1. AMANULLAH KHAN YASINZAI, J.--- This appeal under Section 15 of the Balochistan Urban Rent Restriction Ordinance VI of 1959, is directed against the order dated 10.5.2004, passed by learned Senior Civil Judge-II-cum- Controller, Quetta, whereby the eviction application filed by appellant was ordered to be dismissed.
2. Briefly, the facts of the case are that, appellant filed an eviction application in the Court of Senior Civil Judge-IIcum-Controller, Quetta, on the ground of default and personal requirement for his son Sarfraz in respect of shops bearing Khewat No. 25, Khatooni Nos. 24 to 27, Khasra Nos.
3. 112/642/113/664/116 situated in Mahal and Ward No. 15, Tappa Urban, Tehsil and District Quetta, having Municipal Nos. 1-2(5)319-A, 5/2(7)320-C, Ingle Road, Quetta. After service of notice, respondents contested the application on legal and factual grounds. A preliminary objection regarding maintainability of the application was taken that, in the previous round of litigation, a portion of the property, adjacent to the property in question was got vacated by the appellant and it was agreed that, as far as the respondent-tenant i.e. Islam Coat Company is concerned, no eviction application will be filed.
4. Out of the pleadings of parties, following Issues were framed for determination:--
(1) Whether the application of the applicant is not maintainable in view of P/O 'A' of the W/S?
(2) Whether the respondent has made default in payment of rent from August, 1995 till today?
(3) Whether shop in question is required for personal bona fide use of son of applicant?
(4) Whether the applicant is entitled to the relief claimed for?
(5) Relief.
5. In support of its case, appellant examined AWs Qari Muhammad Ali, Muhammad Hassan Khan and Ahmad Khan, Patwari, who tendered document Ex.A/1-A. Lastly appellant got recorded his own statement, wherein he was confronted with the document i.e. Ex.R/1 being the order C. L. R. dated 18.10.1988, passed by the Rent Controller in the previous round of litigation. In rebuttal, respondents examined RWs Sher Shah and Muhammad Ayub and thereafter respondent Hazrat Agha entered in witness-box, for land on behalf of other respondents.
6. The Trial Court thereafter heard the parties and rejected the eviction application on the preliminary objection; holding therein that, in view of the previous agreement, the application is not maintainable. Vide order and decree dated 9.8.2001. Being aggrieved, appellant filed an appeal before this Court, which is registered as FAO No. 49/01. The said appeal was partly accepted and case was remanded to the learned Controller, to dispose of the same on merits vide judgment dated 23.2.2004.
7. After remand, the respondents produced RWs-3 and 4 namely Sabir Shah and lnayat Ali Shah and on hearing the parties, learned Controller dismissed the eviction application vide judgment dated 10.5.2004. Hence, instant appeal has been filed.
8. Mr. Naeem Akhtar, learned counsel for the appellant contended, that, ground of personal requirement was independently proved by the appellant, but the same has not been considered by the learned Controller for extraneous reasons. Learned counsel further argued that, eviction application has been dismissed, in violation of the law, laid down by the Superior Court and besides, the judgment impugned, is based on surmises and conjectures.
9. Mr. Arshad Chaudhry, learned counsel appearing for the respondents, while rebutting the contentions of appellant's counsel, argued that, appellant had got vacated the major portion of the property, attached to the property in question, but had not disclosed the said fact in the application and further sublet the same, therefore, the eviction application was hit by second proviso to sub-section (2) of Section 13 of the Ordinance and thus the same was not maintainable, as the property obtained by the landlord C.L.R. has been re-let, which casts doubt on the personal bona fide requirement of the landlord and additionally, the son, for whom the property in question was required, has not been produced.
10. I have heard the learned counsel for parties and perused the record of the case.
11. It may be observed here that, in the eviction application, it was averred that after the family settlement, the appellant has become the exclusive owner of the property in dispute and the same is required by him for the personal bona fide use and occupation of his son, besides default was also alleged. Since the question of default has been decided against the appellant and it was not agitated, therefore, I would confine myself, only to the question of personal bona fide requirement of the property in question for the son of appellant.
12. During the course of arguments, Mr. Naeem Akhtar, learned counsel by referring to the impugned judgment that, learned Controller has dismissed the application on extraneous ground i.e. Since the appellant is a big landlord and owe huge properties, therefore, it was not possible for the son of landlord, coming from such a rich family, to do business and further since the son of landlord has not appeared in support of the eviction application, therefore, it cast doubt on his bona fides and as regards the ownership, landlord produced AW-3 showing the appellant as exclusive owner of the property in question, but the said document was discarded by the learned Rent Controller on the ground that, it was maneuvered by the appellant to show that, he is exclusive owner of the property in question.
13. Adverting to the contention of learned counsel for appellant, regarding personal bona fide requirement of the property in question by the son of landlord; it would be relevant to reproduce the portion of the impugned judgment, containing observations of the Trial Court, dis-believing the personal requirement of the landlord:-- C.L.R. same for his personal use and further instant application was filed after the Family Settlement.
14. It has also come on record that the said premises was re-let to one Bilal, who is doing business in the said premises in the name and style of Bilal Motors. Though the said allegation made by the respondents was denied by appellant. Be that as it may, it has come on record that, prior to filing of eviction application, the said property, if at all, had been rented out, two and a half years, before filing of the instant application. It may be observed that, even if the landlord has got possession of a tenement and re-let the same, it would not negate the personal requirement of the landlord and besides, it is always the discretion and prerogative of the landlord to choose, which of the property is suitable for his personal bona fide- requirement and occupation. As observed herein-above, the said property was rented out two and a half years, prior to filing of the eviction application, thus on a fresh cause of action, the landlord was entitled to file an eviction application. In this regard, reference is made to 1968 SCMR 1087, wherein following observations were made:-- "But in the circumstances of this case, it is clear that both the Cohtroller and the Additional District Judge had come to the conclusion that the need of the landlords for extra accommodation was genuine, as two of their members were going to get married and the family was, therefore, expanding. This being so, it must follow that the demand for eviction of the petitioners was made in good faith.
15. Learned counsel attempted to argue before us faith was wanting in the present case, as another premises had fallen vacant earlier but the landlords ',at flat to a tenant and did not utilize it for The question, however, as to which portion of vould suit the landlords better, must be left to and there is nothing unreasonable in the landlords insisting that a particular portion of the building should be made available to them. We do not consider that the circumstance pointed out by the learned counsel affects the good faith of the landlords' demand."
16. Adverting to the next contention of learned counsel for respondents that, since the earlier application was withdrawn by the landlord therefore, he was debarred from filing the fresh application. We are not persuaded to agree with the said contention, as it does not have any substance. A subsequent eviction application filed on a fresh cause of action, on any ground including personal bona fide requirement, cannot be treated res judicata, as envisaged under Section 14 of the Ordinance. It may be observed, at the cost of repetition that previous eviction application was disposed of on the basis of a compromise and there is nothing in the Ordinance to debar the appellant from filing a subsequent eviction application, on a fresh cause of action, particularly on the ground of personal F.I.R. Use and occupation (see 1978 SCM R 437).
17. Reverting to the contention that, landlord failed to prove the personal bona fide need of the son, for whose benefit the property in question is required, as he did not appear. The contention being without substance is repelled. It may be observed here that, a landlord cannot be non-suited, as he failed to produce his son. Even if the son of the landlord has not been produced, still the personal bona fide requirement has been proved through other independent evidence, being consistent with the averments, made in the application, thus non-production would not be fatal to the landlord. It may further be observed that witnesses produced by appellant have categorically and consistently stated that, son of the appellant namely Sarfraz is jobless and property in question is required by him for his personal bona fide use and occupation. The only evidence, which was brought in rebuttal was that, son of the appellant is working with his brother in a rented shop. It may be pointed out that, even if the son of the appellant is doing business in a rented shop with his brother, still the right of landlord to establish his independent business cannot be taken away. In this regard, reference is made to PLJ 1979 Lah. 176, wherein it was held that, if the son of the landlord does not appear in the witness-box, but the personal bona fide requirement has been independently proved, non-appearance would not be fatal.
18. Coming to the contention of learned counsel for appellant that after the family partition, the mutation entries were carried out in the name of appellant and other co-sharers and the property in question fell in the share of appellant and thus, a fresh cause of action has accrued to him. The contention so raised has substance. It may be observed that, previous application was disposed of on the basis of compromise in the year 1988; and after a period of 12 years, the instant application has been filed, when the circumstances, as it existed in 1988, had changed and the son of appellant, who is stated to be an adult and has attained the age of majority and as per averments made in the application is jobless, thus the eviction application could not be rejected on such frivolous objection. In my considered opinion, the appellant has proved the personal bona fide requirement for his son, who is jobless.
19. Thus, for the foregoing reasons, the, appeal is accepted and impugned judgment dated 10.5.2004, passed by learned Senior Civil Judge-II-cum-Controller, Quetta is set aside. Consequently the eviction application is allowed and the respondents are directed to handover the vacant possession of the property in question to the appellant, within a period of four months, from hereto.
20. Parties are left to bear their own costs.
21. F.A.O. Allowed.