1. ' MRS, SYEDA TAHIRA SAFDAR, J.--- The appellant being aggrieved of judgment dated 10-2-2009 of 'Civil Judge-IV/Rent Controller Quetta, whereby the application filed by respondent, seeking eviction of appellant was allowed, preferred instant appeal with contention that the trial Court failed to consider the facts, while allowing the application in arbitrary manner and ordered for his eviction. It is his contention that the evidence was not properly appreciated, nor the material available on record was considered, keeping in view the relevant law. He prayed for setting aside of impugned judgment, and dismissal of application filed by the respondent.
2. ' Brief facts of the case are that the respondent/applicant filed an application under section 13 of the Balochistan Urban Rent Restriction Ordinance-VI of 1959, claiming himself being owner and landlord of shop, bearing Inteqal No,522, Mohal Mou'za Khasra No,467, measuring 383 square feet, situated at Kasi Road, opposite Killa Kasi. Quetta, which is in occupation of appellant/respondent as his tenant, at the rate of Rs,300/- per month. The respondent/applicant sought eviction of the appellant/respondent on the ground of non-payment of rent for last 12 years, and requirement of shop in question for his personal bona fide use. In reply the appellant/respondent though admitted, existence of relationship of landlord and tenant between the parties, but he denied non- payment of. Rent. It was his contention that he with permission of respondent/applicant Muhammad Anwar and his brother re-constructed the shop in question and thereby spent an amount of Rs,1,07,000. Further, asserted that it was agreed between the parties, that the amount so spent, on construction of shop in question would be adjusted in monthly rent. He, further raised contention that the agreed rate of rent was Rs,200/- per month. The appellant/respondent also denied the ground of personal use, while raised contention that application has been filed with maw fide intention just to pressurize and blackmail him. He prayed for dismissal of the application.
3. The trial Court framed issues on 13-7-2007. The respondent/applicant produced two witnesses, while recorded his statement in support of his contention. In rebuttal the appellant/respondent also produced two witnesses, and got recorded his statement. On completion of evidence, the trial Court through judgment dated 10-2-2009 arrived to the conclusion, that as the issues of default in payment of rent, and personal bona fide use are resolved in favour of the respondent/applicant, thus he (landlord) is entitled for the relief, while accepting the application ordered for handing over of vacant possession of shop in question, to the respondent/applicant within 60 days. The appellant/ respondent being aggrieved of the same preferred instant appeal.
4. ' Learned counsel for the parties are heard, while record is perused. The learned counsel for the appellant only contended, that the trial Court has failed to consider material present on record.
5. Further, mala fide intention of the respondent/applicant is apparent from his evidence, which has not been considered by the trial Court. While in reply, the learned counsel for the respondent/applicant contended that there existed no agreement about payment of half rent.
6. Further, the applicant/landlord has established his personal bona fide need of shop in question.
7. ' As far as existence of relationship of landlord and tenant between the parties is concerned, the appellant being tenant, admitted the existence of relationship. He (appellant) only denied the rate of monthly rent as asserted by the respondent/landlord, according to him the agreed rate of rent is Rs,200 per month. While, on the other hand the respondent/landlord claimed it to be at the rate of Rs,300 per month. The trial Court, though have framed issue No,1 to same extent, but failed to decide the issue properly. The perusal of record reveals, that neither of the parties, produced any receipt or document for assessm ent of rate of monthly rent as agreed between the parties. It is to be noted that during course of cross-examination AW-1 Muhammad Asif deposed that it was agreed between the parties that half of the agreed rent would be deducted in respect of construction, while the remaining half rent would be paid at the rate of Rs,150 per month. He, further admitted, that in December, 1997 he received rent of the premises at the rate of Rs,150, while receipt was for Rs,300. It is apparent from the court record that during cross-examination a rent receipt was confronted to the witness (AW-1), who admitted issuance of the same. The photocopy of receipt is present on record. It is to be noted, that the trial Court failed to properly bring on record this receipt; so confronted to the witness, thus made an error. In the circumstances as the receipt has not been properly brought on record, therefore, no reliance can be made on the same.
8. Keeping in view the above mentioned facts in view of admission made by AW-1 and AW-2, on suggestions it can safely be presumed that agreed rate of rent was Rs,300 per month.
9. ' The applicant/landlord contended that the appellant/tenant committed default in payment of rent for the last 12 years being bad paymaster, thus liable for eviction. The appellant/tenant denied the same, rather raised plea that as the shop in question was re-constructed by him with consent of landlord, while it was agreed between the parties that the amount so spent would be adjusted in monthly rent and lie would have to pay half of the rent, till the expenses incurred in construction be deducted from the remaining part of the rent. Though no written agreement in respect of the same has been produced by appellant/tenant, but the witnesses appearing on behalf of respondent/landlord admitted that shop in question was in dilapidated condition, once fallen down, while the appellant/tenant re-constructed it, with permission of their uncles, including applicant Muhammad Anwar. Though both the witnesses AW-1 Muhammad Asif and AW-2 Muhammad Hanif denied spending of huge amount of Rs,1,07,000 on construction, rather asserted that only an amount of Rs,17000 or Rs,18000 was spent on reconstruction, which had already been deducted from the monthly rent. Both the witnesses affirmed contention of appellant/tenant to some extent. As far as applicant/landlord is concerned, while appearing before the court, showed his ignorance while replying the suggestion put to him that the appellant/tenant, after obtaining the shop in question, reconstructed it and spent an amount of Rs,1,07,000, which was agreed to be deducted from the monthly rent. It is the appellant/tenant, who has to establish that he has spent an amount of Rs,1,07,000, for re-construction of shop, which he failed. As far as remaining portion of his contention, that the amount spent is to be deducted from the monthly rent is concerned, it is established by the statements of AW-1 Muhammad Asif and AW-2 Muhammad Hanif. The burden is on the respondent/landlord to establish default in payment of rent for last 12 years, but he failed to discharge the same.
10. ' As far as issue relating to personal bona fide use and occupation of applicant's son is concerned, the burden of this issue is also on the respondent/landlord to establish his bona fide intention. AW-1 Muhammad Asif and AW-2 Muhammad Hanif though contended that the respondent/landlord is in need of shop in question for his son Muhammad Asghar, as he wanted to start business of PCO in the same for his son, but during course of cross-examination, AW-2 Muhammad Hanif stated that the applicant/landlord has already filed an application seeking eviction of his tenant from another shop situated at Jinnah Road, Quetta. He further admitted that said eviction application is also filed on the ground of personal bona fide use. The respondent/landlord, while appearing before the trial Court denied the suggestion that any other shop at Jinnah Road, Quetta, is owned by him. He contradicted statement of his own witnesses. Section 13 subsection (3)(a)(ii), Ordinance-VI of 1959 provides the grounds, which are to be shown, and established by the landlord, while claiming a premises i.e. Non-residential building for his own use or for use of his children. This subsection states as under:--- "(3)(a) A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession-- (i)
(ii) ' In case of a non-residential building or scheduled 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 building 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 ' Provided that where the tenancy is for a specified period agreed upon between the landlord and the tenant, the landlord shall not be entitled to apply under this subsection before the expiry of such period: ' Provided further that where the landlord had obtained possession of a residential, scheduled or non-residential building or rented land under the provisions of sub-paragraph (i) or sub- paragraph (ii) he shall not be entitled to apply again under the said subparagraphs for the possession of any other building of the same class or rented land unless such residential, scheduled or nonresidential building or land is no longer suitable for his needs at the time."
11. ' In present case the respondent/landlord claimed his requirement for shop in question for use of his son. Thus the burden completely rests on him to show the need of shop in question, not only the same, but he has to establish his need in good faith. But keeping in view his (respondent/landlord) own evidence, this fact has come on record that he had already filed an application seeking eviction of his another tenant from another shop on ground of personal use. This makes a question mark on his bona fide, as he concealed these facts from the court.
12. ' The trial Court failed to consider the evidence present on record, rather based its findings on surmises and probabilities, which is neither proper, nor just. The burden to prove his bona fide use is completely on the applicant/landlord, who has failed to discharge the same. The person for whom shop in question is required never appeared before the court to establish the contention raised by the applicant/ landlord.
13. ' In view of above discussion the trial Court has failed to appreciate the evidence properly and also not considered the relevant law. Thus in the circumstances the order made by the trial Court is liable to be set aside. The appeal is accepted, impugned order dated 10-2-2009 of Civil Judge-IV/ Rent Controller, Quetta is hereby set aside. The application for eviction filed by the applicant/landlord is dismissed being without merits.
14. ' No orders as to costs.