' ZAHEER-UD-DIN KAKAR, J.-- This first appeal is directed against the Judgment and decree dated 24th April, 2014 "the impugned judgment and decree", passed by the learned Civil Judge-VIII-cum- Rent Controller, Quetta "the trial Court", whereby the eviction application filed by the respondent/applicant was accepted and the appellant was directed to handover the vacant possession of the house to the respondent within a period of two months with further direction to pay the payable rent amount. During pendency of the appeal, respondent/applicant Abdul Majeed died and the present respondents have succeeded him in the case.
2. Precisely stated facts of the case are that the predecessor of the respondents filed the eviction application No,7/2013 against the appellant on the ground of personal bona fide need and occupation in respect of the house in question constructed over the land bearing Khasra Nos.54, 55, 56 and 57, Ward No,48, Tappa Urban, Tehsil and District Quetta, bounded in para-1 of the eviction application. According to para 3 of the eviction application, the applicant has also filed eviction applications against the four shops and three houses and he after getting vacant possession remove the intervening walls between the premises and made it a big shop for stocking construction material. The appellant filed his reply to the application raising legal objections regarding maintainability of the application and also contested it on merits. Out of the pleadings the trial Court framed the following issues: ISSUES 22.04.2014 i. Whether the eviction application of the landlord/owner is not maintainable in the light of Section 11 of the Urban Restriction Ordinance, 1959, wherein the landlord/owner shall not convert a residential building into non-residential building without permission in writing of the controller? ii. Whether the tenement/shop is required to the landlord/owner for his personal bona fide use? iii. Whether the applicant/landlord is entitled for the relief claimed for? iv. Relief?
3. In support of his claim, the predecessor of the respondents himself appeared before the trial court and submitted his affidavit as well as the affidavits of his witnesses namely, Shah Muhammad and Arbab Abdul Malik, who appeared before the trial Court as Aws.1 and 2, respectively, and the trial Court afforded full opportunity to the counsel for the appellant to cross- examine them. On the other hand, the appellant/respondent submitted his affidavit along with affidavits of his five witnesses, namely, Abdul Majeed, Muhammad Ishaq, Asghar Abbas, Haji Allah Yar and Imtiaz Muhammad, who appeared before the trial Court as RWs.1 to 5 respectively. RW-1 Abdul Majeed and RW-5 Imtiaz Muhammad deposed that the property in question was rented out to the respondent/appellant in dilapidated condition in the year 1962 and he spent Rs,7,00,000/- over the house in question but the applicant did not pay a single penny to him. RW-2 Muhammad Ishaq, representative of SSGC, RW-3 Asghar Abbas, representative of PTCL and RW-4 Allah Yar, representative of Qesco produced Utility Bills as Ex-R/1, Ex-R/2 and Ex-R/3, which are in the names of Naseer-ud-din, Muhammad Nasir and Sher Muhammad, respectively. Lastly the respondent/appellant appeared before the Court and reiterated the contents of reply to the eviction application, but he has failed to produce a single document/receipt which show that he had spent Rs,700,000/- upon the house in question. The trial Court also afforded full opportunity to the counsel for respondents to cross-examine them. After hearing the arguments, the learned trial Court issued ejectment order as mentioned above, hence this appeal.
4. Learned counsel for the appellant stated that since the respondent/ applicant has died during pendency of the appeal, therefore, the ground of personal bona fide use is not available to the newly added respondents/legal heirs. According to the learned counsel, they cannot get the advantage of the impugned judgment nor can defend the same, therefore, he requested for setting aside the same. On merits as well, the learned counsel argued that father of the respondents had failed to prove his personal bona fide use and occupation. It is further contended that till date no permission for conversion of premises from residential to commercial has been obtained by the respondents, saying that this permission can be obtained later on is very strange and highly un-call for even otherwise, the mala fide is apparent from the material available on record.
5. Learned counsel for the respondents opposed the contentions and stated that upon the death of the applicant, the right of his legal heirs to defend the order and decree does not abate. According to him, the right has been granted to the deceased applicant, which has devolved upon his legal heirs, therefore, they are entitled to get the possession of the house and the objection so raised by the learned counsel for the appellant is not sustainable. He further stated that the predecessor of the respondents was able to prove his case through reliable witnesses and the appellant has failed to point out any mala fide on the part of the landlord. The evidence has properly been considered by the trial Court, while accepting the application, hence, no illegality has been committed.
6. I have heard the learned counsel for the parties and have perused the record. Considering the contention of the learned counsel for the appellant regarding the maintainability of the application, it is to be noted that predecessor of the respondents succeeded in his application on the ground of personal bona fide need and occupation. The trial Court ordered the appellant to vacate the house in favour of the deceased/ landlord through a decree. The decree has been defined in Section 2(2) of the C.P.C., which means the formal expression of adjudication, determining the rights of the parties to the suit, etc. The word "party(s)" shall include his/their legal representative(s), who represent(s) the estate of deceased and steps in to his/her/their shoes. A decree is a declaration of right of a party, which entitles him to get such right. In an eviction proceeding, a decree in favour of an applicant entitles him to get the possession of the disputed property, therefore, upon his death, the decree does not abate. Once a right is accrued in favour of the decree-holder, after his death, it automatically devolves upon his legal heirs and they have the right to defend the decree and are entitled to contest the appeal.
7. The next question relates to interpretation/application of Section 11 of the Balochistan Urban Rent Restriction Ordinance, 1959 "the Ordinance". Learned counsel for the appellant has argued that prior permission of the Rent Controller for conversion of the residential property in to a commercial one was necessary and since this permission had not been obtained by the predecessor of the respondents, the eviction application must fail. I am afraid this is not so. The eviction application contained an averment about the need of the respondents for use of the disputed premises for commercial purposes. No specific permission for conversion of residential property into non- residential was required. The plea that eviction application filed by the landlord in respect of residential premises for non-residential purposes has been accepted would be deemed to be sufficient compliance of Section 11 of the Ordinance. See K.H. Hiramanek v. Shafqat Aslam (1997 M LD 1800), in which it was held that: "No specific permission for conversion of residential property into non-residential was required and the plea that ejectment petition filed by the landladies in respect of residential premises for non-residential purpose has been accepted would be deemed to be sufficient compliance of the Section 11 of the Ordinance.
' Also see Mst. Zubaida Sultana v. Dr. Ikhlaq Ahmed and others (1992 ALD 164 (2) (Lahore)), + Sooba v. Siraj Din (PLD 1977 Lahore 1263). This objection being devoid of force is over ruled."
8. Admittedly, the predecessor of the respondents filed eviction application on the ground of personal bona fide need. In support of his claim, he produced two witnesses and has also recorded his own statement. The evidence produced by the predecessor of the respondents was not only consistent, but also in conformity with the contents of the application. The witnesses of the landlord were firm and were not shaken despite lengthy cross-examination. Even otherwise, the Ordinance has provided protection to a tenant under Section 13 subsection (4), therefore, if the respondents fail to get the possession of the house in the stipulated period or after getting the possession, re-let it to someone else within a period provided by law, the appellant has the right to recover the possession of the house. It is settled principle of law that on the ground of personal bona fide need, the case of the landlord stands proved if (i) his statement, in the pleading is consistent with his evidence (ii) his testimony has not been rebutted in the evidence of the tenant, which saying so, in this regard I am guided-by the case law reported in case of Muhammad Shoaib Alam and others v. Muhammad lqbal (2000 SCM R 903), in which it has been held that: "That statement of landlord on oath, if consistent with the application for ejectment and not shaken in cross-examination or disproved in rebuttal. Was sufficient to prove that such requirement of landlord was bona fide." I am also guided by case laws reported in 1984 CLC 2427 + 1993 CLC 2380 + 1989 CLC 247."
9. In the light of above scale of law laid down by the superior Courts, I have carefully examined the pleadings and evidence of the parties. Although, a lengthy cross-examination was conducted by the learned counsel for the appellant, yet applicant stood test in his own version and his testimony was not shaken. I also rely upon 2004 M LD 587, wherein it has been held that; "Bona fide need of landlord mere statement of the landlord to the effect that he needed premises in question for his personal need, would be sufficient proof of personal need of landlord."
10. The trial Court, after assessm ent of the facts, circumstances and the evidence available on record, has rightly accepted the application; therefore, the judgment and decree impugned are just and proper. The learned counsel for the appellant has failed to point out any illegality or irregularity warranting this Court to interfere in it.
11. Thus, in view of what has been stated and discussed hereinabove, the appeal is accordingly dismissed. However, enabling the appellant, to shift his household articles from the house in question to some other premises, he is granted two month's time from today to vacate and handover the vacant possession to the respondents.