NAEEM AKHT AR AFGHAN, J.---The instant appeal has been filed by the appellant against the judgment dated 8th September 2009 (hereinafter "the impugned judgment ") passed by learned Civil Judge-III/Rent Controller Quetta (hereinafter "the Rent Controller ") whereby eviction application No.02/2007 filed by the appellants against the respondent has been dismissed.
2. After hearing learned counsel for the appellants and learned counsel for respondent, we have perused the available record which reveals that vide tenancy agreement dated 27th Septe mber 2003, the-disputed shop situated at corner of Fatima Jinnah Road/T ola Ram Road Quetta was rented out to the respondent by appellant No.2 for eleven months at monthly rent of Rs.2,000/- .
In the said tenancy agreement, the appellant No.2 mentioned himself as owner of the disputed shop.
3. In pursuance of above tenancy agreement, the rent receipts were issued to the respondent bearing title as 'Inayatullah Khan and sons' . Inayatullah Khan was father of the appellant No.2.
The father of the appellant No.2 filed eviction application No.96/2005 against respondent before the Court of learned Civil Judge/Rent Controller-IV Quetta which was dismissed on 18th February , 2006 on the ground that father of the appellant No.2 had failed to prove relationship of landlord and tenant with the respondent and that the tenancy agreement was executed by respondent with the appellant No .2 .
4. Subsequently , the appellants filed eviction application (subject matter of the instant appeal) on 24th May 2006 before the Rent Controller seeking eviction of respondent from the disputed shop on the ground of default in payment of monthly rent w.e.f. September 2005 till date and on the ground of personal bona fide need and requirement of the disputed shop for appellant No.1 (the recorded owner) for running his business.
5. The eviction application was conteste d by respondent by filing reply with the contention that there exists no relationship of landlord and tenant between the parties; that the respondent has purchased the disputed shop from Syed Abdul Majeed Agha for consideration of Rs.35,50,000/- vide agreement dated 21st June, 2005, that Syed Abdul Majeed Agha had previously purchased the disputed shop from appellant No.2 for sale consideration of Rs.29,00,000/- vide agreement dated 9th June, 2005; that after dismissal of previous eviction application filed by father of appellant No.2, the instant eviction application has been filed by the appellants to harass the respondent with ulterior motives; that appellant No.2 being real owner of the disputed shop is backing out from the sale agreement dated 21st June 2005; that civil suit for specific performance filed by Syed Abdul Majeed Agha is pending before the Court of civil jurisdiction and till determination of the title of the disputed shop, the eviction application is not maintainable; that the eviction application is suffering from non-joinder of necessary parties as the other surviving legal heirs of late Saadullah i.e. brothers and sisters of appellant No.1 have not been impleaded as party to the eviction application.
6. While denying default in payment of monthly rent, it was contended by respond ent that since the disputed shop has been purchased by him from Syed Abdul Majeed Agha on 21st June 2005, therefore no occasion arises for him to pay monthly rent of the disputed shop to appellant No.2.
7. While denying personal bona fide need and requirement of the disputed shop for the appellant No.1 to run his business, it was contended by the respondent that the disputed shop does not belong to appellant No.1; that the disputed shop has been sold by appellant No.2 to Syed Abdul Majeed Agha from whom he had purchased the same, therefore, there is no occasion for the appellant No.1 to seek eviction of the respondent on the ground of his personal bona fide need and requirement of the disputed shop
8. On the basis of pleadings of the parties, learned Rent Controller framed the following issues: "1. Whether there exists a relationship of landlord and tenant between applicants and respondent?
2. Whether the respondent committed default in payment of rent since September , 2005?
3. Whether the applicant No.1 requires the said shop in question for his personal bona fide use?
4. Reliefs?
9. After framing issues, the parties led their oral as well as documentary evidence and got recorded statements of their attorney .
10. After concluding evidence and hearing arguments, while deciding issue No.1 in negative, learned Rent Controller held that the appellant No.1 has failed to prove his ownership for the disputed shop.
Issue No.2 with regard to default in payme nt of monthly rent and issue No.3 with regard to personal bona fide need and requirement of appellant No.1 for the disputed shop have also been decided in negative on the basis of findings in negative upon issue No.1.
11. While resolving issue No.1 in negative, learned Rent Controller has failed to appreciate that the respondent was inducted as tenant in the disputed shop by appellant No.2 who is relative of appellant No.1 .
The rent receipts available on record reveal that same were issued to the respondent by appellant No.2 for the disputed shop with the title 'Inayatullah and sons ' .
It further reveals that subsequently the disputed shop was mutated in the name of appellant No.1, his mother , his brothers and sisters vide inheritance mutation No.416 dated 6th April 2006, whereafter in May 2006 eviction application was filed by the appellants.
12. While resolving issue No.1 in negative by holding that notice under section 13-A of the Balochistan Urban Rent Restriction Ordinance, 1959 (hereinafter "the Ordinance") about change of ownership of the dispu ted shop was not issued by appellant No.1 to the respo ndent, the learned Rent Controller has failed to appreciate that eviction application itself was to be regarded as sufficient notice under the provisions of section 13-A of the Ordinance.
Reference in this regard is made to the case of Khurshid Begum v . Qamar-ud-Din 1990 CLC 1463 .
Reference in above regard is also made to the case of Muslim Commercial Bank v. Karim Bakhtiar , PLD 1988 Quetta-1 , wherein it has been held as follows: "Relation of parties as landlord and tenant could not be challenged after transfer of property by way of gift, sale or inheritance.. ....The filing of ejectment application may be considered as notice of demand if the previous owner or landlord has not claimed his title to the rented premises.
Reliance in this regard is also placed on the case of Pak. National Shipping Corpn. v. Gene ral Services Corpn .
1992 SCMR 871 , wherein it has been held as follows: "Institution of ejectment application and receipt of copy of the said application by which the tenant comes to know about the transfer of property constitutes due notice and can be treated as substantial compliance with the provisions of S.18, Sindh Rented Premises Ordinance, 1979 or S. 13-A of the West Pakistan Urban Rent Restriction Ordinance, 1959".
In view of the above, the filing of eviction application by appellant No.1, being owner by, virtue of inheritance mutation, by the appellant No.2, being landlord, and receiving of the copy of the same by the respondent, is held to be substantial compliance of section 13-A of the Ordinance.
13. While denying relationship of landlord and tenant with the appellants for the disputed shop it was contended by respondent that he had purchased the disputed shop from Syed Abdul Majeed Agha vide Iqrar Nama dated 21st June 2005 who had previously purchased the same from appellant No.2 vide sale deed dated 9th June, 2005.
At the time of filing reply to the eviction application by the respondent, the Civil Suit No.171/2009 filed by Syed Abdul Majeed Agha against the appellan ts and others for declaration, permanent injunction, specific performance and cancellation of mutation entry with regard to the disputed shop was pending before the Court of learned Civil Judge-VI Quetta but subsequently vide order dated 5th November 2009 the learned Civil Judge-VI Quetta rejected the plaint of. that civil suit under Order VII, Rule 11 C.P.C. which was not challen ged by the alleged purchaser of the disputed shop i.e. Syed Abdul Majeed Agha.
In Civil Suit No.171/2009 the respondent had submitted an application under Order Rule 10 C.P.C. which was not decided.
14. The order dated 5th November 2009 passed by learned Civil Judge-VI Quetta rejecting the plaint of Civil Suit No.171/2009 under Order VII, Rule 11, C.P.C. which was filed by Syed Abdul Majeed Agha was challenged by respondent (despite not being party to the suit) before this Court by filing R.F.A. No.06/2010 which has already been dismissed by this Court vide judgment and decree dated 18th December , 2018.
15. In order to assert his claim of bona fide purchaser of the disputed shop from Syed Abdul Majeed Agha (whose title for the disputed shop has not been established till date), the respondent has not separately filed any civil suit for declaration of his title for the disputed shop.
16. While resolving issue No.1 in negative, learned Rent Controller has failed to appreciate that respondent was inducted in the disputed shop as tenant by appellant No.2 whereafter the disputed shop came to share of appellant No.1 through inheritance mutation.
The learned Rent Controller has failed to appreciate that in the facts and circumstances of the case, the respondent cannot wriggle out of his status as tenant of the disputed shop.
The trial Court has also failed to appreciate that the respondent is a tenant in the disputed shop and his status, will remain unchanged in view of the principle of law that ," once a tenant always a tenant ".
Mere denial of relationship of 'landlord and tenant by respondent with appellant No.1 will not change the status of the respondent as tenant of the disputed shop. Reference in this regard is made to the case of Muhammad Shahid Nawaz v . Muhammad Saeed 2010 CLC 1941 .
17. With regard to objection of respondent about non-joining of necessary parties i.e: co-owners of the disputed shop as applicants, suffice to observe here that there is no bar for filing of eviction application against a tenant by anyone of the co-owners. According to settled principles of law, a joint owner can competently file eviction application against a tenant under section 13 of the Ordinance particularly when none of the co-sharer comes forward with any adverse claim.
18. In view of all the above, I have no hesitation to conclude that the denial of relationship of landlord and tenant by the respondent with the appellants was contumacious making the respondent liable for eviction from the disputed shop forthwith and there was no occasion for the learned Rent Controller to give findings in negative upon issue No.1.
19. On reappraisal of the evidence available on record it is further concluded that while dismissing eviction application by giving findings in negative upon issue No.1, the learned Rent Controller has erred in facts as well as law and has failed to properly appreciate the evidence available on record.
For the above reasons, the appeal is accepted the impugned judgment dated 8th September 2009 passed by learned Civil Judge-III/ Rent Controller Quetta is set aside and the eviction application G No.02/2007 filed by the appellants against the respondent is accepted with directions to the respondent to hand over vacant possession of the disputed shop to the appellants forthwith.
Since no order can be passed under the provisions of the Ordinance against the respondent to pay arrears of monthly rent of the disputed shop for period of more than three years, therefore the respondent is directed to pay monthly rent of the disputed shop to appellant No.1 for the last three years @ Rs.2000/- per month.
For recovery of the remaining arrears of the monthly rent of the disputed shop, the appellants may approach the Court of civil jurisdiction.
Decree sheet be drawn separately .