1. Instant appeal has been filed by the appellant with averments that the trial Court failed to frame the issue determining the controversy in respect of existence of relationship of landlord and tenant between the parties. The respondent was bound to prove his ownership for which he failed. There is no default in payment of rent. The trial Court failed to appreciate the provisions of Section 13(3) (a)
(i) & (ii) of the Ordinance, VI of 1959. The evidence is not properly appreciated. He has prayed for setting aside of impugned judgment dated 26.12.2008 and dismissal of the eviction application filed against him by the respondent.
2. The learned counsel for the parties argued their case. As per learned counsel for the appellant that the premises being residential cannot be required for commercial purpose, as there is nothing of the sort in the main application. Further the trial Court failed to consider that though arguing in main application about personal bonafide use, which in course of evidence turned into commercial use, further the use and requirement of business partner is not included, nor meant by term personal bonafide use. It is further his contention that proper opportunity was not given to him by the trial. Court for producing the evidence, while his request for producing official witnesses was refused. In reply to the same learned counsel for the respondent contended that there is no bar for claiming a residential building for commercial purposes. Further, a tenant is always a tenant. It is also his contention that in reply to main eviction application no plea in respect of alleged sale transaction was taken by the appellant. He prayed for dismissal of the appeal.
3. As per record the respondent/ applicant filed an application seeking eviction of the appellant/respondent from house Bearing Municipal No. 435-39 situated at Gurdat Singh Road, Quetta in occupation of the appellant being their tenant at monthly rental of Rs.300/- on grounds of default in payment of rent from last five years and his personal bonafide requirement of the house for his own use and occupation. In reply the appellant being respondent in eviction proceedings though admitted himself to be tenant in house in question owned by Noor Ahmed, father of the respondent/ applicant, who died some years ago. But he denied rate of rent as Rs.300/- per month. According to him the rent was, fixed at the rate of Rs.100/- per month, which was collected by the landlord Noor Ahmed at his will and choice. Further, asserted that as Noor Ahmed refused to receive the rent, therefore, the same was deposited in the Court since January 1999, as such there is no default in payment of rent on his part. He further denied the requirement of house in question for personal need and occupation of respondent/ applicant. Though he admitted death of the landlord Noor Ahmed, but showed his ignorance about devolving of title of landlord to the respondent/ applicant.
4. It is further apparent from the record that the issues were framed on 11.10.2007, while both the parties produced their respect evidence. It is apparent, from perusal of statement of witnesses that the appellant while cross-examining the respondent/applicant's witnesses and also while producing his own witnesses tried to establish existence of sale transaction allegedly effected between him and father of the respondent/ applicant namely Noor Ahmed, the previous landlord, in respect of house in question. The appellant/respondent during course of trial made efforts for amending his reply by way of filing application, but the trial Court refused to accept the same through order dated 23.5.2008. Despite the same he put questions to same effect to the witnesses appearing on behalf of the respondent/applicant, while he himself and his witnesses also deposed the facts while recording their statements. The perusal of reply submitted by the appellant/ respondent of main eviction application reveals that the appellant clearly admitted himself to be in occupation of house in question as tenant of Noor Ahmed father of respondent/ applicant while admitted paying of rent to him personally in all these years and on his refusal started depositing of rent in Court since January 1999. Though he tried to establish the sale effected between him and Noor Ahmed, but failed as rightly decided by the trial Court while assessing the material brought on record, no interference is required to be made in the same. In case he wanted to establish his title as owner of house in question he may do so while approaching the competent Court. In proceedings held under provisions of this Ordinance, VI of 1959 no order can be made deciding title of ownership of the parties.
5. Now coming on merits of the case. The respondent/applicant while claiming himself to be landlord of house in question being one of the legal heirs of the deceased owner/landlord namely Noor Ahmed, sought eviction of the appellant on ground of personal bonafide use and occupation and default in payment of rent. Though the appellant objected on status of the respondent being landlord, as there are other legal heirs of the previous landlord/ owner. This fact though admitted, but under provisions of Balochistan Rent Restriction Ordinance, 1959 term "landlord" is defined in Section 2(c), which states as under:-- 2(c) "Landlord" means any person for the time being entitled to receive rent in respect of any building or rented land whether on his own account or on behalf or for the benefit of any other person, or as a trustee, guardian,--receiver,--executor--or administrator for any other person, and includes a tenant, who sublets any building or rented land in the manner hereinafter authorized and every person from time to time deriving title under a landlord."
6. Thus after death of landlord also being owner, any one of his legal heir can gain status of landlord within meaning of this Ordinance, all the legal heirs are not required to join as party. Thus to this extent the objection raised by the appellant is of less importance.
7. As the respondent/applicant sought possession of house in question on ground of his personal bonafide use and occupation, thus the burden lies on him to establish the same. As per AW-1 Saifullah the respondent/applicant intended to include the disputed house within the premises of his workshop situated adjacent to it. AW-2 Bashir Ahmed, brother of the respondent/ applicant stated that they wanted house in question for their personal need, as they intend to include it within premises of their workshop situated adjacent to it. The respondent/ applicant also stated the same, according to him as there is shortage of space in their workshop situated adjacent to house in question, which is required to be included therein. Though the respondent/ applicant is completely silent to same effect in his application for eviction, rather he only asserted for his personal use and occupation in good faith. As far as requirement of landlord for residential building is concerned Section 13 sub-section (3) (a) (i) of Ordinance VI of 1959 is relevant, which states as under:-- "13(3) (a) A landlord 'may apply to the Controller for an order directing the tenant to put the landlord in possession--
(i) in the case of a residential building, if-- (a)he requires if in good faith for his own occupation or for the occupation of any of his children; (b)he is not occupying another residential building suitable for his needs at the time in the same urban area in which such building is situated; and (c)he has not vacated such a building without sufficient cause after the commencement of this Ordinance in the said urban area."
8. While need for on residential building is concerned, clause (ii) of subsection (3)(a) of Section 13 of the Ordinance is relevant. In present case the disputed property' is admittedly a residential house, which is also required by the respondent/ applicant for his personal use and occupation i.e. for his residential purposes. But keeping in view the evidence produced 'by him (respondent/applicant) there is intention of converting the residential building into non-residential building. Thus in the circumstances he was required to obtain permission in writing from the Controller for conversion of residential building into non-residential building as required under Section 11 of the Ordinance VI of 1959. The respondent/applicant was required to move the application under said section while seeking eviction of the appellant/ respondent, which he failed to do. This aspect of case has not been considered by the trial Court. Thus in above mentioned circumstances and facts the respondent/applicant has failed to Establish his requirement of house in question for his personal bonafide use and occupation.
9. The second ground on which eviction of the appellant/ respondent was sought is default h payment of monthly rent. As per respondent/ applicant the appellant/ respondent has failed to pay the rent from last five years, no specific late is mentioned in the application. In reply the appellant/ respondent contended that as the owner Noor Ahmed refused to receive the rent, whereupon he started depositing the rent in the Court in his name from January 1999. Though AW- II and the respondent/ applicant in their statements stated that rent has not been paid from last 6/ 7 years, but they have failed to specify the month from which default was alleged to be made.
10. While on the other hand the appellant/ respondent along with his reply filed Photostat copy of challans, which reveals that the rent his been deposited since January 1999 in favour of Noor Ahmed. Admittelly the rent has not been paid to the respondent/applicant in all these sears even after death of Noor Ahmed as it is also an admitted position that after death of his father, the respondent/ applicant never served be appellant/respondent notice about change of title as required to be served under Section 13-A of the Ordinance VI of 1959, which states as under:-- "13-A. A tenant to be informed in case of transfer of ownership. Where the ownership of a building in the possession of a tenant or rented land has been transferred by way of sale, gift, inheritance or in any other manner, whatsoever, from one person to another, the new owner shall send an intimation of such transfer in writing by registeret post, to the tenant of such building or rented land, and the tenant shall not be deemed to have defaulted in the payment of rent for the purposes of clause (i) of sub-section (2) of Section 13, if the rent due is paid within thirty days from the date when the intimation should in the normal course have reached him"
11. Thus in absence of the required notice tie question of payment of rent to him does not arise before filing of the eviction application. It is also apparent from the record that the trial Court ordered for deposit of rent tentatively through order dated 11.10.2(07; non-compliance of the same has not come on record. The respondent/applicant failed to establish the ground of default in payment of rent. Tie trial Court has made an error while deciding this issue too.
12. The third issue is in respect of ate of rent. As per respondent/ applicant the house in question was rerted to the appellant/ respondent at rate of Rs.300/- per month, while in reply the appellant/ respondent asserted it to be at the rate of Rs.10(/- per month. Though the trial Court arrived to the conclusion that agned rent was Rs.300/- per month simply relying on statements of respondent / applicant and his witnesses. But there is no rent receipt or any other document which is placed on record, from which it can be ascertained that agreed rate of monthly rent was Rs.300/-. While on the other hand the appellant/ respondent asserted it to be Rs.100/- per month, he placed on record the challan pertaining to year 1999. Reliance can be made on the same. As per respondent/ applicant's own showing, in his main application filed in year 2007, that his father died 5/6 years back, this means he died in year 2001 or 2002, as such the appellant/ respondent was depositing rent in his favour from year 1999 at the rate of Rs.100/- per month in case there was any grievance he (Noor Ahmed) may in his life time objected the same. Nothing contrary is placed on record by the respondent/applicant, mere oral statement of him and his witnesses cannot be relied. Even in the circumstances, when none of them claimed to be eye-witness nor asserted that rent was ever paid in their presence.
13. The trial Court has not properly assessed the evidence and come to the conclusion, which is not based on material present on record, thus liable to be set aside. In view of above discussion the appeal is hereby accepted. The impugned judgment dated 26.12.2008 is hereby set aside. Further, the appellant has been depositing the rent at the rate of Rs.150/- per month as per order of the trial Court dated 11.10.2007, as the rate of rent is decided to be Rs.100/- per month, therefore, .the excess amount deposited by the appellant will be adjacent towards future rent.
14. No orders as to costs.