1. This appeal is directed against judgment dated 30-12-1993 passed by learned Civil Judge-III-cum- Controller, Quetta.
2. An eviction application under section 13 of the Balochistan Urban Rent Restriction Ordinance was filed by respondents on 6-10-1991 claiming ejectment of appellant from shops bearing Municipal Nos. 4-25/118 and 119 along with godown situated at McConghey Road, Quetta (hereinafter referred as demised premises). It was alleged that appellant is tenant in -the demised premises at monthly rental of Rs.150 who has committed default in payment of rent with effect from June, 1991. It was pleaded that demised premises was required for bona fide use, and occupation of respondent No. 4 namely Fayaz Raza Rizvi for running business of photography. Appellant resisted the claim by filing written statement on 17-3-1992. It was asserted that respondent factually wanted unreasonable enhancement of rent to the tune of Rs.600 and on refusal, proceedings for ejectment have been initiated. Learned trial Court considering the pleadings, framed following issues on 18-8- 1992 and gave the parties opportunity of leading evidence:-- (1)Whether the respondent is a troublesome tenant and has failed to tender the monthly rent to the applicant since June, 1991 and has committed wilful default?
2. (2)Whether the applicants required the shops in question for the personal bona fide use and occupation of applicant No. 4 who intends to establish the business of photography in the disputed shops?
3. (3)Relief, Record reveals that applicants have examined (A.W.i), Abdul Majid (A.W.Ii), Abdur Razzaq and attorney, respondent Tanveer Raza. Whereas appellant in rebuttal had adduced (R.W.i) Syed Muhammad Shafi (R.W.Ii) Muhammad Azam, (R.W.Iii) Syed Abdul Hayee and (R.W. Iv) Habibullah.
4. Besides appellant also got his statement recorded by giving complete facts. Learned trial Court on the appraisement of evidence decided issue regarding bona fide in favour of respondents and consequently directed appellants to hand over vacant possession of the demised premises within two months. Feeling aggrieved from said decision, present appeal was fled on 3-2-1994.
5. Syed Mumtaz Hussain Baqri, Advocate raised following contentions: (i) It was obligatory for landlords to have established their bona fides and good faith regarding demised premises, coupled with fact that he was not occupying any suitable accommodation or got vacated any commercial building within same urban area; (ii) none of the witnesses asserted bona fide requirement concerning both the shops i.e. 4-25/118 and 119 or godown, therefore,. Trial Court by misreading evidence has acted with glaring illegality by allowing ejectment of appellant from said three units of demised premises; (iii) landlords must establish their bona fides for each portion unit of demised premises which they have miserably failed to prove in present proceedings; (iv) landlord has to base claim on the strength of evidence adduced by them and not on the lacuna of other side. Reference was made to observation in case Abdul Manan and others v. Mir Nawaz Khan and others (1989 CLC 2277).
6. Whereas on the other hand Mr. Mohsin Javed, Advocate opposing the appeal argued that respondents had fully established their bona fide requirement of demised premises and there was hardly any effective rebuttal. Even if respondents owned other shops it was exclusive choice of landlord to claim premises considered most suitable for carrying business and no premium can be placed on such demand. Though enhancement was never claimed by landlords, yet same cannot constitute basis for challenging bona fide. Reference was made to reported judgments (i), PLD 1985 Supreme Court 1996 and (ii) 1990 SCM R 544. According to learned counsel impugned judgments did not suffer from any legal defect.
7. I have considered available record, case-law and arguments addressed by learned counsel for parties.
8. No doubt, when non-residential building is required by landlords for their own use or for the use of any of their children apart from bona fide and good faith, it must be shown to the satisfaction of Controller, that they have not vacated such building or rented land suitable for their need within same urban area without sufficient cause. It may be noticed that respondent landlords have mentioned this aspect in the original application but same is conspicuously missing in the evidence. However, perusal of record clearly discloses in the instant case respondents have claimed possession of two shops Nos.4-25/118 and 119 besides godown situated at McConghey Road, Quetta.
9. A.W.1 Abdul Majid deposed that respondent Fayyaz Raza Rizvi wants to start business of photography in demised preinises. Previously he was doing photography business in one shop at Fatima Jinnah Road, Quetta, but due to financial rescissions and compelling circumstances said property had to be sold, and no other shop suitable for commencing business was under his occupation.
10. A.W.2 Abdur Razzaq deposed that a shop was required by respondents Fayyaz Raza Rizvi who wants to start business of photography. Previously he had a shop at Fatima Jinnah Road, Quetta but was compelled to sell the same. The suggestion concerning enhancement of rent or availability of other premises were denied.
11. Attorney of respondents Tanveer Raza, explained that shop was required for bona fide use of Fayyaz Raza Rizvi. Previously he was working at Fatima Jinnah Road, but on account of financial difficulties said shop was sold. Suggestion about possessing other shops or intended enhancement of rent were denied. Appellant through witnesses has- attempted to show that real intention of respondents was to enhance monthly rental. However, through scrutiny of testimony given by above 3 witnesses primarily indicates that respondents Fayyaz Raza Rizvi earlier has been doing business in one shop and for restarting his business of photography apparently one shop was needed. There is nothing suggestive either in the testimony of attorney or witnesses which may convincingly substantiate bona fide requirement pertaining to second shop or godown. With whatever angle evidence of 'respondents landlords he analysed, merely requirement for one shop- depicted. Absolutely no material is brought on record to prove intention of commencing business at larger scale than before or insufficiency of one shop. Undoubtedly when demised premises consists of three units, it becomes obligatory for the landlord to prove through independent and reliable evidence, bona fide requirement concerning each unit, of demised premises. The necessity of landlord showing bona fides regarding each unit of non-residential building appears to be more essential because consequent upon such proof, established business of occupant has to be destabilized. When learned counsel for respondents was confronted with this factual aspect, no satisfactory answer was given. He however, attempted to explain that witnesses meant whole demised premises comprising of two shops and godown, which was thus needed by respondents.
12. Evidently hidden meaning or intention of witnesses cannot be equated with genuine requirements or bona fide. At the same time it would be pertinent to notice that mere demand or anxiety, for the enhancement of rent by itself does not affect bona fides regarding personal requirement of the premises by landlord. This proposition is fully settled by the dictum laid in judgments reported as
(i) PLD 1985 SC 1996 and (ii) 1990 SCM R 544. Nevertheless burden lies upon landlord to justify on the basis of tangible factors his bona Ode requirement for the whole building from where eviction is sought. It cannot merely bank on the lacunas of other side, but evidence brought on record must satisfactorily establish his claim: Thus considering accumulative effect of available material and above discussion, I am inclined to unhesitatingly, hold that bona fide concerning single shop only have been established and appellant could not offer effective rebuttal in that behalf. However, during the course of arguments, learned counsel for appellant suggested that if possession of one shop is allowed to tenant, he is ready to vacate second shop and godown. This proposal was declines by landlord. As discussed above respondent had substantiated his claim for acquiring possession of only one shop. Now appellant has himself made concession, by offering to vacate the godown as well. Accordingly on the basis of evidence and above-referred concession, respondent No. 4 would be entitled to get vacant possession of one shop and godown. The scope and powers exercisable by appellate authority under section 15 of Ordinance VI of 1959 are considerable wide. The whole case and real controversy between the parties obviously becomes open for independent determination on the basis of material brought on record. It has the jurisdiction to vary, modify, reverse or uphold the order passed by the trial Court. Therefore, in above-discussed circumstances, I am persuaded to hold that respondent-landlord would be entitled to secure possession of one shop and godown from appellant; whereas tenant shall retain one shop.
13. Now to regulate transfer of possession respondents are permitted to exercise their first choice by constructing intervening wall in the centre, and shall be entitled to obtain possession of the shop selected by them. Whereas other shop will be left over for appellant who would retain its possession as tenant of respondents. If parties do not mutually carry out above arrangement within fifteen days, or appellant offers any resistance; in such eventuality, respondents shall furnish before trial Court the details showing choice of shop required by them. After expiry of fifteen days trial Court may execute the order on arranging construction of central wall by the respondents thereby ensuring delivery of one shop in accordance with their choice and godown to them.
14. Additionally keeping in view inflation and enormous increase of rental value the appellant shall continue tendering Rupees One Hundred and Fifty for single shop left to his occupation.
15. Resultantly appeal is accepted to the extent of one shop; as regard other shop and godown subject to above-referred arrangement appeal is dismissed. Impugned judgment is modified accordingly.
16. Parties are left to bear their own costs.