1. ' This appeal under section 15 of Balochistan Urban Rent Restriction Ordinance No, VI of the 1959 has been preferred against order dated 5-6-1997 passed by the learned Civil Judge IV-cum-Rent Controller, Quetta whereby fair rent of the suit property has been determined at the rate of Rs,1,200 per month under subsections (1), (2) and (3) of section 5 of the Balochistan Urban Rent Restriction Ordinance, 1959 to be payable from the date of delivery of possession vide order dated 30-10-1996.
2. ' Briefly, stating the facts of the case are that the respondents filed an eviction application on the ground of reconstruction against the appellant in the Court of Civil Judge-IV-cum-Rent Controller, Quetta. Being eviction application No,31 of 1995 to the effect that the respondents are the owners and landlords of property bearing Khasra No,1562/2 and 1565/3 Consisting of four shops situated at Abdul Qudoos Road, Gawlmandi Road, Quetta out of which one shop was let out by the predecessor-in-interest of the respondents to the appellant in the year 1980 against the rent of Rs,140 per month and in order to develop and improve the shop in occupation of the appellant as their tenant besides the other shops intend to reconstruct the same after demolition of the existing structure in accordance with the approved building plan of the Municipal Corporation, Quetta. The appellant filed rejoinder to the eviction application with the averments that in case the respondents intend to reconstruct the suit shop after demolition of the existing structure; the appellant would vacate the shop and hand over its vacant possession to the respondents subject to the condition that the appellant to be rein ducted into the possession of the property after reconstruction. It is pertinent to note that the respondents also filed eviction applications against the other tenants of the shops pending at the relevant time before other Court. The learned counsel for the parties in the eviction proceedings submitted that the appellant will hand over vacant possession of the shop in dispute to the respondents' as soon as other shops are vacated by the tenants where after possession of the shop would be restored to the appellant after reconstruction; resultantly the eviction application was disposed of by the learned Civil Judge IV/Rent Controller, Quetta on 31-7-1995 in the terms abovementioned. In the month of October, 1995 the respondents (landlords) filed execution application seeking for eviction of the appellant from the suit shop notice whereof was given to the appellant and ultimately. On 5-12-1995 possession of the shop in question was handed over to the respondents and the execution application accordingly consigned to record on account of eviction order having been satsified. The appellant/tenant on 18-7-1996 filed application before the learned Civil Judge IV/Rent Controller, Quetta praying for the restoration of the possession of the shop to him on the ground that the respondents failed to demolish and reconstruct the rented premises, wherein also the appellant stated that concerning other shops of the respondents which were got vacated on the ground of reconstruction but were not reconstructed by the respondents, therefore, on application of such tenants Civil Judge III/Rent Controller, Quetta already directed the respondents to restore possession of the shops to such tenants. The respondents/landlords filed rejoinder to the application and contested the claim of the appellant stating therein that the shops including shops in dispute have been partly demolished and has been repaired, possession whereof cannot be restored to the appellant without determination of the rent of the shop by the Court for the reason that the tenants of similar shops located in the area/vicinity were paying rent at the rate of Rs,1,800 per month. It may be noted that on 3-11-1996 the learned Civil Judge-IV, Quetta directed that possession of the shop in question be restored to the appellant and, fixation of the rent of the shop would be operative as may be decided by the Civil Judge III/Rent Controller, Quetta pertaining to the other contiguous shops of the respondents. Thereupon, an application on 13-11- 1996 was filed by respondents before the learned Civil Judge IV/Rent Controller, Quetta requesting to recall the order already passed by the Court for the restoration of possession to the appellant as the same was passed on the statement of junior counsel who appeared before the Court on behalf of the counsel for the respondents and submitted that whatever rent be fixed by the Civil Judge-III, Quetta in the other connected matters pertaining to the shops of the respondents would be equally applicable in the instant matter, simultaneously request was made in the application that fair rent of the shop in question be determined by the Court. On 26-2-1997 the respondents/landlords submiticd application for local inspection of the rented premises which was contested through rejoinder filed by the appellant. It may be noted that the. Possession of the shop was restored to the appellant and subsequently vide order dated 29-11-1996 the learned Rent Controller recalled his previous order to the extent of the applicability of the decision of Civil Judge-III, Quetta determining the rent of the other shops would be applicable to the extent of present case and such request for recalling the order was not contested by the other side and accordingly the issue with regard to the determination of the fair rent of the shop was taken by the Court and the respondents directed to lead evidence in support of their claim. The respondents/landlords produced four witnesses in support of their case, and respondent No,1 also appeared as his own witness and gave statement. The appellant produced three witnesses in rebuttal besides his own statement.
3. ' The learned Civil Judge IV/Rent Controller, Quetta vide impugned judgment dated 5-6-1997 allowed the application of the respondents and fixed the fair rent of the premises at the rate of Rs,1,200 per month from the date of delivery of possession of the shop to the appellant i,e, 30-10- 1996.
4. ' The learned Court out of the pleadings of the parties framed the following issues and directed the parties to lead evidence:-- ' Issue No,1.---What should the fair rent of the shop in question after delivery of possession to the respondent following the reconstruction thereof at the costs of the applicants and by mutual agreement of the Parties?
5. ' Issue No,2---The relief.
6. ' I have heard the learned counsel for the parties at length in support of their respective contentions. The learned counsel for the appellant contended that the fair fixation of the rent vide impugned judgment was not permissible under section 5 of the Balochistan Urban Rent Restriction Ordinance No, VI of 1959 as it was never the case of the respondents that any addition, improvement or alteration has been carried out at the landlord's expense and at the request of the tenant/appellant. According to the learned counsel possession of the shop was handed over to the respondents pursuant to the eviction order passed by the learned Rent Controller but the respondents did not reconstruct the shop and ultimately possession was restored to the appellant through process of the Court and as such the determination and fixation of the fair rent by the Rent Controller was illegal and without jurisdiction. In such view of the matter the learned counsel contended that the evidence led by the landlords for fair fixation of the rent on the ground that similar shops in the vicinity have been let out at the rate of Rs,1,800 to 2,200 per month and the evidence led in rebuttal by the appellant is inconsequential.
7. ' Controverting the above contentions put forth on behalf of the appellant; the learned counsel for the respondents contended that since the shop in question after demolition has been reconstructed, therefore, appropriately the impugned order has been passed by the learned Civil Judge-III/Rent Controller, Quetta determining the fair fixation of rent on the overall assessment of the evidence brought on record by the parties; which is not open to any interference by this Court.
8. ' I have considered the respective contentions of the parties in the light of the provisions of law and have also gone through the record of the case carefully.
9. ' It is an admitted position on record that the possession of the shop in question was handed over to the respondents pursuant to the eviction order passed by the learned Rent Controller on 31-7- 1995 and vacant possession of the shop was delivered to the respondents through the process of the Court on 5-12-1995 and thereafter on 18-7-1996 the appellant filed application for restoration of possession to him of the shop in question, on the ground that the respondents failed to demolish and reconstruct the rented premises to which rejoinder was filed by the landlords contending therein that the shops including the shop in question were partly demolished and has been repaired but contested the relief sought for the restoration of possession on the ground that the fair rent of the rented premises be determined on the ground that the similar shops located in the area/vicinity have been let out at the rate of Rs,1,800 per month. It appears from the record that on 30th of October, 1996 possession was restored to the appellant pursuant to the order of the Court and thereafter, application was also submitted by the respondents for fair fixation of the fair rent.
10. Besides application was also submitted on 26-2-1997 by the respondents for appointment of Local Commissioner to inspect the shop in question and this application was dismissed by the learned Rent Controller on 6-3-1997 on the ground that evidence led by the parties is sufficient to dispose of the question of determination of fair rent. Apart from the request made in the rejoinder filed by the respondents to the application for the restoration of the possession of the shop to the appellant and for fair fixation of the rent, similar request was made in the application filed by the respondents on 13-11-1996 and consequent upon recalling the order about the disposal of the issue with regard to the fixation of the fair rent would be governed by the decision that may be arrived at by the Civil Judge-III/Rent Controller, Quetta in the pending matters on the same question pertaining to the contiguous shops of the respondents; the learned Rent Controller framed the issue as abovementioned and called upon the respondents/landlords to produce their evidence where after the appellant produced his evidence besides his own statement.
11. The learned Rent Controller has rightly come to the conclusion that the case of the respondents/landlords was not covered under section 4 of the Balochistan Urban Rent Restriction Ordinance No, VI of 1959.
12. ' Rent Controller is competent to determine fair rent of a non-residential building or rented land on increased rate in a case where some addition, improvement or alteration of -a non-residential building or rented land has been carried out at the landlord's, expense and at the request of the tenant irrespective of the fact that the fair rent of such building or rented has been determined by Controller under section 4 of the *Ordinance or rent of such building or rented land has, been determined by an agreement between landlord and tenant and period of three years has not be elapsed from the date fixed by the Controller under subsection (3) of section 4 or from the date of such agreement as the case may be.
13. ' In a case where no addition, improvement or alteration of a nonresidential. Building or a rented land has been carried out at the landlord's expense and at the request of the tenant; the determination of fair rent of such building or rented land within the meaning of subsections (1) and
(2) of section 5 of Balochistan Urban Rent Restriction Ordinance No, VI of 1959 would not be permissible for further increase of fair rent.
14. The respondents have not admittedly come to the Court for fixation of the fair rent of the rented shop within the meaning of section 4 of Ordinance and have claimed that the rent at the rate of Rs,1,800 per month be determined being prevalent in the vicinity of the similar shop and have led evidence only on such point, whereas under section 4 of the Ordinance fair fixation of rent can be determined by the Controller subject to the satisfaction of the conditions laid down in subsection
(2) of section 4 of the Ordinance provided that such determination of the fair rent would not exceed more than 25% of the rent already being paid by the tenant. Since the evidence led by the respondents fell short of the requirements of section 4 of the Ordinance, therefore, fair determination of rent under section 4 was neither called for nor as determined by the Controller.
15. The landlords have led no evidence that the possession of the shop in question was restored to the appellant/tenant after reconstruction of the shop which could have entitled them to claim for the fixation of the rent of the premises in view of the criteria provided under section 13(5-B) of Balochistan Urban Rent Restriction Ordinance No, VI of 1959.
16. ' The case-law cited by the learned counsel for the appellant i,e, 1990 M LD 1711: 1986 CLC 1570 and PLD 1983 Quetta 36 are not relevant to the legal proposition involved in the instant matter as discussed above.
17. For the reasons abovementioned, the impugned judgment dated 5-6-1997 passed by the learned Civil Judge-IV, Quetta being not sustainable in law is hereby set aside, and the application is dismissed; consequently the appeal is allowed with no order as to costs.