NAZEER AHMED LANGOVE, J. This appeal is directed against the judgment dated 20th October 2020 (hereinafter "the impugned judgment") passed by the learned Rent Controller/Judicial Magistrate- XII, Quetta (hereinafter "the trial Court"). The eviction Application No.01/2018 filed by the appellant was dismissed. Hence, this appeal with the following prayer: It is, therefore respectfully prayed that in view of above-tinned/facts and circumstances, the record of Eviction Application No.01/2018 filed by the appellant may kindly be called from the learned Rent Controller, Quetta after perusal of the same the impugned judgment and decree dated 20.10.2020 passed by the learned Rent Controller/Judicial Magistrate-XII, Quetta, may please be set aside and Eviction Application No.01/2018 filed by the appellant may please be allowed by accepting the instant appeal, in the interest of justice equity and fair play."
2. I have heard the learned counsel for the parties and gone through the record with their assistance reflecting that the appellant filed an Eviction Application against the respondents with the averments that he is the legal and lawful owner of the property bearing Khewat/Khatooni No.139/154-58 Khasra Nos.40, 41, 44 total measuring 1456 sqft out of which 371 sqft, situated at Mahal and Mouza Ward No.47 Tappa Urban-4 Tehsil City District Quetta, has been gifted to him by his brothers Saeed-ur-Rehman Khan, Faheem-ul-Zaman sons of Fazal-ur-Rehman (late) against consideration of Rs.29,68,000/- (Twenty Nine Lac Sixty Eight Thousand) followed by transfer of revenue entries in his name, vide gift mutation entry No.612, attested on 09th June 2017.
It was further stated that the property mentioned above, measuring 371 sqft, is commercial and consists of two shops bearing municipal numbers 8-23/65-A13 and 8-23/65-C, owned by the appellant with front-seat/platform .
The respondents were tenants of the previous owners; after the transfer of the property to the appellant, the respondents became his tenants w.e.f. 09th June 2017.
Respondent No.1 has been doing the business of Saloon and Barbar, whereas respondents Nos.2 and 3 sell vegetables in the half portion and front of the shops in dispute, against monthly rent of Rs.16,500/- and 13,000/- respectively.
The appellant approached and appraised the respondents of the newly emerged situation and his bona fide personal need of the shops but not responded.
Before this, the previous landlord of the shops in dispute filed an eviction Application No.01/2000 against respondent No.1 and father of respondents Nos.2 and 3, which was disposed of, based on compromise, vide order dated 06th April 2000. Similarly, one of the previous owners, Faheem-ul- Zaman Khan, filed a second eviction application against the respondents and other sub-tenants, including the platform ") occupiers of the shops in dispute, registered as rent Application No.10/2011, wherein eviction of the respondents were sought for the appellant, being the real brother of the previous owners. However, the learned Rent Controller did not accept the said ground of personal bona fide use and occupation, vide order dated 06th May 2014. Assailed in F.A.O. No.55/2014; however, during the pendency of the appeal, the previous owner requested for withdrawal of the appeal, which was allowed with permission to avail remedy before the competent Court of law subject to all just exceptions, vide order dated 26th April 2017 passed by this Court. Respondent No.1 as per the appellant stance sublet the Platform of the shops in dispute to Muhammad Ashraf, Muhammad Ramazan, and Muhammad Jan, sons of Muhammad Hussain, on a monthly rent of Rs.7,000/-and the laters further sublet the same against a monthly rent of Rs.10,000/- to Abdul Baseer, Abdul Latif and Muhammad Ramzan sons of Abdul Karim, which too, without owner's permission and consent. Sub-tenants also failed to tender rent the frontal seat/platform of the shops in dispute to the appellant @ Rs.10,000/- per month.
The appellant is unemployed and wanted to start his business in the said rented shops, situated in a commercial area; in this context, he approached and appraised the respondents for vacant possession of the shops in dispute, besides payment of outstanding rent, followed by a legal notice but with no response. Hence, this eviction application.
3. On notice, the respondents filed their separate rejoinders wherein they raised various legal objections regarding the application's maintainability and contested the same on merits.
4. Out of the pleadings of the parties, the following issues were framed. i. Whether the instant application is barred under section 14 owning to the dismissal of prior application 10/2011? ii. Whether the mutation dated 09.06.2017 in favour of the applicant has been effected to create just a baseless/mala fide ground of eviction? iii. Whether the respondents Nos.2 and 3 have actually sublet the front-seat/tarra, that too wit/lout the consent of landlord/owner? iv. Whether there is any default of payment of rent since 09.06.2017 till disposal of rent in C.C.D.
Account? v. Whether there is a non joinder of necessary parties. i.e. subletters? vi. Whether the plaintiff requires the shop-in-question for bona fide use? vii. Whether the plaintiff is entitled to the relief claimed for
5. After framing issues, the parties exhausted their respective sides and recorded their statements on oath.
6. After hearing the parties, the learned Rent Controller dismissed the application on 20th October, 2020. Hence, this appeal.
7. Relationship of landlord and tenant between the parties is not a matter of dispute; in the previous round of litigation, the first application was disposed of based on compromise, and the second application was dismissed by the learned Rent Controller mainly on the ground that the shops in dispute were required for personal bona fide use of the appellant, previous owner's brother, did not come in the definition of "child". During the pendency of the appeal (F.A.O. No.55/2014), the previous owner withdrew with the permission to file afresh, if needed, vide order dated 26th April 2017 passed by this Court.
Since the sub-tenants (occupiers) of the front seat/platform ) denied the previous landlords ownership, they were not arrayed in the eviction application, and a separate civil suit was filed against them is pending before the learned Civil Judge.
8. Coming back to the merits of the case in the light of the evidence available on the record, which shows that the appellant, through oral and documentary evidence, proved that he is the legal and lawful recorded owner of the shops in dispute, required for his personal bona fide use and occupation, moreover he has no other shop in the same vicinity.
On the other hand, the respondents failed to disprove the appellant's claim that either the shops in dispute are not required for personal bona fide use, or he is in occupation of some other shop or premises in the said area, or he is doing some job or business. Still, the learned Rent Controller failed to appreciate the oral and un-rebutted documentary evidence in its true perspective and reached a wrong conclusion, which caused miscarriage of justice.
9. As mentioned above, the eviction application was filed mainly on two grounds, i.e. (i) failure in payment of rent, (ii) personal bona fide use for appellant.
The relationship between the parties as landlord and tenant is not disputed. Section 13(2A)(i) of the Ordinance deals the matters on default, which reads as under: "13. Eviction of tenant. (1)...
(2A) A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied that-
(i) the tenant has not paid or tendered rent due by him in respect of the building or rented land, within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord, or in the absence of any such agreement, within sixty days from the period for which rent is payable."
10. Statement of the landlord on oath, if consistent with the application for ejectment and not shaken in cross-examination or disproved in rebuttal, is sufficient to prove that requirement of the landlord was bona fide. The appellant himself appeared before the learned rent controller, who was subjected to cross-examination, the person who is most relevant to prove the personal requirement is a landlord himself, and none else can effectively testify to this fact except him; therefore, it is a statement of immense importance and significance, which as stated above, has gone unchallenged in cross-examination on the particulars, given by the appellant in the examination in chief.
11. The next point is that the principle of res-judicata did not bar the subsequent application; because the first application was disposed of based on compromise while the second application was withdrawn on technical grounds, but the learned Rent controller did not understand this important aspect of the case which caused miscarriage of justice.
12. Section 14 applies to a case that the Rent Controller may have decided; if the landlord withdrew the previous application based on some private settlement with the tenant, then it would be an arrangement between the landlord and the tenant and not a "decision" of the Rent Controller.
Because a private settlement made earlier cannot constitute an eternal defect in the landlord to debar him forever to get the shop for his personal use.
Section 14 provides a former decision on merits which is not the appellant's case.
13. After having stepped into the shoes of the previous landlord, the appellant served a notice under section 13-A of the Ordinance, proved through evidence but even then, the rent was not remitted to the appellant. Thus, the respondents committed willful default in view of section 13-A, which provides that a tenant be informed in case of transfer of ownership. Accordingly, where the ownership of a building in possession of a tenant of rented land has been transferred by way of sale, gift, inheritance or in any other manner, whatsoever, from one person to another, the new owner shall send an intimation of such transfer in writing by registered post to the tenant of such building or rented land; the appellant also fulfilled that legal requirement in letter and spirit.
Moreover, nothing is available on the record to show that the landlord did not need the shops in dispute for himself when he filed the present ejectment application.
There is a difference between section 13(2) and section 13(6) of the Ordinance. In the former case, Rent Controller has been given discre tion not to grant ejectment application on the ground of non- payment of rent if the facts of the case so warrant. The words the Controller may make an order directing the tenant to put the landlord in possession of the building have been used in section 13(2) of the Ordinance, whereas, to section 13(6), it has been provided that if a tenant makes default of rent order passed under the above subsection, his defence shall be struck off. The landlord be put into possession of the property. The use of the word "shall" in section 13(6) of the Ordinance is in contrast to the word "may" used in subsection (2) of section 13 of the Ordinance.
Therefore, Rent Controller has discretion in the matter falling under section 13(2) of the Ordinance.
The issue of willful default by 'the respondents and the front seat at exorbitant monthly rent to the sub-tenants and the rest (arrayed as defendants in the civil suit) has been established. Hence, it is resolved in favour of the appellant and against the respondents.
It is relevant to observe that the tenants have inducted the sub-tenants without the landlord's consent. Since unauthorized persons bestowed them, thus they have no greater rights than the main tenants.
15. The primary and essential requirement of the law for evictions of a tenant is bona fide need by the landlord, which stands discharged the moment he appears in the witness box and makes such statement on oath or in the form of an affidavit in evidence as prescribed by law if it remained un- shattered in cross-examination and un-rebutted in the evidence adduced by the opposite party.
The landlord even owns several, shops; the question of which premises would be appropriate for him is a matter to be exclusively left to him to decide his choice; the tenant has no right to challenge such right. The landlord has a right to occupy his property and cannot be deprived of such right only because once it was rented out.
16. The judgment and decree rendered by the Rent Controller is against the relevant provisions of the law, based on non-reading and misreading of the evidence. Therefore, it is not sustainable and liable to be reversed.
17. Because of the above, the appellant's appeal is allowed. Accordingly, the learned Rent controller's impugned judgment and decree dated 20th October 2020 is set aside. The respondents are directed to hand over the vacant possession of the shops in dispute along with the front seat to the appellant within three months. Decree sheet he drawn separately.