JUDGMENT AMANULLAH KHAN YASINZAI, J. - This appeal under Section 15 of the Baluchistan Urban Rent Restriction Ordinance VI of 1959 is directed against the order, dated 31.8.1999 passed by Civil Judge-II-c/w- Rent Controller, Quetta whereby eviction of the appellant has been ordered from the shop bearing Municipal No. 1-3/1-A situated at Sooraj Ganj Bazar, Quetta (hereinafter referred to as the shop in dispute).
2. Briefly stated the facts of the case are that respondent filed an eviction application regarding the shop in dispute against the appellant on 3.5.1995 on the ground of personal requirement of his son namely Muhammad Jahangir, and default. Written statement was filed on 13.9.1995 by the appellant. The Eviction Application was contested on legal and factual grounds. Out of the pleadings following issues were framed:-
(i) Whether the respondent has failed to tender rent from September, 1994?
(ii) Whether the shop in question is required by the applicant in good faith tor personal use and occupation of his son Muhammad Jahangir who is presently jobless?
(i.e) Relief.
The following additional issues were framed later on:-
(i) Whether the applicant is not the son of Arbab Muhammad Azim Khan? And respondent got the shop from Arbab Azim who was owning the shop?
(ii) Whether the applicant has mentioned in his application the period from which the respondent made default?
The afore-mentioned issues were .Struck OF by the learned Rent Controller vide Order dated 15.2.1997. In support of the application, the applicant produced AW-1 Maqbool Ahmad, AW-2 Amir Hamza, AW-3 Sohbat Khan, AW-4 Muhammad Nadeem, AW-5 Javed Hasan, AW-6 Ali Ahmad, AW- 7 Sham Kumar and statement of the respondent was recorded.
3. In rebuttal, the appellant produced RW-1 Javed Iqbal, RW-2 Abdul Wahid, RW-3 Abdul Sattar, RW- 4 Humayun, RW-5 Ishtiaq Ahmad, RW-6 Syed Masoom Shah, RW-7 Abdul Saboor, RW-8 Muhammad Rahim, RW-9 Muhammad Hussain and statement of the appellant .Was also recorded.
4. After hearing the parties, the learned Rent Controller accepting the plea of personal requirement, ordered eviction of the appellant vide impugned judgment mentioned hereinabove, hence this appeal. Along with the appeal, the appellant has filed an application for additional evidence wherein it is prayed that he be allowed to bring on record certain documentary evidence as during the pendency of the Eviction Application, the said documents were not available.
5. Mr. Khushnood Ahmad, Advocate appearing tor the appellant contended that the application for additional evidence may be allowed as during the pendency of the Eviction Application, certain documents which were not in the knowledge of the appellant could not be filed as he is now in possession of the same which shows that the respondent is in possession of their shops which are lying vacant which negates his personal bona fides.
6. The learned counsel further contended that initially the shop in dispute was It out to Datha Radio which was leased hy the predecessor-in- interest of the appellant but the Eviction Application has been wrongly filed in the name of the appellant excluding their legal heirs i.e. His brothers and sisters. He further stated that the property belonged to Arbab Muhammad Azim but the respondent not being son of Arbab Muhammad Azim cannot claim ownership of the same. The learned counsel opposing the Eviction Application on merits contended that personal bona i.e use as averred in the application could not be proved but the learned Rent Controller has misread the evidence and has erroneously held that the shop in dispute, is required by the respondent for the personal use and occupation of his son.
7. Mr. Muhammad Mohsin Javed, Advocate tor the respondent contended that the Eviction Application was filed in 1995 and the same was pending till disposal i.e. Up to 1999 and ample opportunities were given to the respondents to lead evidence; thus at this stage there is no justification for allowing additional evidence. The learned counsel further contended that even otherwise, the documents which the appellant wants to bring on record have no relevancy with the case in had. He further stated that the respondent is tenant of the applicant and is exclusively doing business; thus there was no need to join his brother and sisters. As far as merits of the case are concerned, the learned counsel contended that the same was proved and eviction has been rightly ordered by the learned Rent Controller.
8. I have heard the arguments of the learned counsel for the parties and have perused the record minutely.
9. Coming to the application for additional evidence, it is mentioned in the same that the appellant wants to summon the representative of Excise and Taxation Department in respect of certain shops belonging to the respondent and which are lying vacant. It is noted that the Eviction Application was filed in the year 1995 and was ultimately decided on 31.8.1999 i.e. After more than four years. The appellant produced nine witnesses in support of his contention. There is nothing on record to show that the documents intended to be brought on record were not available. The same have been issued by the Excise and Taxation Department;, thus no cogent reason has been given in support of the application tor additional evidence. Besides, from the perusal of the said f documents it reveals that the shops belong to Mst.
Bibi Fatima, widow of Arbab Muhammad Azim. Thus, the said documents have no relevancy with the facts of the case in had; therefore, the application for additional evidence is rejected.
10. Mr. Khushnood Ahmad, Advocate contended that initially the shop in dispute was rented out by the father of the appellant who was the owner of Datha. Radio and further stated that the rent receipts issued have ' also been in the name of Datha Radio; thus the Eviction Application in the name of respondent is not maintainable.
11. Mr. Muhammad Mohsin Javed, Advocate for the respondent argued that only the respondent is doing business in the name of Datha Radio but as far as Datha Radio is concerned, it is not a legal entity. It is 1 neither a registered firm nor a company. When confronted with the said position, Mr. Khushnood Ahmad, Advocate conceded that the appellant is doing business in the name of Datha Radio which is neither registered nor a company having any legal entity. Mr. Muhammad Mohsin Javed, Advocate further stated that previously an Eviction Application was tiled the appellant regarding the shop in dispute which was disposed of on 2.10.1994 and where the appellant accepted to be tenant of respondent. Previously an j Eviction Application was filed by the respondent against the appellant ; which was disposed of on 2.10.1994. The Order dated 2.10.1994 is j reproduced below:- 'IJ [yJ'id'? J* Jl JV-/* A y fJ&sf^ jhjffjiJr-'jtj ^Disposed ofFrom the aforesaid order it appears that in the previous round of litigation, the respondent never raised the plea that the shop in dispute was ' rented out to M/s. Datha Radio; thus his plea that the shop in dispute was rented out to his father is repelled.
12. Reverting to the next contention regarding title of the appellant Mr. Khushnood Ahmad, Advocate attempted to argue that since the shop in dispute belonged to Arbab Muhammad Azim and the appellant was not his legal heir; thus he could not be termed as owner/landlord of the premises in dispute; suffice it to observe that in the previous round of litigation, the appellant has accepted the respondent as his landlord and thereafter he cannot be allowed to dispute the title of the respondent. It may further be observed that the respondent has proved that the shop in dispute was gifted to him by late Arbab Muhammad Azim and in this regard a gift deed was also executed which was brought on record as Ex.A/4 and on the basis of the same the shop in dispute was entered in the revenue record in the name of the respondent. Copy of the mutation entry has been brought on record as Ex.A/5. Thus, in view of the above, the contention that title of the respondent is defective, is repelled.
13. Coming to the merits of the case regarding personal bona i.e use, it is the case of the respondent that he requires the shop in dispute for personal bona i.e use and occupation of his son Muhammad Jahangir who is jobless. In this regard respondent produced AW-1 and AW-2 and got recorded his on statement. Both the witnesses have categorically stated that the son of the applicant wants to do business of Electric Goods in the shop in dispute and have also brought on record that Sooraj Ganj Bazar is suitable for electronics goods. The statement of the respondent regarding personal bona i.e use and occupation of his son is consistent with the averments made in the plaint.
14. Mr. Khushnood Ahmad, Advocate for the appellant contended that the respondents had filed Eviction Applications against their other tenants who are occupying their shops situated at Jinnah Road and Shahrah- e-Iqbal, Quetta. The applicant in his cross-examination stated that the Eviction Application filed in respect of the shop situated at Jinnah Road was for his on personal use and occupation as he is a doctor whereas the other Eviction Application filed in respect of the shop situated at' Shahrah-e- Iqbal was for the occupation of his son. Besides, the learned counsel has failed to show that the Eviction Application filed in respect of these shops were vacated or not but there is nothing on record to suggest that the Eviction Applications in respect of the other shops were filed for the personal bona i.e use and occupation of his son namely Jahangir. It may be observed that the Eviction Application regarding the other tenants were very much in the notice of the appellant but the same were not brought on record. Thus, no adverse inference can be drawn against the respondent regarding personal bona i.e use and occupation of his son Jahangir in respect of the shop in dispute. Regarding personal bona i.e use and occupation of the applicant reliance is placed on the following cases:-
(1) Junta Sher Vs. Sabz Ali, (1997 SCM R 1062) wherein the following observations were made by the Hon'ble Supreme Court:- "We have gone through the statement of the appellant recorded before the Rent Controller in the case. The appellant in his evidence clearly stated that he required the premises for his personal and bona i.e need and that he is presently not occupying any other shop or premises where he could do the business in the cantonment area. He was subjected to a very lengthy cross- examination by the counsel for the respondent but his evidence could not be shaken. Nothing was brought on record to show that the appellant was in possession of any other property in the cantonment area suitable for his needs and requirements. It has been held by this Court in the case Messrs F.K. Irani & Co. v. Begum Feroz (1996 SCM R 1178), that even the sole testimony of the landlord is sufficient to establish the personal and bona i.e requirement of landlord. In the case before us, the statement by the appellant on oath was quite consistent with his averments made in the ejectment application and neither this statement was shaken nor anything was brought in evidence to contradict his statement. In fact, the respondent did not even step in the witness-box to controvert the testimony of the appellant in the case. In these circumstances, the Rent Controller was fully justified in accepting the evidence of the appellant and ordering eviction of respondent from the premises."
(2) Sheikh Muhammad Jameel Vs. Government of Pakistan through Secretary, Ministry of Finance, Islamabad and 2 others (1998 M LD 1049) wherein the following observations were made:- "There is nothing on record to doubt the bona fides of the appellant. Merely the ownership of other shops in the same premises would not disentitle a landlord for get in specific shops vacated for running his business or for the benefit of his son for running a business. The appellant's son is admittedly unemployed and it has been brought on record through evidence that the appellant requires the premises in dispute for the benefit of his son for running a medical and general store.
The law in this regard is quite established that the choice in these matters lies with the landlord and not with the tenant or the Rent Controller."
15. Mr. Khushnood Ahmad, Advocate contended that since the son . Of the respondent is studying; therefore, his personal requirement is based on mala fides. The learned counsel referred to document Mark R/I which is the certificate from Principal, Government Degree College, Mastung that in the years 1993-95, Jahangir Ahmad was a regular student of the college. It may be mentioned here that the certificate issued pertains to 1993-95. There is nothing else to. Show that the son of the respondent had been employed or was on job at the time of filing of the Eviction Application. Besides, the Eviction Application was filed in 1995 and decided in 1999 and the son of the applicant could not be expected to sit idle for such a long period. The respondent in his statement has categorically stated that as soon as the premises in dispute is vacated by the appellant, the same will be occupied by his son. It-may be mentioned that protection has been given to the tenant under Section 13 (4) of the Ordinance that if after getting vacant possession of the shop in dispute, the same is not occupied within the stipulated period, the appellant can make an application to the Rent Controller for possession of the shop in dispute.
16. Thus, the contention that the respondent failed to prove personal and bona i.e use and occupation of his son Muhammad Jahangir is without substance. As a result of the above discussion, I see no merits in the appeal which is dismissed. Appellant is granted four months' time to vacate the premises in dispute.