [inviolable] obligation of every citizen wherever he may be and of every other person for the time being within Pakistan.”
Emphasis provided.
Since, the pivotal issue of relationship of landlord and tenant between the parties is decided against the Respondent No. 1; in view of above discussion and deliberation, therefore, the impugned order is not sustainable same is hereby set aside and the eviction application so filed by Respondent No. 1 stands dismissed, however, the Respondent No. 1 is at liberty to approach the competent Court of civil jurisdiction for redfessal of his grievance, if any.
Consequently this appeal is allowed with no order as to cost.
(Y.A.) Appeal allowed
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