' The appellant has filed this appeal against the order dated 15th of August, 1990 passed .By Civil Judge-II/Controller, Quetta in Eviction Application No, 56 of 1988 whereby directions have been made to appellant for handing over vacant possession of shop bearing No, 4-30/31-A (2) Arif Road, Quetta (hereinafter referred to as "Property in dispute") to the landlady/respondent.
2. Concisely stating the facts for disposal of this appeal are that respondent/landlady sought eviction of appellant from property in dispute by filing Eviction Application under section 13 of Balochistan Urban Rent Restriction Ordinance VI of 1959 on the ground of default in payment of rent with effect from July, 1986 and onward and for demolition, re-construction and for personal bona fide use and occupation.
3. The appellant resisted eviction application and filed rejoinder repudiating claim of respondent and stated that as enhanced rent was demanded by landlady which was not acceded to therefore, she stopped collecting rent from him. Similarly grounds for demolition, re-construction and personal bona fide use and occupation were denied. The Controller framed following issues:-
4. "(1) Whether the respondent has failed to pay or tender the rent to the applicant since July, 1986?
(2) Whether the applicant requires the premises in question in good faith for re-construction?
(3) Whether the applicant requires the premises in question after reconstruction for his own use and occupation?
(4) Relief."
In pursuance of aforesaid issues, the parties were allowed to adduce evidence in order to substantiate their respective contentions.
4. The landlady/respondent produced following witnesses:-
(i) A.W.1 Shaukat Hussain son of (sic) who produced the approved plan and building permit as Ex.A/1 and A/2.
(ii) A.W.2 Abdul Latif son of Haji Abdul Ghafoor, who produced Furd-eHaqiat relating to disputed property as Ex.A/3. It is pertinent to note here that this document indicates that property stand mutated in name of Abdul Hamid son of Tajuddin.
(iii) A.W:3 Muhammad Rafique Khan son of Jalaluddin.
(iv) A.W.4 Mushtaq Ahmed son of Saeed Ahmed who produced lease note dated 9th of February, 1983 as Ex.A/4 executed by appellant with Tajuddin, who was late husband of respondent.
(v) A.W. 5 Jehangir Sadiq son of M. Saddiq.
(vi) A.W. 6 Barkatullah son of Mian Allah Rakha.
(vii) A.W. 7 Nasrecn Khanam d/o Tajuddin and
(viii) A.W. 8 Mst. Fatimah widow of Tajuddin (respondent).
5. Whereas on the other hand appellant produced the following witnesses:-
(i) R.W. 1 Muhammad Yousuf son of Muhammad Usman (Attorney of appellant).
(ii) R.W. 2 Noor Ahmed son of Noor Muhammad.
(iii) R.W. 3 Abdul Ghafoor son of Abdul Shakoor.
(iv) R.W. 4 Bahadur Khan son of Muhammad Hyat.
(v) R.W. 5 Tausand Khan son of Gulistan who produced copy of PT-1 form prepared by excise department relating to House No,4-36/14 which is presently in occupation of respondent.
6. The appellant during proceedings moved an application praying that disputed property and the house already in possession of respondent may be inspected, as plea of respondent for occupying the property in dispute after reconstruction is based on mala fides because she is already in possession of a house which is bigger than the property in dispute, in alternative it was prayed that Local Commissioner may be appointed to submit his report after inspecting the site. This application was contested by respondent, however, learned trial Court vide order dated 26th of December, 1989 declined to accept the prayer of appellant as mentioned above.
7. After recording of evidence and hearing the parties, learned Controller decided issue of default in negative whereas Issues Nos.2 and 3 in respect of personal bona fide use and re-construction after demolition were decided in affirmative, directing consequently the ejectment of appellant.
8. Malik Sultan Mehmood, learned counsel for appellant has urged as follows:-
(a) The respondent has lost locus standi for persuing eviction proceedings. As according to the Revenue Record, property in dispute has been mutated in the name of Abdul Hamid son of Tajuddin, this fact is indicative from Ex.A/3, as such due to change of ownership the application was liable to be dismissed.
(b) The eviction application was in fact moved by respondent for demolition and re-construction and personal bona fide use and occupation for her benefits, whereas now when she had lost locus standi the eviction cannot be ordered for her benefits.
(c) On merits as well respondent has failed to prove her case as the area of house which is presently in occupation of respondent is bigger than the disputed property, where proposed building is to be constructed and this fact goes to reflect on the bona fides of respondent.
(d) Trial Court has wrongly rejected the application of appellant for inspection by means of order dated 26-12-1989, hence appellant could not prove mala fides of respondent in a proper manner.
(e) Learned Controller had misappreciated and misread evidence available on record hence requires interference by this Court.
9. Whereas on the other hand, Mr. K.N. Kohli, learned counsel for respondent has contended as follows:-
(a) It is an admitted fact that property in dispute stands mutated in name of Abdul Hamid son of Tajuddin, who is minor son of respondent therefore, being a landlady within the meaning of section 2, clause (c) of Urban Rent Restriction Ordinance VI of 1959 she had every right to persue application of ejectment against tenant.
(b) The change of ownership of property during pendency of proceedings will not have any hearing on the claim of respondent as Abdul Hamid is son of respondent and she is not in his adverse interest in any manner, therefore, there was no impediment in her way to persue eviction proceedings.
(e) No prejudice has been caused to appellant due to the order dated 26-121989, whereby application for appointment of Local Commissioner was dismissed by Controller.
(d) The Controller has properly evaluated the evidence.
10. I have heard learned counsel for both parties and record of the case has also been perused carefully.
11. This is an admitted fact that originally property in dispute was in name of late Tajuddin i,e.
Husband of respondent, who had also executed a lease deed with appellant regarding the disputed property and after his demise as per notice dated 22-6-1987 Ex.A/5 the property devolved upon his legal heirs namely Mst. Fatimah Begum, widow, Mst. Nasreen Khanam Mst. Nuzhat, Mst.
Mohidise, Mst. Nazish, Mst. Sarena daughters and Jamil Ahmad, Abdul Hamid, sons.
12. In the above notice, appellant-tenant was called upon to pay the arrears of rent. The respondent Mst. Fatimah Begum i,e. The mother of above-noted legal heirs was authorised to collect rent for herself and on behalf of others. Perhaps, due to above authorisation respondent filed eviction application No,56/1988 on 28-12-1988, against appellant praying for eviction, from the disputed shops for personal use and occupation after re-construction of building. Para. 4 of eviction application is reproduced below:- "4. That apart from this the applicant requires the said shop is bona fide good faith for personal use and occupation after the reconstruction of the premises. It is pertinent to mention here that her family is very large and her house is adjacent to the disputed shop which is insufficient for the accommodation of all the family. For the purpose of re-construction, the applicant has got a plan approved from Quetta Municipal Corporation, the building permit has been obtained and she has enough sources to reconstruct the house."
' Assertions made in above para also indicate that approved plan has been obtained by respondent in her name for demolition and re-construction.
12-A. The respondent produced Ex.R/3 i,e. Furd-e-Haqiat which reveals that disputed property is entered in name of Abdul Hamid son of Tajuddin. The counsel of respondent strenuously attempted to argue that Abdul Hamid is minor therefore, respondent had legal entitlement to move application for his benefit but this contention of learned counsel appeard to be contrary to the pleadings, because eviction application was not filed in name of Abdul Hamid through mother i,e. Respondent Mst. Fatimah Begum nor there is any assertions in the application that eviction of the disputed property is being sought for the benefit of minor. So much so, it is also not mentioned that whether property is existing in name of Abdul Hamid or not.
13. The appellant's counsel during arguments of appeal objected that permit approved plan for the proposed building has been obtained in name of Abdul Hamid. On such objection, respondent's counsel moved C.M. No,1014/90 in which it was stated that Abdul Hamid is son of respondent/landlady and is aged about 12 years and permission was sought to allow respondent for entering into the witness-box to substantiate the fact that application for eviction, has been moved on behalf of Abdul Hamid. However, this application was dismissed by this Court vide order dated 19-12-1990 as having been not pressed. It is not understandable that once an application has been moved which was a step to meet the objection raised by appellant's counsel then why the application was not pressed.
14. It is true that definition of word 'Landlord' under section 2, clause (c) of the Ordinance VI of 1959 is every vast and even a person who is collecting rent on behalf of actual owner would be a landlord. No doubt in present case on the demise of late Tajuddin with the authorization of all legal heirs of Tajuddin Mst. Fatimah Begum had attained the status of 'landlady'. But when the ownership in the record of rights has been transferred exclusively in name of Abdul Hamid her status at the best would be that of a 'Landlady', of a category who is authorised to collect rent on behalf of his son, provided she is authorised to do so in accordance with law. Respondent's case is that Abdul Hamid is minor as such, she is acting as Landlady on his behalf but to substantiate her contention there is absolutely no material available on record. Although there is nothing available on record to show that the application was moved on behalf of so-called minor but it appears that originally when the eviction application was moved, the property had devolved on the name of all legal heirs but subsequently perhaps under some settlement between the heirs of late Tajuddin, disputed property was transferred on name of Abdul Hamid.
15. It is also evident from record that at the time when application was moved no approved plan and building permit was in the name of respondent Mst. Fatimah Begum Ex.A/1 and A/2 which are building permit and approved plan respectively indicates that permission for re-construction of house was given to Abdul Hamid on 21-1-1989, whereas application for eviction was filed earlier i,e.
On 28-12-1988. Perusal of approved plan i,e. Ex.A/2 reveals that Abdul Hamid had put his signatures in the column meant for the signing of owner. In presence of these two documents conclusion can be drawn that respondent had not approached the Municipal Corporation for obtaining building permit and approved plan for re-construction of building and actually such request was made by Abdul Hamid himself and in view of fact that he has signed documents, it is prima facie clear that Abdul Hamid is not minor but is major therefore, on this score the respondent had no entitlement to move the Court for ejectment of appellant.
16. Learned counsel for respondent had relied on case reported in 1980 SCMR 21 (Muhammad Ali v. Haji Abdur Rehman and others). In this case, initially an eviction application was moved by Abdul Rahim and Abdul Ghafoor sons of Haji Abdul Rahman, who were the owner of the disputed property. However, this application was contested on the ground that there is no relationship of landlord and tenant between the parties as Abdul Rehman had rented out premises to tenant and he was also receiving rent from him. The Controller dismissed application vide order dated 4-4- 1968. Subsequently second application was moved by Haji Abdul Rehman, father of above two persons, claiming ejectment on the ground of subletting and re-construction, the approved plan was on the name of onwers i,e. Abdul Rahim and Abdul Ghafoor. The Controller dismissed this eviction application vide his order dated 31-5-1977, but finally in appeal (SA.O. No,25/1977) this Court held that in view of vast definition of word 'Landlord' Abdul Rehman who was landlord on behalf of his sons is empowered to move an application for re-construction etc. And the judgment of this Court was maintained by Hon'ble Supreme Court aforesaid judgment.
17. The facts and circumstances of above case are of no help to respondent as in the reported case, it was mentioned that eviction is being sought for purpose of re-construction for the benefit of owners namely Abdul Rahim and Abdul Ghafoor, whereas in the present case, admittedly ExA/1 and A/2 proves that plan and building permit is in the name of Abdul Hamid. It is not known whether he is minor or major as there is no evidence available on record. Secondly eviction is not being sought by the respondent for benefit of Abdul Hamid nor there is any authorization available on record allowing respondent to move eviction application for ejectment of tenant. As Abdul Hamid in pursuance of ExA/3 has become the owner therefore, he is also entitled to receive the rent either himself or through his mother therefore, if eviction for purpose of reconstruction is allowed, necessarily actual owner Abdul Hamid shall be deprived from right of recovering of rent as such under these circumstances, respondent was under legal obligation to manifestly make it clear before the Court that she has been authorised to do so and she is seeking ejectment of respondent for the benefit of Abdul Hamid.
18. Mr. Sultan Mehmood, learned counsel for appellant has relied on a case reported in PLD 1971 SC 491 (Dr. Miss 1. All Muhammad v. Muhammad Shafique). In this case initially the application was moved for eviction on the ground of use and occupation of Miss I. Ali Muhammad. During pendency of proceedings she created a trust of her property and disputed shop where she wanted to open a clinic of medicine, was also allocated to trust pool. The question came up for consideration before Hon'ble Supreme Court was that whether after creating a trust she had entitlement to seek ejectment of tenant on ground of personal use because she is no more owner of property and trust will have no benefit if property is used by landlady for her personal use and occupation. In this context Hon'ble Supreme Court has observed as under:- "The running of a second clinic in the disputed shop by the appellant in her individual capacity will benefit herself alone and will not enure to the benefit of the trust. Nor can be running of the clinic in the disputed shop be a purpose of the trust. Far from argumenting the trust to any extent, the use of the disputed shop for the appellants personal use as a clinic will rather cause harm to the trust in that the trust would be deprived of the monthly rental of Rs,150 payable by the tenant for the shop. It is conceivable that the trustee as landlord, may require the disputed shop for the use of the trust, say for setting up an office of the trust itself. In such a case the use of the shop will be the trustee-landlord's own use. Here however, the appellant in her individual capacity requires the disputed shop for her own use as a clinic and that requirement is still the basis for claiming ejectment. The trust is not in any way concerned with the running of a clinic by the appellant in her individual capacity. Accordingly, although the appellant as trustee is still the landlord the requirement of the shop for her use as a clinic cannot be said to be a requirement of the shop for the use of the trustee as a landlord."
As the shop in dispute stands transferred on the name of Abdul Hamid son of Tajuddin therefore, respondent had no locus standi to persue eviction proceedings seeking ejectment of respondent for her individual interest. In the absence of assertions that eviction is being sought for the benefit of Abdul Hamid merely for the reason that she enjoys the status of rent collector under Ordinance VI of 1959, she cannot be allowed to seek eviction of respondent because this would be against the interest of actual owner. In this contest the case law relied upon by learned counsel for respondent respectfully stating is not applicable on the facts of present case and to the contrary the authority which has been relied upon by learned counsel for appellant quoted above, is applicable in its all force on the facts and circumstances of present case.
19. Although under section 13 subsection (2) clause (vi) of Urban Rent Restriction Ordinance VI of 1959, a landlord/landlady has been authorised to seek eviction of a tenant on the ground that building is reasonably and in good faith required by landlord/landlady for re-construction or erection of a building on the site in this behalf, a sanction has also been obtained by him from Municipal Committee or Town Committee of the area and if applicant is landlord as well as owner and is receiving rent on his account he shall be entitled to make request for the ejectment of tenant but when a landlord is receiving rent on behalf or for the benefit of any other person then it becomes additional legal obligation upon him to show that he has been authorised by actual owner of property to seek ejectment of tenant for his benefits, because if a person who is merely a rent collector on behalf of another person say like Receiver, Manager or Guardian of a minor, in respect of property etc. Succeeds in getting order of eviction from Controller and re-construct the building after making investment towards expenditure of construction, this would amount to creating a heavy charge upon the property and actual owner in such circumstances shall not be in a position to enjoy the proprietary rights unless he has not discharged financial liabilities which has been incurred on the property due to new construction. This position would be more aggravated when landlord of a category of collecting the rent on behalf of others occupies the building after re-construction for his individual benefits therefore, in such state of affaris, the Controller should be careful in allowing ejectment application and he has to judicially examine whether the eviction is sought for the benefit of actual owner or not in the capacity of a landlord/landlady and whether he has been authorised to do so or not in accordance with law.
20. Where plea is raised that eviction is sought for benefit of minor then this also becomes the duty of Controller to examine the pleadings in order to find out the fact as to whether actually the ejectment is sought for minor's benefits and all legal formalities have been completed namely whether the application has been moved in name of minor through next friend and in the pleadings unequivocally, it has been mentioned that premises is required for re-construction and personal use and occupation of minor's benefits or not etc. And if such assertions are absent then the Controller normally should not order the ejectment of tenant because if ejectment is allowed, this would be against the interest of minor as well as actual owner of the property.
21. In view of above discussion, I am of the considered opinion that respondent had lost locus standi/legal entitlement to peruse eviction application therefore, on this score alone the appeal succeeds and there is no need to dilate upon the other points.
' With the result the order dated 15th of August, 1990 passed by Civil Judge-II/Controller, Quetta, is set aside and eviction application filed by respondent is dismissed with no order as to costs, ' However, there shall be no impediment in the way of landlord/landlady to move fresh application, if so advised against the appellant after completing all legal formalities as envisaged under the law.