' GHULAM MUSTAFA MENGAL, J.---This appeal under section 15 of the Balochistan Urban Rent Restriction Ordinance (VI of 1959) is directed against the order dated 30th April 2013 passed by learned Civil Judge-cum-Rent Controller, Pishin, whereby the application under section 13 subsection (4) of the Act was dismissed.
2. Brief facts for filing of this appeal are that the respondent instituted an eviction application under section 13 of Balochistan Urban Rent Restriction Ordinance of 1959 against the respondent contending therein that he is owner of a shop situated at Band Road, Pishin, which was rented out to the respondent. Eviction of the appellant was sought on the ground that the appellant committed wilful default in payment of rent of the shop and the shop in question being reasonably and in good faith required by the respondent for his personal use and occupation.
3. The eviction application was contested by the appellant by filing rejoinder to the application.
After recording the evidence of the parties, the eviction application was allowed by the Rent Controller vide order dated 10th October, 2009 and appellant was directed to vacate the shop in question and to hand over the vacant possession of the same to the respondent within three months after passing of the order.
4. Feeling aggrieved with the said order, the appellant filed an appeal under section 15 of Rent Restriction Ordinance before this Court. After hearing the parties the appeal was dismissed vide order dated 17th May 2011. Thereafter respondent filed execution application before the Court of Senior Civil Judge, Pishin on 24th November 2011 and after service of notice and hearing the parties the shop in question was handed over to the respondent on 17th December 2011. On 4th February 2013 the appellant filed an application under section 13(4) of the Ordinance for restoration of possession of disputed shop with the prayer that the possession of the shop in question may be ordered to be restored to the applicant/appellant. It was averred in the application that on 16th December 2012 the shop in question was handed over to the respondent but the shop is closed and neither respondent Mohammad Ibrahim nor his son has started any kind of business for which eviction had been sought, therefore, the applicant/appellant is entitled to restoration of possession of shop in question within the purview of section 13(4) of the Ordinance.
5. The appellant also submitted an application for appointment of Local Commissioner before the trial Court, which was allowed vide order dated 4th February 2013 and Mr. Roziddin, Advocate was appointed as Local Commissioner and he was directed to visit the site and to submit his report regarding the present status of the shop in question, who without notice to the respondent on same day as well as on 6th. February 2013 visited the site and submitted his report before the Court on 7th February 2013. The learned Senior Civil Judge-cum-Rent Controller, Pishin, after hearing the parties, dismissed the application for restoration of shop in question vide impugned order dated 30th April, 2013, hence this appeal.
6. Syed Imdad Shah, learned counsel for the appellant argued that the learned Rent Controller has failed to appreciate the material available on record in its true perspective. He contended that the respondent had succeeded in obtaining the vacant possession of the shop in question as back as on .16th December 2011 but after getting the vacant possession of the shop he has failed to occupy the shop in question and to start his business, therefore, the impugned order is liable to be set aside.
7. On the other hand Mr. Munir Ahmed Langov, learned counsel for the respondent supported the order of. Senior Civil Judge-cum-Rent Controller and argued that bona fides of the respondent/landlord cannot be doubted because he had neither re-let the shop in question to any one nor he failed to occupy the shop in question, therefore, section 13(4) of the Ordinance is not attracted in the present case.
8. The submissions made by the learned counsel for the parties considered and record of the case perused. For determination of the above controversy, it will be useful to reproduce section 13(4) of the Ordinance, which is as under:- "S. 13(4).---Where a landlord who has obtained possession of a building or rented land in pursuance of an .Order made under sub paragraph (i) or sub paragraph (ii) of paragraph (a) of section (3), does not himself or where, the building, has been got vacated for the occupation of any of his children, such child does not occupy it within one month of the date of obtaining possession, or have been so occupied is re-let within two months of the said date of any person other than the original tenant the tenant who has been evicted may apply to the Controller for an order directing that he shall be restored to possession of such building or rented land and the Controller shall make an order accordingly."
9. From a bear perusal of subsection (4) of section 13 it is clear that pre-requisite for attracting this section is when the landlord in pursuance of the order made under sub-paragraph (i) or sub- paragraph (ii) of paragraph (a) of section (3) does not himself or where the building has been got vacated for the occupation of any of his children, such child does not occupy it within one month of the date when in that case an application under section 13(4) shall be entertained.
10. As far as the first part of section 13(4) of the Ordinance is concerned, applying the same to the facts of the present case, it has come on the record that vacant possession of the shop in question was handed over to the respondent on 16th December, 2011, while the appellant/ applicant moved the instant application under section 13(4) of the Ordinance for restoration of possession of disputed shop on 4th February, 2013. According to the learned counsel for the applicant/ appellant that the respondent/landlord has failed to occupy the shop in question, there is no evidence on record to substantiate his contention. Rather the applicant/ appellant in para 8 of the application under section 13(4) of the Ordinance stated that on 16th December 2012 the applicant/appellant handed over the disputed shop to Muhammad Ibrahim (respondent) and shop is closed since 17th December 2011 and neither Mohammad Ibrahim (respondent) nor his son started any kind of business in the disputed shop. Record depicts that on the application of applicant/ appellant Mr. Rozuddin, Advocate was appointed as Local Commissioner by the trial Court on 4th February 2013, who without notice to the respondent visited the site and submitted his report on 7th February, 2013, which report was repelled by the trial Court. On the contrary, the respondent along with rejoinder to the application under section 13(4) of the Ordinance has annexed photographs as well as documents, showing that the respondent is running his business in the disputed shop. The learned counsel for the appellant could not point out any illegality or material irregularity or factual infirmity in the impugned order passed by learned Civil Judge Cum Rent Controller, Pishin, therefore, in the circumstances, it is not a fit case for making any interference in the impugned order.
11. The learned trial Court has properly assessed the application and recorded findings, which does not suffer from any illegality or irregularity. There are no merits in this appeal, which is hereby dismissed with no order as to costs.