1. MUHAMMAD NADIR KHAN, J.- This appeal u/S. 15 of Balochistan Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as to the Ordinance) is directed against the order dated 11.10.2003 passed by Civil Judge- V/Rent Controller, Quetta whereby the application filed by the respondent (hereinafter referred to as the landlord/applicant) u/S. 13 of the Ordinance for eviction of the appellant (hereinafter referred to as the tenant) from the .Shop bearing No. 4-45/2-A/12 Abdul Sattar Road, Quetta on the ground that the same is required for personal bona fide use and occupation of the landlord/applicant has been allowed directing the tenant/appellant to handover the vacant possession of the disputed shop within three months after passing of the order to the landlord/applicant.
2. Mr. Tahir Muhammad Khan, the learned counsel for the appellant argued that the learned Rent Controller has failed to appreciate the evidence in its true prospective. The landlord/applicant failed to establish his bona tides with regard to his personal need and requirement. The Trial Court also failed to take into consideration the suitability of the shop in question for establishing of a general store while the landlord/applicant belongs to a very affluent and well-to-do family having business of hotel and also own a shopping place. Whereas a shop situated in the same vicinity was got vacated from one of the tenant by the father of the landlord/applicant, and the same was subsequently sold out by the applicant and his brothers. Furthermore, the tenant established that the landlord/applicant was already doing business at Alamdar Road which he mala finely not only concealed but denied which further reflects on his bona fide. Therefore, in such circumstances order for vacating the shop by the appellant on the ground of its being required by the landlord/applicant for his personal use being in conflict with the evidence available on the record is liable to be set aside. The learned counsel for the appellant supported his arguments by the following case-laws:-- - (1) 1988 SCM R 819.
(2) 1988 SCM R 1515.
(3) PLD 1982 Kar. 790.
3. Mr. Muhammad Sharif, the learned counsel for the respondent/landlord supporting the order of the Rent Controller argued that bona fides of the applicant cannot be doubted on the ground that he belongs to a wealthy family having large property and joint business as there is no bar on a member of such family to establish his own private business to increase his earning. Similarly filing of eviction applications by the brothers of the applicant, who also inherited property after the death of their father would not make the plea of landlord/applicant mala fide. Besides, the interest of tenant is safeguarded by Section 13(4) of the Ordinance. The learned counsel for the landlord/applicant further argued that the tenant being unable to rebut the claim of the landlord with regard to his personal requirement raised plea with regard to increase of rent and sale of the shop but failed to establish the same. The learned Rent Controller taking into consideration the facts and circumstances emerging from the evidence of the parties allowed the application and the order being free from any misappreciation of evidence or any legal infirmity needs no interference. The learned counsel for the respondent/landlord relied on following case-law:--
(1) 1981 SCM R 784.
(2) PLJ 2004 18.
(3) 1981 CLC 1386.
4. The submissions made by the learned counsel for the parties considered, record of the case perused. As already stated hereinabove the respondent sought the eviction of the appellant from the shop in question on the sole ground that the shop is required by him for his personal bona fide use. To substantiate his claim the landlord/applicant, in addition to his own affidavit filed affidavits of Jan Muhammad, Malik Muhammad Yasir however, Malik Jan Muhammad could not be produced for cross-examination, hence his affidavit was excluded from the evidence, whereas Malik Muhammad Yasir who happens 10 be the brother of applicant and applicant himself entered the witness-box to undergo the test of cross-examination.
5. AW Malik Muhammad Yasir in cross-examination admitted that after three years of the death of their father he sold a shop to Haji Tahir. He further admitted that eviction application has been filed by him also for eviction of one of the tenant and the Court granted period of one year to the tenant to vacate the shop. AW Malik Muhammad Yasir stated that he supervises the business of the hotel situated at Abdul Sattar Road which have 30 rooms and he also collects the rent of 35 shops situated at the ground floor of the hotel which were rented out by his father on receiving of Pagri.
6. AW Malik Yasir denied that the hotel and the shops is joint property of the heirs of Malik Nazeer.
7. According to AW the applicant intents to establish a general store in the shop in dispute and denied that the applicant is doing business of wholesale at Alamdar Road. It has been admitted by him that 25% rent is increased after every three years by the tenants.
8. The applicant in cross-examination stated that his father left behind a hotel, Shahzaib Plaza and eight shops, the hotel is stated to be having 30 rooms while on the ground floor and basement 30 shops are situated. Applicant also admitted that after every three years the tenants increase the rent by 25%. Applicant admitted that at Alamdar Road also property left by his father is situated which includes a vacant house and no shop. Further at Sabzimandi also property left by his father is situated. Applicant stated that after the death of his father they filed eviction application against Sarwar Ali and on his own added that it was for the use of Malik Basil, It has also been admitted by him that eviction application was filed against Ramazan also. The applicant denied that since 1997 he is doing business of wholesale at Alamdar Road and denied doing of any business after completion of his education.
9. The tenant is rebuttal filed the affidavit of RW.1 Nisar Ahmed, RW.2 Syed Agha and his own affidavit.
10. The applicant himself as well as his witnesses also papered to face the cross-examination of the landlord, In addition to the above-mentioned affidavits the applicant filed following documents and called upon the applicant/landlord to admit the same or otherwise:--
(i) Order dated 13.10.1996 passed by Civil Judge-II l/Rent Controller, Quetta in Eviction Application.
(ii) Legal notice dated 8.2.1995 issued to Haji Muhammad Sadiq by Sohail Ahmed Rajput, Advocate on behalf of Malik Muhammad Nazeer.
(iii) Order dated 30.8.1997 passed by Civil Judge- III/Rent Controller, Quetta in Eviction Application No. 48/1996 titled as Malik Muhammad Basil and others v. Sarwar Ali.
(iv) Statement of AW Muhammad Anwar s/o Haji Abdul Rashid before Civil Judge-Ill, in Eviction Application titled as Malik Muhammad Basil and others v. Samar Ali.
(v) Statement of AW of Malik Muhammad Basil before Civil Judge-Ill, Quetta in Eviction Application titled as Malik Muhammad Basil and others v. Sarwar Ali.
(vi) Judgment of Hon'ble High Court of Balochistan in F.A.O. No. 67/1997 passed on 19.12.1997.
(vii) Judgment of Hon'ble Supreme Court of Pakistan passed on 4.6.1999 in Civil Petition No. 11-Q of 1998.
(viii) Statement of Malik Muhammad Yasir s/o Malik Muhammad Nazir before Civil Judge-IV/Rent Controller, Quetta in Eviction Application titled as Malik Shakir v. Ziauddin.
(ix) Statement of Malik Muhammad Basil Yasir s/o Malik Muhammad Nazir before Civil Judge- IV/Rent Controller, Quetta in Eviction Application titled as Malik Shakir v. Ziauddin."
11. The landlord/applicant admitted all the documents. Furthermore, the respondent/tenant filed an application for admission of the fact that the landlord/applicant is running a business of edible oil and ghee at Alamdar Road, Quetta and also maintaining bank account bearing AC No. 2592-0 in Muslim Commercial Bank, Toghi Road, Quetta. However, both the above facts were denied by the landlord/applicant who also filed the application of Manager, Muslim Commercial Bank, Toghi Road Branch, Quetta stating that the Account No. 2592 is in the name of Abdul Khaliq s/o Haji Muhammad Khan.
12. Adverting to the statements of the RWs and the respondent/tenant it would be suffice to state that RW.1 Nisr Ahmed stated about the business of wholesale being run by the applicant at Alamdar Road, Quetta while RW.2 Syed Agha claimed that in his presence the applicant came to the shop and demanded increase of rent to the tune of Rs. 10,000/- or in alternate the respondent/tenant was asked to purchase the shop at market rate. The applicant in his statement denied that the shop is required by the applicant for his personal bona fide use and stated that the applicant is doing business of wholesale and the application was filed when he did not submit to the demand of increase of rent or in alternate to purchase the shop.
13. There can be no limit on the earning of an individual and his efforts to increase the same, hence establishing of a business despite having earning from properties would not debar the landlord to establish his own business to increase his earnings. For Such view I take support of the judgment of Hon'ble Supreme Court 1988 SCM R 1515. The observations relevant on the subject reads as under:-- We have reviewed the proceedings and find that a person may be very affluent and well to do, may not need a property for his economic betterment. All the same he may want it to keep himself meaningfully pre-occupied, to advance and fulfil his educational and cultural aspirations, to meaningfully contribute in his own way to his social and intellectual betterment. When the landlord in this case stated that he wanted to run an educational institution as he had been doing before its take over, he expressed that need of his which was personal to him, which had a background and a plausible reason for it. The bona fide, the genuineness of the urge and the past experience have not been doubted by any of the authorities dealing with the case and we also find no occasion to doubt it. In a case one like before us what the authorities have to ensure is that such a requirement is not used as a ruse, or pretext to get the tenant evicted without any real intention to utilize the property in the manner disclosed. The authorities cannot be judges of the soundness of an enterprise or the correctness of the choice or the suitability of the individual for the enterprise. We find, therefore, that it was not a case where the High Court could have interfered while exercising the Constitutional jurisdiction and has rightly not interfered with it."
14. Hence applicant/landlord being member of a wealthy family and having income from other properties would not affect his entitlement to get vacated shop for his personal bona fide use. In such view of the matter the pivotal point which need to be examined is bona fides of the landlord.
15. The applicant/landlord as well as his witness claimed that the applicant is jobless and he never did any business and it has been categorically denied by both of them that the applicant is neither running a wholesale shop at Alamdar Road nor in past he was running any* such shop. To the contrary the documents referred to hereinabove filed by the respondent/tenant before the Rent Controller and admitted by the landlord/applicant includes statement of Malik Muhammad Basil recorded in eviction application No. 48 of 1996 titled as Malik Muhammad Basil and others v. Sarwar Alli- In cross-examination Malik Basil denied that at Alamdar 'Road he has opened a wholesale shop of edible oil/ghee and voluntarily stated that the ghee shop belongs to his brother Qazafi. The counsel for the landlord/applicant though made an attempt to get exonerated of the statement of Malik Basil who happens to be the brother of applicant but felt difficulty in said regard. While the said statement reflects that the applicant as well as his witness Malik Muhammad Yasir who also happens to be brother of applicant have not only concealed the said fact but have denied the same which in the stated circumstances reflects on the bona fides of the landlord/applicant.
16. Furthermore, it is an admitted fact that after three years of death of the father of the applicant/landlord a shop in the same vicinity was got vacated from the tenant and was subsequently sold to one Haji Tahir, It would not be out of place to mention that AW Malik Muhammad Yasir who stated that he is looking after the business of the hotel also filed eviction application against one of the shopkeeper at Abdul Sattar Road and eviction order has been passed allowing the tenant period of three years for vacating the shop. Similarly one of the other brother of the applicant Malik Basil also filed eviction application against another tenant occupying the shop in same vicinity and the eviction order has been passed in favour of Malik Basil, In addition to above eviction applications were filed against Sarwar AN and Muhammad Ramazan occupants of the shop in the same vicinity. Without making of any observation with regard to the eviction applications filed by the brothers of the applicant and the other legal heirs of late Nazeer Ahmed, it would suffice to mention that sale of one of the vacant shop in the same vicinity by the applicant and other legal heirs of Nazeer Ahmed and concealment of the fact of applicant/landlord having business of ghee/edible oil .At Alamdar Road, adversely affects the bona fides of the applicant and ia. such circumstances eviction of the tenant only on the ground that his interest is safeguarded by Section 13(4) of the Ordinance would not be justified. The judgment 1981 SCM R 789 having facts and circumstances which being distinguishable from the facts and circumstances of the case in hand cannot lend any support to the case of the applicant/landlord as in the said case the landlord filed an application for eviction of a tenant which was allowed and subsequently he filed another application for eviction of another tenant for personal bona fide use of the shop for his son and it was held that second application was not barred. Similarly the judgment 1981 CLC cannot be applied to the instant case as the circumstances which were taken into consideration for eviction of the tenant cannot be matched with the case of the applicant/landlord. The relevant observations reads as under: "I have gone through the entire evidence with the help of the learned counsel for the parties. On the question of personal need Kh. Nasrullah (P.W.2) has stated that he knew Sh. Rashid and his son Asif, who are carrying on the business of stamp-making on a footpath. Similarly the respondent has appeared as his own witness. He deposed that he alongwith his son carried out the business of stamp making in. Front of the shop in dispute at the foot of the stairs on a place which is not more than 2-1/2 feet. He further deposed that the place where he was carrying on the business belonged to the Municipal Committee. He specifically stated that they did not own any other shop. The Statement was quite sufficient to. Establish the bona fides."
17. Adverting to the judgment PLJ 2004 Quetta f8 authored by me also cannot be of any help to the landlord for the simple reason that in the said case the landlord filed I second application against the same tenant as his first I application though was allowed and was challenged before I this Court and the order was set aside while the appeal filed by the landlord against the order of this Court was withdrawn with permission to move afresh application against the respondent u/S. 13 of Balochistan Urban Rent Restriction Ordinance, 1959 and on filing of second application which was allowed and challenged before this Court in FAO No. 49/2002 and it was observed that law does not bar filing 6f second eviction application if subsequently any ground provided by Section 13 of Ordinance, 1959 become available to the landlord, In the same judgment it has been held that the claim of the landlord/applicant can be attacked only if the same is found to be tainted with mala fide and it was further observed that no mala fide on the part of landlord/applicants could be detected to doubt his bona fides only because previously he filed application seeking eviction of the tenant on one of the ground provided by Section 13 of the Balochistan Urban Rent Restriction Ordinance, 1959 but failed to prove the same. Whereas in the instant case it has already been held that concealment of the fact and sale of a shop situated in the same vicinity after it was got vacated through the Court adversely affects the bona fides of the applicant/landlord, therefore, the eviction of the tenant in the present case cannot be validated solely on the ground that .His interest is safeguarded by Section 13(4) of the Ordinance.
18. Thus, having regard to the discussion made hereinabove I am unable to agree with the findings of the learned Civil Judge-V/Rent Controller, Quetta whereby the ' application of the respondent/landlord has been allowed. Accordingly the order dated 11.10.2003 is set aside and the application filed by the respondent/landlord is dismissed, with no order as to costs.