ROZI KHAN BARRECH, J.---- Through this appeal filed under Section 15 of Balochistan Urban Rent Restriction Ordinance, 1959 (the "Ordinance ") the appellant impugns his ejectment from shop No. 29 ("shop in dispute ") situated at Haji Fateh Khan Road Quetta bearing Khasra No. 677/1, 2, 10, 11 by judgment dated 31.10.2016 ("impugned judgment ") passed by learned Civil Judge-IX/Rent Controller Quetta ("trial court" ) in Eviction Application No.04/2014.
2. Facts necessary for disposal of this appeal are that the respondent/applicant had filed the aforesaid Eviction Application under Section 13 of the Ordinance for eviction against the appellant, stating therein that applicant is landlord/owner of shop in dispute situated at Haji Fateh Khan Road Quetta bearing Khasra Nos. 677/1, 2, 10, 11 and the applicant rented out the said shop to respondent at monthly rent of Rs.800/- to be paid on 5th of every month. He has constructed a building adjacent to the shop in dispute and the said shop amongst others belongs to applicant consisting of old construction and applicant being jobless is in bona fide need of the shop in dispute which he intends to demolish and reconstruct the same and to start his own business of showroom. In this regard the applicant has prepared and got approved a building map from the concerned quarter . The applicant further contended in his application that his brother and nephew have also vacated their shops which are located adjacent to the shop in dispute and their shops had also been rented out under the same agreement; that the applicant was previously practicing as an advocate but due to mental illness he has failed to continue his practice, therefore he wants to start his own business and the shop in dispute along with other shops adjacent to same in good faith are required for his personal bona tide use.
In rebuttal the appellant contested the application by way of filing rejoinder , denying the respondent's claim on legal as well as factual grounds.
3. Out of the pleadings of the parties the trial court framed the following issues: "i) Whether the instant application is barred due to rejection of previously instituted eviction application of the applicant? ii) Whether the instant application is not maintainable due to execution of agreement by the parties? iii) Whether the shop in question is required to the applicant for his personal bona fide use? iv) Whether the applicant is entitled to the relief claimed for? v) Relief?"
4. After framing the issues both parties produced their respective evidences. The trial court after hearing arguments of learned counsel for the parties vide impugned judgment dated 31.10.2016 allowed the eviction application and directed the appellant to handover vacant possession of the shop in dispute to the applicant/respondent within two months. Hence, this appeal.
5. Arguments pro and contra heard. Material made available on record perused in the light of relevant provisions of law.
6. It transpires that prior to filing the instant eviction application, earlier the applicant/respondent had filed another eviction application which was subsequently withdrawn by the applicant "because he had got another shop vacated on the basis of compromise for his personal bona fide use as has been observed by the trial court in the impugned judgment, meaning thereby that the same was not adjudicated on merits. In the Ordinance, Section 14 deals such like dispute. For better appreciation of the provision ibid it is reproduced as under: "The Controller shall summarily reject any application under subsection (2) or under subsection (3) of S.13 which raises substantially the same issues as have been finally decided in a former proceeding under this Ordinance." reading of this section makes it clear that an ejectment application on an issue would only be barred if the application on the same issue had earlier been decided on merit between the parties.
Under section 13(2) the grounds of ejectment of tenant are mentioned and section 13(3) the grounds available to landlord for filing the ejectment petition are available, this mean if earlier ejectment petition was decided on the grounds mentioned in section 13(2), (3) finally then under section 14 of the Ordinance 1959 the Rent Controller will reject the petition summarily . Section 14 clearly provides that an application raising substantially . the same issue which has been finally decided in a former proceeding shall be rejected. This provision contemplates decision on merits. Where the order of dismissal is on technical ground or for non-prosecution, without deciding the matter on merits it cannot be a bar to filing a fresh application on the same ground. In the case in hand the respondent/landlord admittedly filed the Eviction Application, which was dismissed as the applicant withdrew the same on basis of compromises arrived at between the parties. Reliance in this regard is placed upon Allah Rakha v. Muhammad Shafi (1978 SCMR 437) as well as the case titled as Mursleen v. Ghulam Sarwar and others (PLD 1987 Quetta 8 ).
7. The next question is with regard to construction and demolition of the shop in dispute including four shops in possession of the other tenants. In support of his claim the respondent/landlord also produced before the trial court the requisite permission of construction and building plans approved by the competent authority i.e. Ex.AW/3, which was produced by Jan Muhamma d Junior Clerk, representative of Metrop olitan Corporation Quetta. The respondent/landlord requires the shops in dispute in order to run his own business. The respondent appeared in the witness box and unequivocally deposed about the need of shop in dispute for his personal bona fide needs.
Such statement of respondent on oath not only remained consistent with the assertions made in the eviction application but also remained unshattered in the cross-examination. It is worth while to mention here that the respondent/applicant Muhammad Khalid died during pendency of this appeal, hence this court directed the appellant to file amended title of the appeal by impleading the legal heirs of the deceased respondent/applicant namely Muhammad Khalid, which was accordingly filed. It was argued by learned counsel for the appellant that since respondent/applicant has died during pendency of the appeal, therefore the ground of personal bona fide use is not available to newly added respondents/legal heirs of deceased respondent. It is to be noted that the predecessor of the respondents succeeded in his application on the ground of personal bona fide need of occupation. The trial court ordered the appellant to vacate the shop in dispute in favor of the late respondent/landlord through a decree. The term 'decree' has been defined in Section 2(2), 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 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 entitled 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 devolved upon his legal heirs and they have the right to defend the decree and are entitled to contest the appeal.
Although the original landlord/responden t (late), filed the ejectment application on the ground of his personal requirement yet to say with his death the cause of action neither survived nor transferred to his legal heirs is not correct because it is established principle of law that a contract is always enforcea ble against the legal heirs or the successorin-interest of the original party and unless a contrary intention appears by the contract, the same does not abate with the death of the parties in terms of section 42 of the Contract Act.
8. It is established from the record that respondent/applicants bears needful approved site plan and building permit which is a strong corroborative piece of evidence in support of his claim for personal bonafide requirements. In the case of Ghulam Muhammad and another v Maqsood Hussain and 3 others (1984 SCMR 1142) the Hon'ble Supreme Court observed as under: "...... landlords, having obtained the necessary sanction for the erection of a new building...... were under no further obligation ................ to prove further the premises were reasonably and in good faith required by them for the said purpose, and were, therefore, entitled under the law to evict the tenant...."
9. It has also come on record that the applicant/landlord also filed eviction application for possession of four other shops against the tenants which has already been accepted by the Rent Controller Quetta.
It is hard to believe that the eviction application so filed by the respondent/applicant on the ground of reconstruction was mala fides as he has to demolish not only the shop in dispute but also other portion of the building including the other four shops. In so far as the plea of personal bona fide need of the landlord/applicant is concerned, the respondent/applicant also produced Muhammad Arif Shah (AW-1), Kamran Akbar Shah (AW-2) and Jan Muhammad (AW-3) who corroborated the statement of landlord/applicant as well as the ground taken by the applicant/landlord in the application. The respondent/landlord in my view adduced cogent, correct and worthy of credence evidence to substantiate his version. The applicant/landlord and AWs explained genuine bona fide and personal need in a simple, straightforward and convincing manner . They stood firm to the test of cross-examination and nothing beneficiary could be extracted in spite of numerous searching questions.
10. It is well-settled by now that where the statement of landlord on oath was quite consistent with his averment made in the ejectment application, neither his statement was shaken nor anything was brought in evidence to contradict the statement that would be considered sufficient for acceptance of the ejectment application. In this regard we are fortified by the dictum laid down in case titled Juma Sher v. Sabz Ali 1997 SCMR 1062 and the case titled as Muhammad Shoaib Alam and others v Muhammad Iqbal and others (2000 SCMR 903 ).
11. With regard contention of learned counsel for appellant in respect of clause 4 of the agreement between the parties, it is deemed appropriate to reproduce the said clause of the agreement, which speaks as under: {{URDU TEXT}} A plain reading of the above quoted compromise deed clearly manifests that no ban has been imposed upon the respondent in institution of eviction application on the grounds mentioned in Section 13 of the Ordinance, 1959.
Even otherwise, such a condition, which, by itself, is inherently against the provisions of the Ordinance, 1959, which gives a right to the landlord to seek eviction on the ground of personal need, cannot be termed to be a legal condition. Even if by mutual consent, such a condition was agreed upon, the same cannot have perpetual effect, depriving the landlord from seeking eviction on the ground of personal need if at later point of time such a need accrues.
I am of the considered view that under the provisions of Articles 23 and 24 of the Constitution of Islamic Republic of Pakistan, 1973, the right of property as a fundamental right is protected. Admittedly , the right of ownership is superior than the right of tenancy . Thus, the appellant, being inferior of status regarding the utilization of shops in dispute, cannot determine the sufficiency or insuf ficiency . The findings of the Rent Controller regarding personal requirement of the respondent are based on elaborate, careful and correct appraisal of evidence and do not suffer from any misreading of the evidence.
In view of what has been discussed above, this appeal has no merits and the same is dismissed. However , the appellant is directed to vacate the shop in dispute within a period of two (02) months from the date of pronouncement of this order , subject to payment of monthly rent.