' This appeal is directed against order dated 6-11-1995, passed by learned Civil Judge IVth whereby appellant has been directed to hand over vacant possession of Shop No,1, Fazal Market Alamdar Road, Quetta.
2. Relevant facts briefly mentioned are that respondents on 21-6-1995 instituted eviction proceedings under section 13 of Balochistan Urban Rent Restriction Ordinance, 1959 against appellant regarding shop No,1, Fazal Market Alamdar Road, Quetta. The respondents alongwith three brothers namely Naseebullah, Ajab Khan and Shandad Khan claimed to be owners and landlords of said premises. It is alleged that two shops of Fazal Market bearing Nos.1 and 9 are located on Main Alamdar Road, whereas remaining six shops (out of which two contiguous premises were converted into a single shop) are located inside on the rear portion. According to averments in the application shop was let out to appellant at monthly rental of Rs,200 (Rupees Two Hundred). It is asserted that respondent Mehrullah was occupying Shop No,9 and running business of old second hand uniforms, whereas Shop No,1, Fazal Market obtained on lease by appellant from previous owner, was required in good faith for bona fide personal use of respondent Adbullah. In the application it was averred that four shops in Fazal Market toward rear portion were lying vacant, therefore, alternate accommodation amongst said shops could be provided to appellant on handing over vacant possession of shop-in-dispute.
3. Appellant vehemently refuted the claim of respondent/landlord and objected to maintainability on the ground of locus standi and jurisdiction of Rent Controller for deciding the matter. It was also pleaded that huge amount by way, of 'Pugree' was paid by appellant for receiving possession of shop, therefore respondents have merely right of receiving rent and lease of premises is deemed for perpetuity. On merits it was asserted that construction work was carried out by contractor Bashir Ahmad, on procuring advances in the shape of 'Pagree' besides lease agreement contains specific stipulation for transferring tenancy right subject to payment of Rs,5,000, therefore, eviction proceedings merited rejection. However, portion of written statement from para. 1 and contents of para.2 which reflects stand of appellant/tenant is reproduced below:-- "1.................................................................
' An agreement dated 23-1-1986 was executed between Haji Muhammad Bashir Ahmad Contractor and Fazal Illahi owner of the land that tenant Muhammad Hanif would be at liberty to transfer his tenancy right of the shop in question to any one and Fazal-e-Illahi would be entitled to receive Rs,3,000 on such transfer of tenancy. The said Muhammad Hanif transferred his tenancy right to respondent, after receiving Rs,1,50,000 from the respondent. The respondent also paid Rs,3,000 to said Fazal-e-Illahi and in this behalf agreement dated 11-8-1987 was executed between the respondent and Fazal-e-Illahi and respondent stepped into the shoes of said Muhammad Hanif previous tenant. According to the terms of agreement dated 11-8-1987 the respondent would be at liberty to transfer his right of tenancy to any other person and Fazal-e-Illahi after receiving Rs,5,000 transfer the rights of tenancy to other person.
2. That the contents of para. No,2 are not admitted as stated the respondent is occupying the Shop No,1 which is located toward road side and respondent occupying the same as tenant since the time of previous landlord Fazal-e-Illahi. The 'Pugree' of the shop inside market is not more than twenty thousand because they are not suitable for any business except to be used as store and same not suitable for respondent's business. The respondent took the shop on paying Rs,1,50,000 Pugree only in order that the respondent could run his business peacefully without any fear of ejectment, and respondent established his business with hard work. In view of terms and conditions Pugree and prevailing custom the applicants could not seek ejectment of respondent from the shop in question."
' Learned trial Court out of pleadings framed following issues on 3rd August, 1992 and gave parties opportunity of leading evidence:--
(i) Whether the application is hit by preliminary objections 'B' and 'C' of the written statement?
(ii) Whether the applicants required the disputed shop for their own personal use and occupation?
(iii) Whether the applicant is entitled to the relief claimed for?
(iv) Relief.
' Record reveals that respondents/landlords for substantiating their bona fide requirement produced A.W. 1 Syed Alam Khan, A.W.2 Muhammad Hashim and A.W.3 Muhammad Wakeel.
Besides both respondents also got recorded their respective statements for supporting their stand.
Whereas appellant in rebuttal has examined eight witnesses namely R.W.1, Haji Muhammad Hand R.W.2, Haji Jumma Gul, R.W.3, Ziauddin, R.W.4, Bashir Ahmad, R.W.5, Fazal Illahi, R.W.6, Ghulam Muhammad R.W.7, Adbul Aziz and R.W.8 Haji Abdul Karim. Appellant gave his statement explaining details for opposing claim of respondents. Learned trial Court considering the evidence brought on record allowed eviction application by means of judgment dated 6-11-1995 and directed appellant to hand over vacant possession of shop in dispute within four (4) months. The above decision has been assailed through present appeal.
' During pendency of appeal on 5th May, 1996 respondents made specific offer showing preparedness to pay sum of Rs,2,00,000 (Rupees two lacs) to appellant for handing over vacant possession. Contents of said application are reproduced below:-- "The landlord/respondents respectfully submit that landlord is ready to pay Rs,two lacs (Rs,2,00,000) to the tenant as an amount (Pugree) received by previous landlord/owner subject to delivering the vacant possession of the shop in question to the applicant/landlord."
' Notice of said application was given to appellant who on 15-5-1996 declined to accept above offer and instead proposed to purchase the shop for a sum of rupees three lacs (Rs,3,00,000). The reply in extenso is reproduced below for ready reference:--- "Reply to offer dated 5-5-1996 of respondents The applicant submits his reply as under:--
(1) That the offer of the respondent is not accepted to the appellant for the reasons that appellant advanced/sold goods on loan to different parties the moment the respondent took the possession of the shop the appellant could not recover the said amount which amounted more than Rs,8 lacs.
The appellant would not be able to continue this business. The appellant is ready to give him more than triple purchase price of the shop in question. The appellant is ready to pay him Rs,3 lacs price of the shop in question.
' It is accordingly prayed."
' Arguments were heard at length. M/s. M. Zafar and Khushnood Ahmad, Advocates strenuously urged that despite specific objection pertaining to maintainability of eviction proceedings trial Court failed to strike necessary issues, seriously prejudicing stand of appellant. They emphatically canvassed, that Rent Controller had failed to appreciate legal and factual aspects in true perspective. Agreement of tenancy specifically provided authority of tenant to transfer tenancy rights, subject to conditions specified therein which discloses lease in perpetuity, therefore, respondent could not seek ejectment on the ground of personal requirement. To supplement reliance was placed on the observations in case 1986 CLC 1493.
' Mr. Muhammad Hashim Kakar learned counsel for respondents vehemently opposing the appeal contended that relationship was. Admitted by the appellant, therefore, irrespective of any agreement Rent Controller enjoyed plenary jurisdiction for deciding controversy falling within the ambit of Balochistan Rent Restriction Ordinance. Reference was made to observations contained in 1993 SCMR page 200. With regard to question of 'Pugree' learned counsel greatly stressed that said concept was contrary to public policy. According to him mutual arrangement contravening law cannot supersede or affect statutory rights of landlords or obligations of tenant. Submissions were supported by making reference to the observation in judgments reported as (i) 1986 SCMR 1981 and (ii) 1992 MLD 1225. Learned counsel further canvassed that landlord had choice for considering suitability of any premises for personal bona fide which cannot be hampered except for justifiable reasons. He stressed that respondents have exhibited genuineness of their demand by making offer for alternate accommodation with same building or payment of compensation to the tune of Rs,2,00,000 (rupees two lacs) much beyond the amount alleged as "Pugree". Relinance was placed on the following cases.
(i) 1986 SCMR 650 (Muhammad Latif v. Hakim Nisar Ahmad and others);
(ii) 1986 SCMR 1981 (Sardar Khan v. Riaz Ahmad etc.) and (iii) Haroon Kassam and others v. Azam Suleman Madha PLD 1990 SC 394 According to learned counsel, claim of bona fide requirement was duly established through evidence as rightly held by the trial Court.
' I have considered arguments advanced by learned counsel for parties in the light of case-law and evidence on record.
' Firstly it may be seen that main objection to the maintainability of eviction application is based upon advance payment made by way of ' Pugree' through contractor Bashir Ahmad while commencing construction work of the building. It was greatly emphasized that tenancy agreement executed between the parties, subject to payment of Pugree expressly delegating right of sub- letting constituted "lease-in-perpetuity", thus barring jurisdiction of Controller for entertaining proceedings on the ground of personal bona fide requirement. Undoubtedly record indicates payment of advance amount by way of Pugree by appellant to owner of building through Contractor, therefore, it needs determination whether prevalent Riwaj of Pugree even if comprising of huge amount, affects legal right concerning relationship of landlord and tenant or causes bar of Rent Controller's jurisdiction. It is quite apparent that any payment providing undue loss or advantage without lawful consideration is void and of no legal effect. Besides payment of such amount without consideration is clearly repugnant to public policy. Thus payments by tenant styled as 'Pugree' cannot be legally recognized or validated. Obviously relations between landlord and tenant are regulated by Rent Restriction Ordinance, however, if terms of contract contravene provision of law, same must give way being void and inoperative. Therefore, stand of appellant that payment of Pugree creates tenancy in perpetuity is neither tenable nor has force of law.
Honourable Supreme Court has also repelled stand of tenants, which affect statutory rights. For convenience relevant observation in case Sheikh Muhammad Yousuf v. District Judge, Rawalpindi 1987 SCMR 307 are reproduced below:-- "We have carefully considered these arguments of the learned counsel for the petitioner-tenant.
The Courts below had held that the respondent-landlord was successful in establishing a bona fide personal need of the said shop and, therefore, while exercising Constitutional Jurisdiction the learned Single Judge of the Lahore High Court, Rawalpindi Bench was justified in observing that since that issue had been correctly and properly resolved it being a question of fact was not reviewable in the exercise of Constitutional jurisdiction. According to the lease agreement the shop had been let out to the tenant-petitioner for a fixed period of ten years with a right of re-entry reserved by the respondent-landlord, but it is not mentioned in the lease deed that the respondent-landlord had received Rs,11,000 as Pugree from the petitioner-tenant, although it is so stated by him in its statement before the Rent Controller. However, that being mutual arrangement between the parties, would not debar the respondent-landlord from instituting eviction proceedings on the ground of bona fide personal need."
' Similarly it was held in case M/s. M. Qassim v. Sharbat Khan 1992 MLD page 1225 that payment of excess amount by way of Pugree at the time of leasing out premises to the tenant does not debar landlord from seeking ejectment on the ground of personal bona fide requirement. Evidently relationship of landlord and tenant has not been disputed in the pleadings of parties. The eviction application is being resisted mainly on the basis of Pugree and jurisdiction of Rent Controller to entertain the same. Needless to say that relationship having been admitted mere fact of extra payment of amount or providing certain facility to either side while leading out the premises does not affect statutory jurisdiction of Rent Controller. In this behalf observation in case of M.K.
Muhammmad v Muhammad Abu Bakar 1993 SCMR 200 pages 205-206 are sufficiently beneficial relevant portion is reproduced below:-- "8. In our view, the above contention of Mr. S. Ishtiaq Ali is devoid of any force. The mere fact that the appellants had paid above sum of Rs,17,000 in addition to rent would not take away the jurisdiction of the Rent Controller in a case which the relationship of landlord and tenant is not denied or it is proved that the occupant of the'premises pay rent to the owner of the premises as a consideration for using the premises. Section 105 of the Transfer of Property Act does not alter the above legal position. It defines what is a lease.' It has nothing to do with the question, whether ejectment proceeding is to be filed before the Rent Controller or in a Civil Court. The above rent case was filed in 1986 when Sindh Rented Premises Ordinance hereinafter referred to as the Ordinance, was in force. Section 3 of the Ordinance provides that notwithstanding anything contained in any law for the time being in force, all premises other than those owned or requisitioned under any law, by or on behalf of the Federal Government or Provincial Government, situated within an urban area, shall be subject to the provisions of this Ordinance". The terms 'landlord' and 'tenant' have been defined in clauses (f) and (j) of section 2 of the Ordinance, which read as follows: "(f) 'landlord' means the owner of the premises and includes a person who is for the time being authorised or entitled to receive rent in respect of such premises;
(j) 'tenant' means any person who undertakes or is bound to pay rent as consideration for the possession or occupation of any premises by him or by any other person on his behalf and includes---
(i) any person who continues to be in possession or occupation of the premises after the termination of his tenancy;
(ii) heirs of the tenant in possession or occupantion of the premises after the death of the tenant; ' Admittedly, the respondent falls within the definition of the 'landlord' as given in above clause (f) as he was entitled to receive rent from the appellants and was in fact receiving the same at the time of filing of ejectment case as averred even by the appellants in their written statement.
Whereas, the appellants fall within the definition of 'tenant' as given in above-quoted clause (j) of section 2 of the Ordinance, as admittedly they had been paying rent as a consideration for possession or occupation of the premises. In this view of the matter, the above contention is not sustainable."
8. Learned counsel also challenged validity of eviction proceedings contending that transfer of property in favour of respondents has been effected through mutation entries, as such they have no locus standi to institute present proceedings. In my opinion conclusions in case Dilber v.
Mehmood Hussain PLD 1986 Quetta 198 afford complete answer to said objection and above- referred stand is not tenable.
9. Additionally appellant never objected to framing of issues nor demanded striking off fresh issues, during pendency of proceedings before trial Court. The parties were fully aware about real controversy and had led evidence on all aspects. On reconsideration of pleadings and respective claims of parties. I am satisfied that objection raised on behalf of appellants is apparently misconceived.
10. Lastly examining question of bona fide, personal requirement, it may be seen that respondents have produced sufficiently convincing evidence to establish their claim and genuine need of respondent Adbullah for commencing new business. Rebuttal mainly relates to payment of "Pugree" to previous owner and availability of other vacant shops with landlord. These aspects even otherwise have not been disputed. Needless to say that landlord has exclusive choice regarding suitability of building owned by him for carrying business or bringing the same to his use. Therefore, selection of frontal shop for carrying personal business does not reflect mala fide and could not be challenged specially when landlord from very inception has offered a shop in the rear portion of same building to appellant. There is plethora of case-law supporting this proposition. However, observation in the following reported judgments can be referred with advantage. (i) Muhammad Latif v. Hakim Nisar Ahmad 1986 SCMR 650, (ii) Sardar Khan v. Riaz Ahmad 1986 SCMR 1981 and (iii)
Haroon Qassim v. Azam Suleman Mudha PLD 1990 SC 39. Evidently good faith and bona fide requirement of suit premises is further substantiated from conduct of respondents whereby they not only offered alternate accommodation in the same building to appellant but have also categorically expressed preparedness to pay compensation for higher amount than alleged '
Pugree'. These aspects clearly support good faith and genuineness of respondent's claim. Thus, on the reappraisal of entire evidence, coupled with offers to give alternate accommodation or pay even higher amount than 'Pugree', I feel satisfied that shop in dispute is required in good faith by respondent for personal bona fide requirement, as rightly held by the trial Court. There is absolutely no defect, legal infirmity or impropriety in the impugned judgment which may require interference.
It is not out of place to mention that law provides penalty for landlord who after obtaining the premises on the ground of personnal bona fide use does not occupy the same which obviously affords sufficient safeguard to tenant.
11. While parting, I feel inclined to observe that respondent had himself offered alternate accommodation of a shop in rear side within Fazal Market or payment of Rupees two lacs as compensation. This position was maintained by learned counsel for respondent under instruction from his client even during arguments. Therefore, appellant shall still have choice for obtaining alternate shop at the time of vacating premises in dispute or receiving rupees two lacs as compensation categorically offered by respondent. The choice can be exercised within the time allowed by trial Court Subject to above conditions, which will form part of trial Court's judgment, the appeal is dismissed. Parties are, however, left to bear their own costs.