This appeal under section 15 of Balochistan Urban Rent Restriction Ordinance, No,VI of 1959 has been directed against order dated 31-5-2000 passed by the learned Civil Judge-II/Rent Controller, Quetta whereby the eviction application filed by respondent No,1 against the appellant and respondent No,2 has been allowed and they were directed to hand over the vacant possession of the shop to the respondent No,1.
2. The brief facts of the case are that the respondent No,1 instituted an eviction application on 4-9- 1999 under section 13 of Balochistan Urban Rent Restriction Ordinance No,VI of 1959 against the appellant and respondent No,2 contending therein that he is the owner and landlord of the Municipal Shop No,1-22/41 X (3586), situated in Mahal and Mouza Ward No,47, Quetta Urban, measuring 122 sq. Ft. Situated at Ibrahim Khan Lane, Kansi Road, Quetta, which was rented out to the appellant against the monthly rent of Rs,1,300. It has further been contended that on 26-6-1999 a legal notice under section 13-A on behalf of the respondent No,1 was issued to the appellant which was duly received by the appellant, who vide his reply to notice acknowledged and attorned the respondent No,1 as owner and landlord of the shop in question by accepting his own status as that of a tenant in the shop against the rent of Rs,1,300 per month payable to the respondent No, 1 .
Eviction of the appellant and respondent No,2 was sought for on the grounds that the appellant committed wilful default in the payment of rent of the shop since June 1999 onwards, who also sublet half portion of the shop in question to the respondent No,2 without the written consent of the respondent No, 1/landlord as well as shop in question being reasonably and in good faith required by the respondent No,1/landlord for his personal use of business, consequently; the appellant as, well as respondent No,2 was approached to hand over the vacant possession of the shop, but they refused to do the needful, hence; on these facts and grounds eviction application was tiled. Both the respondents in the eviction application were served, out of whom appellant being the respondent No,1 in the eviction application by means of his rejoinder dated 20-12-2000 contested the grounds, on which eviction was sought for, whereas; respondent No,2 Talib absented himself and was proceeded ex parte on 11-11-1999 nor did he file rejoinder to the eviction application.
3. Out of pleadings of the parties, the learned Civil Judge-II/Rent Controller, Quetta framed the following issues:-- "(1) Whether the respondent No,1 has committed default in submitting rent of the shop in question from June, 1999, therefore, is liable to be evicted?
(2) Whether the respondent No,1 has sub-let the half portion of the shop in question to respondent No,2 without prior permission/consent of the appellant?
(3) Whether the appellant requires shop in question for his personal occupation and bona fide use of the same?
(4) Whether the appellant is entitled for the relief claimed for?
(5) Relief.'
4. The respondent No,1/landlord in support of his claim in the light of above-noted issues filed sworn in affidavits of two witnesses namely Muhammad Abid and Noor Muhammad as well as filed his own duly sworn in affidavit in support of the case. After completion of the evidence of the respondent No,1 the matter was adjourned for the evidence of the appellant from time to time and finally on 20-5-2000 due to non-production of evidence by the appellant his defence was struck off and; the learned Rent Controller after hearing the parties learned counsel vide order impugned herein allowed the eviction application directing the appellant as well as respondent No,2 to hand over the vacant possession of the shop to the respondent No,1/landlord by resolving all the issues in affirmative.
5. As regards the ground of eviction relating to the wilful default in the payment of rent since June, 1999 onwards is concerned, it was contended in the rejoinder tiled by the appellant that he was cognizant to his liability so, the due rent was remitted to the applicant from Chakwal by money- orders,. But the applicant refused to receive the same, however; it was offered that he is ready and willing to deposit the same in Court in favour of the applicant. He denied to have committed wilful default in the payment of rent and being first defaulter the non-payment of rent as claimed in the eviction application is condonable. As hereinabove noted the other grounds on which the eviction was sought for were also contested and in para. No,6 of the rejoinder plea has been taken that in case the shop in question was reasonably and in good faith required for personal needs of business, such alleged fact at least should have been mentioned in the legal notice issued to the appellant under section 13-A of Balochistan Ordinance No,VI of 1959.
6. Deponent Muhammad Abid in his affidavit deposed that he has seen the shop in question and also knows the parties. According to him the shop in dispute was rented out to the appellant by the respondent No,1 against the monthly rent of Rs,1,300 and since June, 1999 onwards rent has not been paid by the appellant (respondent No,1 in the eviction application), who also sublet the half portion of the shop to the respondent No,2. He further deposed in the affidavit that for half portion of the shop, respondent No,2 is paying rent to the appellant and the shop in dispute is required for the personal bona fide needs of business by the landlord, who does not have any other shop in Quetta City. The second witness of the landlord namely Noor Muhammad deposed in his affidavit that the shop in question has been leased out to the appellant against the monthly rent of Rs,1,300 and since June, 1999 onwards rent has not been paid by the tenant (appellant). Moreover; half portion of the shop in question has been sublet to respondent No,2 by the tenant (appellant) without the permission of the landlord and according to him the landlord is jobless and the shop in dispute is required by the landlord for his personal needs of business who does not hold any other shop in Quetta City for doing the business. Landlord/respondent No,1 deposed that on 26-6-1999 he issued legal notice through his Advocate to the appellant (respondent No,1 in eviction application) intimating about the title of the property/shop having been transferred in his favour and about rent, and; in response thereto vide reply dated 9-7-1999 sent to his counsel right to receive rent was accepted and acknowledged by the occupant tenant. Further in the affidavit it has been deposed that the respondent No,1 in the eviction application is his tenant in the shop in question against the monthly rent of Rs,1,300, but despite service of notice and acknowledging the liability to pay the rent, he has failed to pay the rent of the shop since June, 1999 till date to him. He further- deposed that without his permission half portion of the shop in dispute was sublet to respondent No,2 by the tenant, who partitioned the shop into two portions and further that the shop in dispute is reasonably and in good faith required by him for his personal bona fide needs of business and for the purpose he does not hold any other shop in Quetta City. He explained that due to death of his young son he is facing great hardships and both the said respondents are liable to ejectment from the shop in dispute.
7. Respondent No,1 as well as his abovesaid witnesses appeared in the witness-box and were subjected to cross-examination by the appellant's counsel in view of their sworn in affidavits tiled in the Court.
8. Heard the learned counsel for the appellant as well as Mr. Wayalat Hussain for respondent. Mr. Basharatullah contended:--
(a) That the landlord through evidence failed to prove that the appellant committed wilful default in the payment of rent and secondly the Issue No,1 with regard to the alleged default for the months of June, July and August, 1999 since was deposited with the learned Rent Controller within sixty days from the date on which the rent for these months had become due within the purview of section 13(2)(i) of Balochistan Urban Rent Restriction Ordinance No,VI of 1959 hence finding the appellant to have committed default in the payment of rent for these months cannot sustain and; thirdly the liability to pay the outstanding arrears of rent as claimed in the eviction application was not disputed in the rejoinder to the eviction application rather; the entire due and outstanding rent was duly deposited with the Rent Controller after the filing of the eviction application. Moreover; the due rent was remitted by money orders to the respondent No, 1 /landlord who did not receive the same hence; the entire rent payable having been tendered and refused to be accepted does not entail penal consequences.
(b) The respondent No,1/landlord failed to successfully discharge the onus of Issues Nos.2 and 3 respectively relating to the grounds of subletting and bona tide personal requirement hence; the findings on these issues deserve to be reversed.
(c) Close scrutiny of evidence produced by the respondent No,1 sufficiently indicates that the respondent No, 1/landlord has long before permanently shifted from Quetta to Chakwal alongwith his family i,e, wife and children and prior to shifting to Chakwal, the respondent No,1 has sold entire of his properties commercial and residential in Quetta including the house in which he was residing hence; in these circumstances it cannot be assumed that the shop in question is reasonably in good faith required by the landlord for his needs of business.
(d) Reasonable and fair opportunity for producing evidence in rebuttal was not afforded to the appellant by the learned Rent Controller and within a period of less than thirty days the defence of the appellant was struck off which has caused serious prejudice to the appellant hence; on this score as well the impugned order cannot sustain.
9. Mr. Walayat Hussain, the learned counsel for the respondent No,1 at the very outset submitted that he does not press the ground of eviction with regard to the default in the payment of rent in view of the contention raised in a such behalf by the appellant's learned counsel, however; the learned counsel strenuously contended that the onus of issues as regards Nos.2 and 3 are concerned was successfully discharged by the landlord/respondent No,1 and the findings on these issues are unexceptionable. According to the learned counsel merely having sold out some of the shops in Quetta and the house in which the landlord was residing per se does not adversely reflect upon the bona tides of the respondent No,1 for the shop in question being reasonably required for his personal needs of business and as regards the frequent visits of the landlord to Chakwal or of his children having gone to Chakwal to see their ailing mother, duly explained by the landlord in his evidence, would not be enough to hold that the landlord failed to show his bona fides and personal requirement. The learned counsel contended that evidence on the point including that of the landlord is consistent, convincing and reliable which the appellant failed to rebut hence; findings recorded by the learned Rent Controller on Issue No,3 based upon evidence cannot be lightly interfered with. Further the learned counsel argued that through evidence it was duly substantiated by the landlord that without written consent half portion of the shop in dispute was sublet to the respondent No,2 by the appellant and evidence on the point could not be discredited hence; the learned Rent Controller on proper appraisal of evidence resolved Issue No,2 in affirmative. He further argued that six opportunities on different dates were provided to the appellant for production of evidence but for no-justification he failed to produce any witness in rebuttal nor himself appeared in the witness-box consequently; the learned Rent Controller was left with no option but close his evidence and the plea in such behalf that fair and reasonable opportunity for leading evidence was not afforded, is not sound.
10. The contentions put forth on behalf of the parties have been considered in the light of their pleadings, issues and the evidence produced by the landlord which has been gone through carefully including eviction order. Also the evidence produced by the landlord has been independently appraised in order to come to a just conclusion. Since the learned counsel for the respondent No,1 conceded to the contentions of the learned counsel for the appellant as regards Issue No,1 is concerned as well as failed to support the findings of the learned Rent Controller on Issue No,1 therefore, the findings of the learned Rent Controller on Issues No,1, are reversed, accordingly; the said issue stands resolved in negative. The case of the landlord is that the shop in question is reasonably and in good faith required by him for his personal needs of business, as he is jobless and does not hold any other shop in Quetta City and secondly the appellant without his written permission has sublet half portion of the shop in question to the appellant. In support of these grounds respectively Issues Nos.2 and 3 were struck by the learned Rent Controller. In order to discharge the onus of these issues the respondent No,1 filed affidavits of two witnesses namely Muhammad Abid and Noor Muhammad as well as filed his own affidavit and they also appeared in witness-box for the purpose of cross-examination and such right was availed by the appellant's learned counsel. Both the abovesaid witnesses have deposed that they know the parties and have also seen the shop in question in which the appellant is the tenant of the respondent No,1 against the monthly rent of Rs,1,300. They further affirmed that the landlord is jobless and the shop in question is required by him for his personal needs of business and is also not in possession of any other shop in Quetta City. Moreover; these witnesses have also deposed that without the consent of the landlord half portion of the shop in question has been sublet by the tenant to the respondent No,2. The respondent No,1/landlord has deposed that without his consent and permission half portion of the shop has been sublet by the tenant to the respondent No,2 by partitioning the shop and secondly the same is reasonable and in good faith required by him for his business needs and is not in. Possession of any other shop in Quetta City. He also explained that his young son has died and he is facing financial crises.
The version of the landlord as well as of his two witnesses on the point i,e, personal requirement and subletting could not be discredited on cross-examination, however; it transpires from the evidence that the house in which the respondent No,1/landlord was living has been sold besides some Other shops owned by him near to the shop in question and secondly he visits Chakwal were also his wife is residing and it has been explained in the cross-examination by the respondent No,1/landlord on his own that his wife is a sick person, therefore, for the purpose of treatment she has been residing there and his children have now left for Chakwal to see their ailing mother, the landlord also admitted that for the date of hearing he has come to Quetta from Chakwal but these facts alone in the ordinary course would not be sufficient to hold that requirement of the shop for personal needs of business to be not bona tide as the landlord himself is always a best judge to manage and tackle his own dealings and affairs as he deems fit and proper nor such facts in absence of evidence to the contrary culminates into the taking of an exception that the landlord has permanently shifted to Chakwal and thus the ground of eviction with regard to the shop being required for personal needs of business to be ill-founded and mala fide. Visits of landlord to Chakwal to attend his sick wife or temporary and frequent visits of landlord to Chakwal after disposal of other properties in Quetta alone would not be sufficient to conclude that he does not require the shop in dispute for his business needs and in good faith because primarily such acts relate to the private and internal affairs and dealings of such person which from case to case vary and depending upon one's own needs and benefits hence; in my considered view the respondent No, 1/landlord successfully discharged the onus of Issues Nos.2 and 3 and the learned Rent Controller on proper appraisal of evidence resolved both the issues in affirmative. Adverting to the contentions that fair and reasonable opportunity for leading evidence in rebuttal was not afforded to the appellant, it may be seen that the case was fixed on 29-4-2000, 8-5-2000 and 20-5-2000 for production of evidence or filing of affidavits of witnesses by the appellant but without any explanation offered by the appellant's learned counsel he failed to file affidavits nor was advanced any reason which precluded the appellant to produce witnesses or even to file affidavits of his witness although; twice cost was also imposed for non-production of evidence consequently; vide order dated 20-5-2000 evidence of the appellant was closed by learned Rent Controller and the case was adjourned to 23-5-2000 for the statement of the appellant but on the date the appellant also did not appear and the matter was adjourned to 24-5-2000 but again he did not appear in the Court and his learned counsel did not advance any reason about the failure of the appellant to appear in Court for statement consequently; his right to appear in the witness- box was also closed and after hearing the learned counsel for the parties, the eviction order impugned herein was passed. It is pertinent to note that on all these dates the learned counsel for the appellant appeared on his behalf in the Court but he did not advance any reason on any of such dates on account of which the affidavits of witnesses were not filed and the failure on the pan of the appellant to appear in Court for statement hence; in view of these facts the submission of the learned counsel for the appellant that during this period the appellant remained out of station on account of illness of his son appear to be unsound and had it been so, the appellant could have informed to his counsel about the cause which precluded him to produce evidence by a telephone call or by telegram or even by post in absence whereof merely for the reason that since these opportunities/dates fixed by the Court involved a period of less than thirty days will not lead to believe that fair and reasonable opportunity for leading evidence was not afforded by, the learned Rent Controller. As hereinfore noted since on none of the above mentioned dates any reason was put forth by the appellant's learned counsel which prevented the appellant to produce evidence or to himself appear in Court, therefore, it cannot be said that fair and reasonable opportunity was not afforded for production of evidence and thus; the multiple opportunities given for the purpose to the appellant within a period of less than thirty days in the ordinary course amounts to the providing of fair and reasonable opportunity for production of evidence hence; the ground so urged also seems to be devoid of any substance. Thus; in view of above discussion and reasons this Rent Appeal being without any merit is dismissed, leaving the parties to bear their own costs.