1. The F.A.O. Nos.37 to 42 and F.A.O. Nos. 33 to 36 although separate judgments in each of the appeal corresponding to separate eviction applications independent judgments dated 26-3-1999 and 21- 4-1999 passed by Civil Judge-III/Rent Controller, Quetta have been assailed, but as identical questions of facts and law are involved, therefore, I have proposed to dispose them of by instant common judgment. Briefly stating facts of the case are that appellant Sheikh Hassan Khan son of Sheikh Haji Muhammad Ramzan is the owner of a building known as "Sheikh Plaza" situated at the corner of Quarry/Gowalmandi Chowk. It consists of 43 shops on the ground floor with 25 rooms on the first floor. It is stated that out of total number of shops, six shops alongwith 25 rooms were in possession of a tenant namely, Sherzai which admittedly appellant got vacated thereafter to obtain possession of remaining shops which were in occupation of respondents separate eviction applications were filed on the ground: That the appellant is jobless as such wants/intends to start timber business after demolition of Sheikh Plaza so the premises in question is reasonably and in good faith required to him for running of his own business." In pleadings it was categorically clarified that after demolition of the property in question no construction is required to be raised over the property as its boundaries will be covered by wires and the timber business can be carried out on an open place of land. The tenants filed written statement wherein identical defence was put up denying their relationship of tenant with the appellant as well as repudiating claim of appellant to occupy open plot after demolishing existing structure.
2. Learned trial Court on 5-12-1997 struck following issues for determination:
(1) Whether there exists relationship of landlord and tenant between the parties?
(2) Whether applicant need disputed shop for his personal bona fide need to start timber business?
(3) Relief? On the same day Issue No,1 was recast as under: "Whether the applicant is landlord and respondent is tenant in disputed property?" Because respondents have not admitted their relationship with appellant of being his tenant, therefore, vide order sheet dated 29-9-1996 no order of depositing the future rent as required under section 13(6) of Balochistan Urban Rent Restriction Ordinance VI of 1959 was filed. It is also noteworthy that except one case in which issue of default in payment of rent was also framed for determination remaining eviction applications were ordered to be consolidated on 2-10-1996.
3. Thereafter Civil Judge/Controller started recording evidence being led by appellant and when about three witnesses have been examined respondents through their counsel made statement that they admit relationship of landlord and tenant between the parties, as such in view of such assertions on 20-10-1996 following order was passed by the Controller: Counsel present in Court. Three witnesses got recorded their statements. Counsel for respondent has stated that he has admitted the relationship of landlord and tenant. So issue may be deleted. Issue of relationship may be deleted. Respondents are directed under section 13(6) of Rent Restriction Ordinance to deposit rent of disputed property in Court at the rate of Rs,450 per month from the date of institution of suit and before 15th of each month and rent challans may be produced in Court for perusal. Case adjourned. To come up for evidence of applicant and for perusal of the rent challans as on 3rd November, 1996. Counsel for applicant stated that he will record statement of applicant and does not intend to produce more witnesses. Case be adjourned for statement of applicant. Civil Judge-III, Quetta." It is noteworthy that in some of the cases covered by F.A.O. Nos.33 to 36 defence of the tenants was struck off as they did not comply with the order, therefore, they preferred appeals before this Court which were allowed and case was remanded to Controller for decision. In the meanwhile remaining cases were proceeded and the Controller after recording evidence of parties vide judgment dated 26-3-1999 rejected claim of appellant. Similarly those cases which were sent back by this Court became mature and a separate judgment on identical points was delivered on 24-4- 1999, therefore, they also filed F.A.O. Nos.33 to 36. During pendency of appeals respondents filed application under Order XXIII, Rule 3 read with section 151, C.P.C. Stating therein that notables/well-wishers of the parties got organized a compromise/adjustment during pendency of the eviction application according to which the parties have settled their matter out of the Court, therefore, opportunity be given to them to prove the same. Notice of the application was given to appellants who denied that any compromise was effected between the parties. According to his explanation parties never agreed for enhancement of rent. However, they were entered into an agreement to settle the matter outside the Court but the same was not settled and no compromise was arrived at thus request was made for rejection of the application. Mr. Kamran Murtaza learned counsel contended that appellant has proved overwhelming evidence to substantiate that shops/compromise in possession of respondent are required for demolition and occupation in good faith the open plot of land for the purpose of running the business of timber for which he has rich experience, but learned Controller merely for extraneous reasons disallowed the claim of appellant.
4. On the other hand Mr. Tariq Mehmood learned counsel for respondents filed written arguments contending therein that as the disputed property is a building therefore, the same can be required for the purpose of reconstruction only under the law and it cannot be treated as rented land because admittedly the respondents are in possession of the building, therefore, the controller has rightly dismissed the eviction application filed by appellant. I have gone through impugned orders carefully. Firstly of all it may be noted that in the written statement filed by respondents denying their relationship to be tenant of applicant and later on themselves accepted him as landlord after recording of some evidence as such, one can conclude that this plea was taken by respondent to cause delay in disposal of matter contumaciously and under the circumstances their tenancy was liable to be forfeited forthwith. As far as the plea now being raised by Mr. Tariq Mehmood, Advocate is concerned, it was not incorporated in the written statement. Contrary to it their plea was that applicant is a contractor engaged in the construction work. Moreover, the building in dispute is newly-constructed and it is a cooked story to say that the same would be demolished for the purpose only that timber will be sold there. Besides numerous other occupants are also in possession of various portions of the building against whom no action has so far been taken. Therefore, it would be seen whether the plea which is being taken by the respondents' counsel can be entertained at this stage or not. But before dilating upon the respective contentions of the parties it is worth to note that during hearing of the appeals learned counsel for respondent reiterated their apprehension that how appellant would agree to demolish the building which has been newly-constructed after spending considerable amount and if he had bona fides in his claim then the rooms constructed on the first floor of the building alongwith six shops on ground floor obtained from one Sherzai should have been demolished. In view of such statement learned counsel for appellant placed on record following statement:-- "That on the last date of hearing it was offered by the respondent's counsel that if the appellant demolishes the upper storey of the building where the shop/shops in question are situated within three days the respondent will have no objection to vacate the premises in their occupation, on which querry was made by Honourable Court from the counsel of appellant. But the appellant was not present as such his counsel showed his inability to make a statement. However, the offer was conveyed to the appellant by his counsel who is ready to start demolishing the upper storey within clear three days provided the respondent/tenant hands over the vacant possession of the property/premises which is in his occupation." In the written arguments Mr. Tariq Mehmood repudiated the statement being attributed to him in the above statement on the ground that when such enquiry was being made though he was present, but he did not offer to vacate the premises if appellant will demolish part of the building which is in his occupation. Be that as it may even in absence of above statement bona fides of appellant to occupy the open plot after demolition of existing building is to be adjudged on the basis of pleadings as well as evidence led before the trial Court, therefore, it is imperative to examine the impugned order to ascertain that what were those reasons which prevailed upon the Controller in disbelieving his plea. In this behalf it is to be seen that relief was denied to applicant by the Controller principally for the following reasons:-- "I have come to conclusion that applicant has not been able to prove that he has filed present eviction application with bona fide intention for his personal bona fide requirement and he cannot prove through evidence that besides disputed shop he is in possession of remaining shops of 'Sheikh Plaza' and his other tenants have not come to witness-box to say that they have vacated 19 shops in favour of applicant. As timber business cannot be started until and unless Sheikh Plaza is in possession of the applicant for demolition."
5. Mr. Kamran Murtaza learned counsel for appellant has placed on record for our perusal an order of Honourable Supreme Court passed in Civil Petition No,95-Q/1998 in the case of "Sherzai v. Sheikh Hassan Khan" on 22-9-1998. Facts of the said case in brief are that appellant filed an application against him to obtain possession of six shops and 25 rooms constructed on the first floor of Sheikh Plaza some of the shops which are also subject-matter of instant proceedings. The eviction application was allowed in terms of the compromise whereby tenant agreed to hand over the possession, but subsequently he filed an application under section 12(2), C.P.C. For recalling of consent order wherein his plea was that there was an independent understanding between the petitioner and the respondent landlord (Sheikh Hassan Khan) not to actually evict the petitioner (Sherzai), but merely to facilitate eviction of other tenants. The application was dismissed by the Controller and appeal filed against said order being No,48 of 1997 before this Court was also dismissed on 14-4-1998 and the Honourable Supreme Court affirmed the decision of the High Court while making following observations: "The only point urged before us has been that no evidence was recorded by the learned Controller on the petitioner's said application under section 12(2) of the Code. That does not seem to have been necessary because the petitioner in contradiction of stipulations was trying to displace the written submissions of the compromise before the Controller orally which besides appearing to be an afterthought may not have been ever permissible in virtue of Article 103 of the Qanun-e- Shahadat Order, 1984 which enjoins restriction as to oral testimony designed to displace covenants in a written agreement." In view of the above decision of Honourable Supreme Court now it is an admitted position that appellant is in possession of six shops on the ground floor and 25 rooms on the first floor which can conveniently be demolished by appellant at any moment. Now reference may be made to the statement of appellant who stated that in respect of the premises which were in possession of Sherzai a decree has been passed and remaining shops are in possession of tenants who were 15 in number and were temporarily occupying the shop have also handed over their possession to him. He further stated that after demolition of the same he intends to run the business of timber on the plot as he is jobless for last about 2-1/2 years and he has also experience in the business of timber. He further explained that in the vicinity where disputed shops are situated the timber business is being run. The applicant also stated that he has Rs,20/25 lacs for the purpose of running the business. It is very important to note that in cross- examination not a single question was put to him that he is not in possession of 15 shops which he got vacated from the tenants occupying the same temporarily. Inasmuch as it was not put to him that Sherzai has not handed over possession of the six shops on ground floor and 25 rooms on the first floor. Similarly the witnesses produced by respondents did not rebut to the stand of appellant that he is in possession of the shops/rooms details whereof have been given hereinabove. Thus under the circumstances no other inference can be drawn except that appellant was not under obligation to produce those tenants who have handed over possession of the shops to him because the respondents themselves have not denied this fact. As such inference drawn in this behalf by the learned Controller is not sustainable. It is worth to note that the evidence produced by appellant through his witnesses i,e, AWs. 1, 2 and 3 as well as AW-3 appears to be confidence- inspiring as they have furnished consistent evidence that appellant is jobless, therefore, he intends to run the business of timber on the plot after demolishing the existing Sheikh. Plaza. As far as appellant himself is concerned he has in unequivocal terms stated that the premises in question are required for the purpose of running the business of timber after demolishing the same for such business, but had also made arrangement of Rs,20/25 lacs. The respondents through their evidence could not rebut this particular stand of the appellant either during his cross-examination or by producing evidence, therefore, I am of the opinion that the conclusions of the Controller in non-suiting the appellant being devoid of force deserve to be expelled by holding that appellant had successfully proved his bona fides to occupy the building for the purpose of demolishing and then running the business of timber on open plot; As far as plea of respondent's counsel that after demolishing the building it can only be used for the purpose of re-construction is concerned, is not entertainable being raised for the first time in defending the appeals, because if this plea would have been incorporated in the written statement the appellant had also availed opportunity to rebut the same before the Controller. Mr. Tariq Mehmood learned counsel had also contended in the written arguments that proper opportunity was not availed by respondents to adduce evidence because on account of interference by the notables to settle the dispute between the parties they had lost the interest. In my opinion assertion in this behalf is not correct because case diary speaks contrary to the plea of learned counsel according to which good many opportunities were provided to respondents to produce the evidence. Inasmuch as repeatedly cost was also imposed upon them, but they did not produce evidence, therefore, finally on 20-2-1999 following order was passed closing the side of respondents:-- "Counsel for applicant present. Counsel for respondent present. Respondent not present for statement despite of last opportunity at the cost of Rs,200 which was granted on the request of counsel for respondents. Perusal of order sheet transpired that many opportunities have been granted to respondent's counsel to produce respondent for statement. However, he has failed to produce respondent in the Court for recording statement without any cogent reason due to which case has been lingered on. It seems that respondent is not interested in recording his statement.
6. So keeping in view disinterest of respondent in recording statement, his statement is closed. Case adjourned to come up for final arguments as on 2-3-1999." Similarly in the other case i,e, F.A.O. Nos.33 to 36 announced vide separate judgments on 21-4-1999 good many opportunities were availed by respondents, but they did not produce evidence, therefore, under these circumstances I am of the opinion that the plea raised by learned counsel that opportunity was not given to them is not acceptable. In addition to it, it is to be noted that plea of respondents for not producing evidence is that because in the meanwhile parties have entered into a compromise and the learned counsel. Mr. Tariq Mehmood had also filed applications in this behalf before this Court to prove the same. There is no dispute that an agreement was executed between the parties for the settlement of dipute, but admittedly no compromise/adjustment in writing so far has come on earth to believe that in fact, the arbitrators have succeeded in getting compromised the matter between them. Contrary to it perusal of the record suggests that a plea in this behalf was raised during the pendency of the case before the Controller who passed following order in this behalf on 9-12-1998:-- "Counsel for applicant present in the Court. Counsel for respondent present and stated that parties have entered into a compromise out of Court. He has produced copy of arbitration agreement in Court on last hearing. Applicant's counsel denied that applicant has entered into compromise.
7. Applicant's counsel stated he has not contracted with his party. However, he would contract his client and would inform the Court about compromise on the next date. Counsel are directed to intimate the Court about compromise on the next date 15-12-1998.. Cost of Rs,1,000 be paid to applicant's counsel." Subsequently case was adjourned for 15-12-1998 and 30-12-1998. But the counsel for respondent could not file compromise in the Court, therefore, the Court decided to proceed with the matter on merits and fixed case for recording statement of the respondent. It is also to be noted that even alongwith the application which has been filed alongwith appeal no compromise has been placed on record, therefore, under the circumstances I am of the opinion that in absence of any written compromise between the parties through notables merely on the basis of assertions that compromise has been effected between them, appeals cannot be dismissed.
8. It may be noted that learned counsel for appellant in some of the cases has also filed application for striking off the defence of the respondent because they have failed to deposit rent in terms- of the order under section 13(6) of the Ordinance VI of 1959. But in absence of the details in respect of default in payment of rent, it would not be possible to dispose of the application merely believing its contents, therefore, no order is passed in this behalf. Thus for the foregoing reasons Appeals Nos. 32, 37 to 42 and 33 to 36' of 1999 are allowed, impugned orders dated 26-3-1999 and 21-4-1999 passed by Civil Judge III/Rent Controller, Quetta are set aside and respondents are directed to hand over vacant possession of premises/shops to appellant in their possession within clear two months after passing of this order subject to compliance of the order passed by learned Controller for depositing future rent in terms of section 13(6) of the Balochistan Urban Rent Restriction Ordinance.