' GHULAM MUSTAFA MENGAL, J.---This appeal under section 15 of Balochistan Urban ' Rent Restriction Ordinance No,VI of 1959 has been directed against the order dated 29th October, 2010, passed by the learned Civil Judge-III/Rent Controller, Quetta whereby the eviction application filed by the respondent against the appellant has been allowed and he was directed to hand over the vacant possession of the Shop No,4-13/7(7) situated at Abdul Sattar Road, Quetta to the respondent No,1 within four months.
2. Briefly stated facts of the case are that the appellant is tenant in Shop No,4-13/7(7), situated at Abdul Sattar Road, Quetta at a monthly rent of Rs,1,000 per month. In the year 1998 respondent filed an eviction application against the appellant and his son namely Ameenullah on the ground that the shop in question is required reasonably for demolition, reconstruction and personal bona fide use and occupation, as after construction of new building he wants to start the business of shopping centre/Mall and business of hotel in the said premises. The application was contested. It appears from the record that initially the eviction application was allowed on 31st March, 1999. The appellant being aggrieved by the said order filed an appeal hearing No, F.A.O. Nos.47 and 49 of 1999 before this Court, which was allowed vide order dated 8th November, 1999 and eviction application was dismissed. The respondent filed Civil Petition bearing No,7 and 8-Q of 2000 for leave to appeal before the honourable Supreme Court of Pakistan, which was dismissed vide order dated 21st September, 2004.
3. The respondent again instituted an eviction application on 18th November, 2008 under section 15 of Balochistan Urban Rent Restriction. Ordinance-VI of 1959 against the appellant and one Dr. Muhammad Akram, contending therein that he is owner and landlord of Shops No,4-13/ 7, (8, 9 and 10) and Shop No,4-13/7(7), situated at Abdul Sattar Road, Quetta. Shops No,4-13/7 (8, 9 and 10) are in occupation of respondent No,1 (Dr. Muhammad Akram) at a monthly rent of Rs,3,000 per month while Shop No,4-13/ 7(7) is in occupation of respondent No,2 (appellant) at a monthly rent of Rs,1,000 per month, payable on the 15th of every succeeding month.
4. It has further been contended that the shops in occupation of respondents are reasonably and in good faith required by the applicant for his personal use of business as well as for his son namely Masood Zaman. Consequently the appellant, as well as respondent No,1 (Dr. Muhammad Akram) was approached to hand over the vacant possession of the shops, but they refused to do the needful, hence, on these facts and grounds second eviction application was filed by the applicant/respondent .
5. Both the respondents in the eviction application were served and they by means of their rejoinders contested the eviction application.
6. Out of the pleadings of the parties, learned Civil Judge-III/Rent Controller, Quetta, framed the following issues:- "(1) Whether the application of the applicant is not maintainable in view of legal objection "A" "B" and "C", raised by the respondent?
(2) Whether the shops in question are required to the applicant for his personal bona fide use?
(3) Relief?"
7. The respondent/landlord in support of his claim in the light of above-mentioned issues filed sworn in affidavits of two witnesses namely Masood Zaman and Abdul Manan as well as filed his own duly sworn in affidavit in support of his claim. In rebuttal the appellant also filed sworn-in affidavits of two witnesses namely Zafar Ullah and Naqib Ullah and also filed his own duly sworn in affidavit. The learned Rent Controller after evaluating the evidence on record and hearing the learned counsel for the parties came to the conclusion that since the applicant/ respondent has succeeded to establish his case through evidence, as such, the eviction application was allowed vide order dated 29th October, 2010 and appellant was directed to hand over the vacant possession of shop in question to the respondent within four months, hence this appeal.
8. Mr. Zahid Malik, learned counsel for the appellant contended that the learned Rent Controller has not appreciated the evidence in its true perspective as the landlord/applicant has failed to establish his bona fides regarding his personal as well as his son's need and requirement. He further contended that mala fides of the landlord/applicant was reflected by his conduct as the issue of personal requirement was decided in the previous litigation, as such, instant application cannot be filed on the same ground. He further contended that appellant through reliable evidence proved that the applicant/ respondent is not a jobless and he has numerous other commercial buildings suitable for his business, but he mala fide intention not only concealed but denied, therefore, the eviction order is liable to be set aside.
9. On the other hand Messrs H. Shakeel Ahmad and Ayaz Khan Swati, learned counsel for the applicant/ respondent,,contended that respondent No,1 Dr. Muhammad Akbar has already vacated the shops and handed over the possession of same to the applicant/respondent. He further contended that there is no vacated shop suitable for purpose of departmental store and it is the choice of the landlord/respondent to choose the suitable premises for his business. Learned counsel for the landlord/respondent relied on case of F.K. Irani and Co. v. Begum Feroze (1996 SCM R 1178).
10. I have heard the learned counsel for the parties and have also perused the record of the case.
Admittedly, the applicant/respondent previously filed an eviction application, seeking eviction of the appellant and his son from the shop in question on the ground that shop in possession of appellant and Dr.Muhammad Akram are required reasonably for demolition, re-construction and 'personal bona fide use and occupation, as after construction of new building he 'wants to start the business of shopping center/mall and business of hotel in the said premises. The record reflects that the application was allowed by the Rent Controller. However, the order was set aside by this Court in appeal. Whereafter petition for leave to appeal was filed by the applicant/respondent before the .Honourable Supreme Court but the same was dismissed vide order dated 21st September, 2004. Now the landlord/ respondent sought the eviction of the appel-lant from the shop in question on the sole ground that the shop is required by him for his personal as well as for his son namely Masood Zaman's bona fide use and occupation.
11. The applicant/landlord as well as his witnesses claimed that the shops in question are required to the landlord/ applicant for his personal as well as his son's bona fide use as the son of landlord/ applicant is jobless. And after vacation he wants to start business of departmental store, because the disputed shops are situated in commercial area and there is no other suitable place with them for business. A.W.11. Masood Zaman in cross-examination admitted that:--{{URDU TEXT}}
12. The applicant Khalid Zaman in cross-examination stated that he is in possession of shop situated in the corner and voluntarily stated that in the said shop his agent namely Sher Muhammad is doing business of blankets. He further admitted that: {{URDU TEXT}} ' Adverting to the statements of R. Ws. And the respondent/tenant. R.W.1 Akram Jamil, R.W.2 Zafri.Illah, R.W.3 Naqeebullah and respondent/tenant deposed about the business of birds doing by the landlord/applicant in Dubai, Qatar and Pakistan and gave the detail of properties situated at Junction Chowk, Liaquat Bazar, Prince Road and Moti Ram Road, owned by the applicant. However they failed to prove the same.
13. The sole ground on which the eviction of the tenant was sought in the instant case was bona fide personal requirement of the landlord/respondent as well as his son namely Masood Zaman, who is jobless and are not occupying any area in which the shops in question are situated, for the purposes of business of departmental store. The appellant challenged the claim of the landlord/ respondent on two grounds; firstly, that the son of the applicant namely Masood Zaman is not jobless and secondly, that the applicant/landlord has number of other properties in the same vicinity and no reason has been stated for selecting of shops in question for his personal as well as for his son's bona fide use. The evidence brought on record reflects that the properties owned by the landlord/applicant are not vacant; that no evidence was brought on record to establish that the son of the applicant is not jobless; that the shop in question is not required to the applicant for his personal bona fide use and that the said shop is not suitable for his personal use and business of departmental store.
15. The law does not impose any bar on a person to establish a new business despite of the fact that he is already running another business. Similarly, it is settled law that it is the choice of the landlord to choose any of his property for his personal use. It is also settled that law does not bar filing of second eviction application if subsequently any ground provided by section 13 of Balochistan Urban Rent Restriction Ordinance, 1959 becomes available to the landlord. For such view, I am supported by the judgment of this Court 2000 M LD 87 (Dr. Arbab Ali Ahmed v. Sarwar Khan).
16. In this case, I am unable to find out any mala fide on the part of the landlord/ applicant and the application of the landlord/ applicant cannot be rejected on the ground that previously he had filed eviction application on one of the grounds provided by section 13 of the Balochistan Urban Rent Restriction Ordinance, 1959 and failed to prove the same.
17. Thus, having regard to the discussion made hereinabove, I am of the view that the respondent/landlord has proved that the shop in question is required by him for his personal as well as for use and occupation of his son. Resultantly, the appeal finds no merits, which is dismissed, with no order as to cost.