1. ' This appeal is directed against order dated 30-11-1989 passed by Civil Judge I-cum-Rent Controller, Quetta in eviction application No,67 of 1986.
2. Facts briefly stated are that respondents on 16-7-1986 filed an application under section 13 of `Balochistan Urban Rent Restriction, Ordinance VI of 1959' (hereinafter referred as"The Ordinance", seeking eviction of appellant from Shop No,2-10/31, Fatima Jia,lah Road, Quetta on the ground of default in payment of rent with effect from 1-3-1985 and personal bona fide requirement of demised premises for Nasrullah Khan (appellant No,2). This application was vehemently resisted by appellant. Detailed written statement repudiating the claim for eviction was filed on 13-9-1986. It was pleaded that appellants Nos.2 and 3 have been unnecessarily impleaded because admittedly lease deed was executed between the appellant and respondent No,1. Keeping in view pleadings of parties, learned trial Court framed following four issues on 4-10-1986:-
(1) Whether no notice under section 13-A of Ordinance VI of 1959 was served upon the respondent, if so to what effect?
(2) Whether the respondent has committed default in payment of rent to the applicants from 1-3- 1985 and onwards?
(3) Whether the stop in question is required by the applicant No,2 bona fide for his persona use and occupation?
(4) Relief.
2. ' Record reveals that respondents/landlords examined A.W.1 Shah Jehan and A.W.11 Muhammad Farooq besides respondent No,2 in support of their claim. Whereas appellant in rebuttal adduced two witnesses namely (i) Syed Sharafuddin and (ii) Syed Mahboob Shah besides his own statement. Learned Civil Judge I-cum-Controller, Quetta considering the evidence brought on record by the parties, granted eviction application of respondents only on the ground of personal bona fide requirement vide judgment, dated 30-11-1989 thereby directing the appellant to hand over vacant possession of shop in dispute by 6th January, 1990. Feeling aggrieved from aforesaid decision, present appeal was filed on 17-12-1989. During pendency of appeal on 11-4-1990 appellant also submitted an application under section 15(6) of 'The Ordinance' praying for bringing on record two lease agreements, dated 28-3-1979 and 16-2-1986 otherwise relied upon by trial Court in the impugned judgment. The application was opposed on behalf of respondents. Evidently execution of said lease deeds is not disputed, therefore, same can be entertained even at the appellate stage.
3. ' Mr. W.N. Kohli, learned counsel for appellant vehemently urged that lease agreement, 16-1-1984 was admittedly executed between appellant and respondent No,1 (Amar ullah Khan) therefore, no relationship of landlord existed between respondents Nos. 2 and 3 and the appellant. He thus emphasised that not only eviction application was incompetent, but personal need of the premises for bona fide use of brother (Appellant No,2 Nasrullah Khan) was not recognized under the law. To supplement his submissions reliance was placed on the observations in following two cases:--
(i) Adamali Hassanali v. Mst. Rubab Bai PLD 1967 Kar.
4. 437.
(ii) Mumtaz Humayun v. Major Habibur Rehman PLD 1969 Lah.
886. Whereas on the other hand Mr. Muhammad Moquim Ansari, learned counsel for respondents strenuously contended, that late Gul Muhammad Khan, predecessor-in-title of respondents factually was owner and landlord of the demised premises as indicated from lease agreement dated 20-3-1979. Therefore, after his death, respondents automatically became owners/landlord of the premises. Learned counsel explained that execution of subsequent lease agreement by one of the co-owners cannot deprive the other co-owners of their legal right or disturb their relationship created by operation of law.
5. ' I have carefully gone through available record and considered the arguments advanced by learned counsel for parties. Basic question which arises for determination, in the instant case would be whether appellant No,2 is also deemed to be landlord of the premises in dispute or merely brother of landlord; and whether demised premises is reasonably and in good faith required for the use and occupation of respondent No,2 (Nasrullah), and relief claimed could be granted to him by the Controller. It is an admitted feature that during lifetime of deceased Gul Muhammad appellant was his tenant in the demised premises. At this stage, to appreciate legal and factual position it would be relevant to examine definitions of 'landlord' and 'tenant' as contained in 'the Ordinance'.
6. "(c) 'Landlord' means any person for the time being entitled to receive rent in respect of any building or rented land whether on his own account or on behalf or for the benefit of any other person, or as a trustee, guardian, receiver, executor or administrator for any other person, and includes a tenant who sublets any building or rented land in the manner hereinafter authorised and every person from time to time deriving the title under a landlord."
(i) `tenant' means any person by whom or on whose account rent is payable for a building or rented and and includes (a) a tenant continuing in possession after the termination of the tenancy in his favour, and (b) the wife and children of a deceased tenant, but does not include a person placed in occupation of a building or rented land by its tenant, unless with the consent in writing of the landlord or a person to whom the collection of rent or fees in a public market, cart-stand, or slaughter house or rents for shops has been farmed out or leased by a municipal, town or notified area committee."
7. ' Now it may be seen that lease agreement dated 20-9-1979 was executed between appellant and late Gul Muhammad Khan predecessor-in-title of respondents. Therefore, after his death obviously all the respondents became entitled to receive rent in respect of rented premises from the appellant. No doubt the lease deed dated 16-2-1984 was executed only by respondent No,1, nevertheless all the respondents being successors-in-interest of deceased Gul Muhammad were entitled to receive rent from appellant. Therefore, mere execution of deed by one of the co-owners would not by itself deprive remaining co-owners of their legal right which accrued, through operation of law. From the background of circumstances and peculiar facts of this case, execution of subsequent lease deed by respondent No,1, was merely reaffirmation appellant's liability to pay rent, to owners/landlords of demised premises. The recovery of rent would necessarily be deemed for the benefit of all the owners including appellant No,2. Contention that appellant No,2 is stranger and does not enjoy status of being landlord in respect of demised premises is rather hypertechnical and imaginative than realistic. Since respondent No,2 is also landlord within the definition, 2(c) of 'the Ordinance' therefore, in my opinion it would not be proper to describe respondent No,2 (Nasrullah Khan) to be stranger or merely brother of landlord. Thus, for all practical purposes, the eviction application instituted by respondents was undoubtedly maintainable, and it could be perused for the personal use of any of the respondents. Accordingly aforequoted cases relied upon by learned counsel for appellant are not applicable to the facts of present case. In this context it may further be seen that section 13A contemplates only intimation regarding transfer of ownership by way of sale gift, inheritance or any other manner. Lease deed dated 16-2-1984 clearly communicates intimation regarding death of landlord/owner by describing father of respondent No,1 as 'late Haji Gul Muhammad Khan'. Even otherwise, non- service of notice under section 13-A would be relevant for affording protection to tenant merely for defending default in the payment of rent. Evidently said provision has no significance as regards claim of landlord for ejectment of tenant on the ground of personal use.
8. ' Now reverting to the merits, it may be seen that A.W. Shah Jehan and A.W. Muhammad Farooq have categorically stated that shop in dispute is required for respondent No,2 (Nasrullah) who is jobless these days. It has come on record that previously respondent No,2 was working as Election Officer, but had resigned towards year 1978 and presently was not doing any thing. Respondent Nasrullah Khan in his statement has explained his bona fide personal need. He deposed true that after the death of Gul Muhammad Khan predecessor-in-title of respondent No,1 started recovering the rent from appellant, for the benefit of all the heirs. Respondent No,2 during cross-examination asserted and other implements in the demised premises. On the other hand Syed Sharfuddin and Syed Mahboob Shah witnesses of appellant stated that initially shop was obtained by appellant from Noor Muhammad after paying huge amount of Pagrhi. They though admitted that late Gul Muhammad Khan being owner of property used to recover rent from appellant, during his lifetime, yet explained that after his death only respondent No,1 was collecting the rent.
9. ' According to them respondent No,2 (Nasrullah Khan) had no concern with the shop in dispute. It was pointed out by these witnesses that adjoining shops were given by respondents on higher rent to other tenants. Appellant in his statement also admitted that he used to pay rent of the demised premises to Gul Muhammad Khan (predecessor-in-title of respondents). However, after his death rent was recovered only by respondent No,1 who also executed lease deed dated 16-2-1984. He attempted to explain that respondents have other property at Jinnah Road besides Zamindari. He maintained that respondent No,2 was already dealing in cars, therefore, according to him shop in dispute was not required for his use. He further deposed that two Khokhas in their Musafirkhana were lying vacant with respondents. The evidence thus adduced by the parties has been thoroughly discussed and appreciated by trial Court. Fair and independent re-evaluation of whole record leads to irresistible conclusion that respondent No,2 is presently jobless and genuinely requires demised premises for setting up his own business. By comparison evidence adduced by respondents/landlords is more reliable, convincing and confidence inspiring. In my opinion appellant could not effectively dislodge bona fide requirement of respondent No,2. Obviously factum of owning other property or mere demand for enhancing monthly rental does not materially affect bona fides of landlord provided same are independently established. In this behalf reference can be made to observation in Shamsul Islam Khan v. Pakistan Tourism Development Corporation 1985 SCMR 1996. Thus, conclusions of trial Court in the impugned judgment are unexceptionable. Additionally provisions of subsection (4) of section 13, afford sufficient safeguard if premises are not occupied by landlord as claimed.
10. For the foregoing reasons, I do not find any merits in the appeal. However, keeping in view dearth of alternate accommodation and evident dislocation of appellant's business I am inclined to grant him six months time to hand over vacant possession to respondents.
11. ' With aforesaid modification in the impugned order the appeal is directed to be dismissed.
12. ' Parties are left to bear their own costs.