MUNAWAR AHMED MIRZA J- This appeal is directed against order of eviction dated 30.6.1990 passed by learned Civil Judge-IV Cum-Controller, Quetta.
2. Appellant's ejectment from shop No.4-37/39 Gurdit Singh Road, has been ordered through impugned judgment in pursuance of an application filed by respondent under section 13 of 'Baluchistan Urban Rent Restriction Ordinance VI 1959' (hereinafter referred as "The Ordinance"), on the ground of personal bonujide requirement for his son Ejaz Faruq. The application was vehemently contested, asserting that respondent was himself running a provision store styled as Alfarooq Brothers in an adjacent premises No.4-37/37 (1813) Kaikabad Roadmand has got two other shops in the close-vicinity. According to appellant present proceedings were couched with mala fides, and motivated to exorbitantly enhance the monthly-rental. Trial Court on 13.2.1988 framed following issues:-
1. Whether the applicant require the shop in question in good faith for personal use and occupation of his son?
2. Relief.
It may be seen that respondent apart from himself examined 3 witnesses namely Salim Javed, Ikram Bari, and Ejaz Faruq to substantiate his bona i.e requirement of demised appellant adduced R. W.s Mohammad Sabir, Muhammad Nawaz and Sabir Ali. Learned Controller considering the evidence on record, affirmed bona i.e requirement of respondent as claimed in the eviction application and directed ejectment of appellant through judgment dated 30.6.1990; now impugned in this appeal.
Mr. Tahir Muhammad Khan learned counsel for appellant contended that evidence adduced by respondent/landlord was not sufficient to establish bona i.e requirement of demised premises for the benefit of his son. He submitted that one of the shops had been sold by landlord prior to the institution of eviction proceedings. Besides it was argued that adjoining premises were still with other tenants and their eviction was also not sought which reflected mala fide and lending support to basis desire of landlord about enhancement of rent.
On the other had, Mir Abdul Ghiyas N\ausherwani learned counsel for respondent controverting the contentions raised by other side strenuously urged that evidence was correctly evaluated by the trial Court. He maintained that respondent/landlord had convincingly established genuine requirement of his son Ejaz Faruq. According to him circumstances canvassed on behalf of appellant did not constitute alleged mala fides. It was emphatically argued that, no premium can be placed on the choice of landlord in claiming particular premises for his requirements. Learned counsel further submitted that provision of sections 13(4) of "The Ordinance" provided adequate safeguard to the tenant, from possible dishonest conduct of landlord.
I have minutely examined the case-record and considered the agreements addressed by learned counsel for parties. Evaluating the evidence it may be seen, that P.Ws Salim Javed and Ikram Bari have unequivocally deposed that P.W. Ejaz Faruq son of Appellant is jobless and needed demised premises for setting up his business. They also mentioned that respondent has small provision- store opened in the drawing room of his house. They further clarified that respondent does not have any vacant commercial premises to accommodate his aforementioned son. Their statements could not be impeached despite lengthy cross examination. P.W.3 Ejaz Faruq and respondent in their respective testimony unambiguously maintained their stand about bona i.e requirement of suit-premises. Through them it has come on the record that substantial amount was deposited in the Bank-account of Ejaz Faruq for starting provision-store in the suit-premises.
They also emphatically denied allegation concerning enhancement of rent or bad faith. Whereas statements of R.Ws Mohammad Sabir, Mohammad Nawaz and Sabir Ali, merely mention about demand for enhancement three years back, whereafter previously rent was increased. They further vaguely expressed that respondent owns other shops. Version of all these witnesses apparently does not help the appellant to effectively rebut the claim of landlord. It is pertinent to note here that R.W.1 Mohd Sabir has rather admitted genuine requirement of respondent pertaining to shop in dispute for the business of his son. Firstly absolutely no material has been produced to show that any vacant commercial premises is lying under the control of respondent. Thus uncorroborated assertions of appellant and mere, factum of owning other shops would not diffuse preponderant evidence adduced by respondent or suggest mala fide on his part. Besides it is well settled that landlord cannot be forced to select particular building for his own use. He alone has prerogative to pick suitable accommodation for catering his genuine requirement. Contrary objection of appellant is obviously misconceived. In this behalf for authority reliance may be placed on the observations in cases (i) Abdul Qudus vs. District Judge, Sialkot and others (1982 CLC-2355) (ii)
Sabz Ali and another vs. Saeeda Kliatoon and others (P.L.D.1980 Lahore-229) (iii) Malik Abdul Qudoos vs. Mst. Maryam Bibi and others (PLJ 1981 Lahore 413) (iv) Punjab Hardware and Machine Tools Ltd Karachi vs. Wazir Ali (P.L.D. 1976 Karachi-233) (v) Mulla Abdullah Bhai vs. Mst. Hussaina Bai and another (1984 CLC 3525) (vi) Mohammad Sharif vs. Nisar Ahmed and others (1988 SCM R- 1587).
Secondly appellant stressed had to indicate intentions of respondent regarding alleged enhancement. Evidently demand for increase in the monthly rental prese would not constitute bad-faith, or dishonest conduct disentitling the landlord from claiming ejectment of tenant. This view is supported by Shams-ul- Islam Khan vs. Pakistan Tourism Development Corporation Ltd (1985 SCM R, 1996) and (ii) Nasir Ahmed vs. Noor Mohammad Khan and others (1990 SCM R- 544).
4. Next, an abortive attempt was made to prove mala fides by suggesting that respondent had sold one of his shops prior to filing of eviction proceedings. It may be observed that neither evidence to that effect has been brought on record nor by any means such sale could caste reflections on the conduct of landlord. Besides appellant cannot be allowed to set up new pleas without opportunity of appropriate defence to other side, for the first time ; r appellate stage.
Additionally section 13(4) of "The Ordinance" affords adequate protection to the tenant by providing salutary check on the conduct of landlord, if ejectment is secured dishonestly by raising false plea of personal need. Reference can be made to judgments reported as (i) Mst Shamim Akhtar vs. Minhajul Abidin Khan and others (1990 SCM R-777) (ii) Dr .A.R. Khan vs. Mohammad Ishaq (1972 SCM R 437).
For the foregoing discussion Imam satisfied that trial court has properly dealt with all the aspects and there is no illegality in the impugned judgment. Appeal thus has no merits which is consequently directed to be dismissed.
However keeping in view paucity of commercial building and extreme difficulty in procuring alternate accommodation as considered in P.L.D. 1985 Karachi-698, P.L.J. 1987 Quetta-137 and N.L.R.
1983 (Civil Cases) 439 I am inclined to grant period of six months from today to had over vacant possession of the premises to respondent landlord.
Subject to above observation, appeal is dismissed. However, parlies arc left to bear their own costs.