1. This appeal is directed against the order dated 29-4-2002 passed by learned Civil Judge-II/Rent Controller, Quetta whereby the eviction application filed by the respondents was accepted and the appellant was directed to hand over vacant possession of the Shop A-11 situated at Fatima Jinnah Road, Quetta to the respondents within four months. Brieftly stated that facts of the case are that on 16-5-2001 the respondents (hereinafter referred to as landlords/applicants) filed eviction application under section 13 of Balochistan Urban Rent Restriction Ordinance VI, 1959 seeking eviction of appellant (hereinafter referred to as tenant) from the Shop No,11-A Fatima Jinnah Road, Quetta on the grounds of (i) default in payment of rent from May, 1993, (ii) subletting of the shop and (iii) that the landlord/applicant No,3 reasonably and in good faith requires the shop for starting his independent business. The application was contested by the tenant by raising preliminary objections with regard to maintainability of the application while on merits too the plea of landlords/applicants was denied.
2. In nutshell the tenant claimed that the landlord/applicant No,3 is running business of Azad Muslim Hotel, Jinnah Road, Quetta and also has numerous units of property at different places, the application was stated to have been filed only to enhance the rent as with same motive previously also an application seeking eviction of the tenant was filed which was withdrawn from Supreme Court. The tenant came up with counter-claim that the shop in question was obtained by him by payment of Rs,35,000 to the previous tenant as advance/deposit and Rs,300,000 as Pagri/goodwill with the permission and consent of the landlords/applicants. The ground of personal requirement was stated to be baseless. While the rent was stated to be deposited in the Civil Court when the landlord/applicants refused to receive the same. According to the tenant he being a Government servant is carrying out the business through servant and denied the allegation of subletting. Out of the pleadings of the parties, the trial Court framed following Issues:-- "(1) Whether the application is not maintainable in view of preliminary legal objections of 'B, D, E and F' raised by respondent in rejoinder to application?
(2) Whether the respondent has sublet the disputed shop to someone?
(3) Whether the respondent is a bad pay master and did not pay the rent of shop since May, 1993?
(4) Whether the disputed shop is required by applicant in good faith?
(5) Whether two legal notices served upon respondent from applicant?
(6) Whether the applicant is entitled for relief claimed for?
(7) Relief." Landlords/applicants in support of their claim examined A.W.1 Haji Zareen Khan while applicant No,2 Haji Muhammad Hashim and applicant No,3 Ghulam Mohiuddin also got recorded their statements to substantiate their contentions. In rebuttable the respondents examined R.W.1 Muhammad Pervez Khan, R.W 2 Dr.Javed Sarwar, R.W.3 Nauroz Ayub representative of Q.M.C., Quetta, R.W.4 Faiz Muhammad, Patwari while tenant himself also entered the witness-box to rebut the claim of landlords/applicants. The proceedings came to an end by means of order dated 29- 4-2002 whereby, application was allowed in the following terms:-- "According to the decision of issue No,4 the applicant is entitled to vacate the shop in question from respondent for the business of stationery shop. Therefore the application of applicant is accepted and the respondent is directed to hand over vacant possession of shop in question to applicants within four months from this order, Memo. Of costs be prepared. Case file after completion be consigned to record." Mr. Ayaz Sawati, the learned counsel for the appellant challenging his eviction came up with plea that the landlords/applicants filed the application with mala fide and ulterior motive only to enhance the rent or to rent out the shop to a third party by receiving Pagri and higher rent. Mala fides of the landlords/applicants was stated to be reflected by their conduct as previously also they filed an application seeking eviction of the tenant on the sole ground, that he has subletted the said shop but sensing the weaknesses of their case they withdrew their appeal from Supreme Court and thereafter fresh application was filed on fabricated grounds, which too they failed to prove. The tenant had obtained the shop, after payment of Rs,3,35,000 to the previous tenant, which was not only in the knowledge of the landlords/applicants but they consented to the same, therefore, the eviction of the appellant/tenant could not be sought without making payment of Pagri and advance paid by the tenant to the previous owner. The learned counsel further contended that the landlords/applicants have numerous other commercial buildings suitable for the business which the landlord/applicant No,3 intends to start, no evidence was placed on record to show that shop in question was more suitable for the said business. The learned counsel finally came up with plea that the evidence available on the record shows that the landlord/applicant No,3 is not jobless, he is rather running hotel and the second business cannot be run by him simultaneously, therefore, the said ground was not available to seek eviction of the tenant, whereas, the landlords/applicants failed to prove default in payment of rent and subletting of the shop by the tenant. On the other hand Mr. Mumtaz Baqri, the learned counsel for the landlords/applicants controverting the contentions so raised by the learned counsel for the tenant argued that the payment of Pagri as per tenant's own showing was made to the previous tenant, whereas, no evidence whatsoever was produced, to show that any amount was received by the landlords/applicants from the previous tenant or from the applicant at the time of induction of the applicant in the premises in question as tenant. No evidence was even produced to prove the payment of advance and Pagri to the previous tenant, mere assertions cannot be considered as proof. The landlords/applicants proved the subletting of the premises by the tenant to different persons, who had been carrying different kinds of business in the disputed shop. It was further contended that the tenant has admitted his being Government servant who without permission of the competent authority cannot engage himself in any private business, therefore, the claim of applicant that he himself is running the shop is violation of law. Besides, the tenant failed to produce the servant through whom the business was being carried out which by itself shows that the tenant wilfully concealed the status of the person occupying the shop and running the business. The learned counsel for the landlords/applicants contended that though it was proved that the shop was subletted by the applicant but as the main ground of requirement of the shop for bona fide personal use of the landlord/applicant No,3 was accepted and the eviction of the tenant was ordered, therefore, landlords/applicants being satisfied did not challenge the findings on issue with regard to subletting, however, the same was stated to be open for attack in this appeal. The learned counsel lastly came up with plea that it is the choice of the landlords/applicants to choose the suitable premises for his business and his statement with averments in the application are enough to show his bona fide, while the right of tenant is safeguarded by section 13(4) of Balochistan Urban Rent Restriction Ordinance, hence eviction of the tenant ordered on the said ground was not challengeable. The submissions made by the learned counsel for the parties considered, record of the case perused. Admittedly the landlord/applicant No,2 Haji Muhammad Hashim previously also filed application seeking eviction of the tenant from the shop in question. The application was allowed by the Rent Controller, however, on filing of appeal order was reversed by this Court, whereupon appeal was filed before Honourable Supreme Court, but the same was withdrawn vide order dated 24-1-2001 which reads as under:-- "Learned counsel for the appellant stated that they do not want to press the appeal and sought permission to withdraw the same. Other side has no objection. Permission so asked is granted with observation that appellant/landlord will be at liberty to move fresh application for ejectment of the respondents in accordance with law. It is also observed that if appellant will move fresh application against the respondent under section 13 of the Balochistan Urban Rent Restrictions Ordinance, the respondent will have no objection regarding its maintainability. Dismissed as withdrawn with no order as to costs."
3. In view of above order the tenant is barred to raise objection regarding maintainability of the second application filed by the landlords/applicants. Besides the law does not bar filing of second eviction application if subsequently any ground provided by section 13 of Balochistan. Urban Rent Restriction Ordinance becomes available to the landlord. For such view I am supported by the judgment of this Court in case Dr. Arbab Ali Ahmed v. Sarwar Khan 2000 M LD 87, wherein observation to the following effect was recorded:-- "Eyed Ayaz Zahoor, Advocate tried to argue that previously also the Eviction Application was filed which was dismissed but soon after the dismissal of the previous application, the instant applications were filed which shows mala fides of the landlord. It may be mentioned that previous applications were filed by the appellant on the ground of default which was contested up to the Hon'ble Supreme Court and ultimately the applications were dismissed. Suffice it to observe that there is no bar on filing subsequent Eviction Applications on different grounds from the ones raised in the previous Eviction Applications. Admittedly the previous Eviction Applications were filed on the ground of default whereas the instant applications were filed on the ground of personal requirement; thus the argument that ground of personal requirement could have been raised in the previous applications even before Supreme Court, is devoid of force. Even the findings of the learned Rent Controller regarding the previous applications are also misconceived and not tenable under the law. It may be observed that once ground of personal requirement is proved independently, then other irrelevant contentions raised by the tenant such as landlord employing himself during the pendency of Eviction Application and his previously filing an Eviction Application on the different ground, would become completely immaterial. Ejectment of the tenants falls within the four corners of section 14 of Balochistan Urban Rent Restriction Ordinance and provides specific grounds on which the landlord could seek eviction. Once such ground is proved, the contentions raised by the tenants as mentioned above would be of no significance. In this regard I am fortified with the view taken in Messrs F.K. Irani & Co. v. Begum Feroz 1996 SCM R 1178. In the case in hand as observed above, the question of personal bona fide use and occupation was independently proved by the appellant that he required the premises in dispute for his personal use and occupation and for his son Mehmood Ahmad, thus during the pendency of the Eviction Application, if Mehmood Ahmad got admission in college and the appellant had also filed an Eviction Application on the ground of default which was dismissed, would not negate the assertions of bona fides on his part. Thus in my considered opinion, the findings arrived at by the learned Rent Controller regarding question of personal requirement of the son of the appellant are not based on proper appreciation of evidence and the learned Controller has not appreciated the relevant law in its true perspective; thus the impugned order is not sustainable under the law."
4. There is no need to make any observation with regard to relationship between the parties, which is admittedly of landlord and tenant, however, the tenant claimed that he acquired the shop after payment of Rs,35,000 as advance and Rs,300,000 as Pagri to the previous owner with the consent of the landlords/applicants. The learned counsel for the tenant was of the view that the eviction of the tenant could not be ordered on the ' ground of personal requirement where the landlord has received huge amount as Pagri, for such view reliance was placed on the judgment in case of Malik Muhammad Zakria Kasi v. Dr. Bashir Ahmed PLD 2001 Quetta page 40. At first place the judgment relied' by the learned counsel does not impose bar on the landlord to seek eviction of tenant from whom Pagri has been received by him. On the other hand, in the present case it was not the case of tenant that he paid any amount as advance or Pagri to the landlords/applicants. The tenant in his application claimed that the advance and Pagri was paid by him to the previous tenant.
5. Besides, no evidence whatsoever was produced to prove the payment of advance and Pagri to the previous tenant also. Mere assertions in said behalf being denied by the landlords/applicants cannot be given status of proof. All the A.Ws. Including landlords/applicants Nos. 2 and 3 denied payment of any advance or Pagri by the tenant to the previous tenant and it was categorically stated that the applicant was inducted as tenant by the landlord/applicant No,2 being attorney for the others. On the other hand the evidence produced by the tenant in support of his claim rested on the statement of R.W.1 Muhammad Pervez Khan and R.W.2 Dr.Javed. The statement of both the above witnesses contradicted the plea of the tenant raised in the application with regard to payment of advance of Rs,35,000 to the previous tenant as both the above witnesses stated that the shop in question was obtained on monthly rental of Rs,500 from the landlords/applicants who were also paid Rs,35,000 as advance. The applicant in his statement also contradicted his said plea by making statement similar to that of R.W.1 and R.W.2. Ignoring the above contradiction the claim of tenant if accepted as it is, the same at the best shows that he paid certain amount to the previous tenant but no evidence whatsoever is available to reflect the consent of the landlord in any transaction made between the tenant and any third party/previous tenant. Besides, it is now well-settled law that payment of any amount on account of Pagri, does not create tenancy in perpetuity and the same cannot operate as bar against the landlord to seek eviction of the tenant from the premises on any ground provided under section 13 of Urban Rent Restriction Ordinance, for such view I take support of the judgment of Hon'ble Supreme Court in case Sheikh and Muhammad Yousaf v. District Judge d 2 others 1987 SCM R 307 wherein observation to the following effect was recorded:-- "We have carefully considered these arguments of the learned counsel for the petitioner-tenant.
6. 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 10 years with a right of re-entry reserved by respondent-landlord, but it is not mentioned in the lease deed that the respondent- landlord had received Rs,11,000 as Pagri from the petitioner-tenant, although it is so stated by him in its statement before the Rent Controller.
7. However, that being, the mutual arrangement between the parties, would not debar the respondent-landlord from instituting eviction proceedings on the ground of bona fide personal need."
8. Having regard to the evidence referred to hereinabove and the observations made by Hon'ble Supreme Court in the above cited case, I am of the opinion that payment of any amount if made by the tenant to the previous owner is not to affect the maintainability of eviction application on the grounds provided under section 13 of Balochistan Urban Rent Restriction Ordinance. However the tenant may approach the competent Court of law for recovery of the amount if law so permits. The landlords/applicants filed application seeking eviction of the applicant on three grounds i,e, default in payment of rent, subletting of the premises and bona fide personal need of landlord/applicant No,3. Although A.W.1 and the landlords/applicants Nos.2 and 3 in their statements stated that rent was not paid by the tenant but the record reflects that the rent from May, 1993 up-to-date was deposited in the Civil Court's account. It would be pertinent to mention that previously landlord/applicant No,2 filed eviction application against the tenant which was finally laid to rest by Hon'ble Supreme Court vide order dated 24-1-2001. Although the date of institution of the said application has not been stated but the circumstances reflect that after dispute with regard to subletting of the shop in question arose between the parties and application for eviction was filed, the rent was deposited in. Civil Court's account and there is no evidence to show that tenant ever refused to pay the rent. Therefore, the ground of default in payment of rent was not available to the landlord. The landlords/applicants claimed that the tenant being a Government servant is not carrying out business himself, he has rather subletted the shop. A.W.1 Haji Zareen Khan supported the landlords/applicants by stating that Mukhtiar Hussain is a Government servant, he himself is not running the business and the shop has been subletted to another person without consent and permission of the owners. Similar statement was made by applicant/landlord No,2 , Haji Muhammad Hashim and applicant/landlord No,3 Ghulam Muhiuddin. To the contrary the plea raised by the tenant was that there is no sub-tenant in the shop but the person who works there, is servant of the tenant. R.W.1 Pervaiz Khan supported the claim of tenant by stating that the shop has not been subletted and the tenant himself is running the business. However, in cross-examination R.W.1 while denied that the disputed shop was handed over to one Santosh Kumar for running of medical store, on his own stated that the respondent himself was doing business of medical store.
9. R.W.1, further admitted that at one occasion the shop was used for business of wholesale of wheat etc, and in the same shop business of video cassette was also carried. R.W.1 Dr. Javed Sarwar also came up with plea that respondent himself is doing business in the shop in question, he admitted in cross-examination that in the disputed shop business of provision store, video cassette and medical store was being carried out. The tenant also claimed that he himself is doing business in the shop in question while R.W.1. R.W.2 and the tenant himself admitted that the tenant is a Government servant and he had been posted outside Quetta during the period of tenancy. The tenant claimed that during said period his servant Nasir and Jamil had been running the business, but none of them was produced. Besides running of different kind of business such as medical store provision store and video cassette does not allow to believe that the applicant being a Government servant and also being posted outside Quetta was able to run the business himself or through his servant. None of the servant through whom the business was run has been produced, while for running of medical store a licence is required which is issued only to a qualified person but there is no evidence to show that how the medical store was being run by the applicant, without any licence. Although the landlords/applicants were unable to provide the details of sub- tenant or the terms and conditions on which the shop was subletted but in the stated circumstances when the tenant raised a plea to justify his absence and carrying out of business through servant became under legal obligation to discharge the burden of proving of the said fact.
10. In forming of such view, I am persuaded by the judgments titled as Mansoor Hassan and others v.
11. Abbas Ali Khan 1981 CLC 669 and Syed Muhammad Abbas v. Mst. Khatoon Bai, 1988 CLC 667. In the first cited judgment observation to the following effect was made:-- "In my view once a landlord proves that somebody else is using the rented premises either exclusively or jointly with the tenant, the burden of proof shifts on the tenant to explain the relationship between him and the person using the tenement. The fact that the appellant No,2 is the father-in-law of the appellant No,1 does not make any difference, it is the nature of the use which determines the point of the relationship with reference to a premises and not the personal relationship. As it was admitted by the appellant No,1 that he had permitted the appellant No,2 to carry on his practice as a Homoeopathy in the shop in question the burden was shifted on him to show that the above permission in fact did not constitute subletting or sharing of the tenancy rights, which burden the appellants have failed to discharge." In the last cited judgment following was observed:-- "Admittedly the appellant is a full time employee in the K.E.S.E. His case is that after the death of his wife as his son could not manage the business he employed a servant who is looking after the business on his behalf. He did not disclose the name of the servant either in the written statement or in the evidence. Whereas the respondent has made specific allegation in his affidavit-in- evidence supported by his witness, that for the last two to three years one Sadaqat and his two sons Anwar and Shadab have been in occupation of the shop and carrying on business and are found in control of the shop premises and business as well. If Sadaqat was an employee of the appellant, as alleged by the appellant, there was no impediment in his way to produce and examine him in Court to prove that he was the servant of the appellant. He could as well produce the accounts of the business showing the payment of salary to him and other things which he failed to do. The appellant also failed to produce the son Ali Raza who is alleged to running the shop alongwith the alleged servant. On the other hand there is a specific denial in the evidence of the attorney of the respondent that Sadaqat was a servant of the appellant. It was, therefore, all the more necessary for the appellant to produce Sadaqat as his witness. In fact, the averment made by respondent and his witness as to the fact of possession of the shop premises by Sadaqat and his two sons has been admitted indirectly by the appellants on witness. Mumtaz who stated that for the last two or three years two strangers sit on the shop. I, therefore, find that the respondent has established his case that the demised premises are in the possession of persons, other than appellant himself, as named in the application for ejectment and evidence. It was, therefore, the duty of the appellant to adduce evidence that there was not subletting and that the possession of the shop premises continuous with him which he has miserably failed to prove. In fact, the respondent and his witness have not been cross-examined on the evidence led by them on the question of subletting. The evidence of the respondent went unchallenged on the point of subletting. Only one question asked from the respondent witness Abdul Latif Hashmi, was with regard to having in his possession the documentary proof of subletting."
12. The evidence available on the record when examined in the light of judgment referred to hereinabove reflects that the tenant himself was not carrying out the business in the shop which in different times was of different natures and the tenant being a Government servant and also remained posted at Usta Muhammad could not himself carry out any business, therefore, it was for the tenant to prove that how and through whom the business of different kinds was being carried out which he failed. The preponderance of the evidence on said issue was tilted towards landlords/applicants. As such, I am unable to agree with the findings of the trial Court on the said Issue. Although the said finding was not challenged by the landlords/applicants by filing of appeal or cross-objections, as eviction of the applicant was ordered on the ground of bona fide personal requirement and the landlords/applicants being not affected by the said findings left the matter unattended, but they cannot be refused right to challenge the said finding when the whole of the matter has been re-opened in the appeal, as held by the Hon'ble Supreme Court in its judgment reported in 2003 SCM R 74, wherein observation to the following effect was made:- "We have heard the learned counsel for the parties at length. Under Order XLI, Rule 22, C.P.C. a respondent who does not file an appeal or cross-objection against a part of a decree can nevertheless support the decree on any of the grounds decided against him by the Courts below.
13. In an appropriate case, an Appellate Court may allow a party, on consideration of justice, to support judgment and decree under appeal on a ground which has been found against him in that judgment and decree. In taking this view, we find support from the case of Syed Zaiul Hassan alias Thah Peer v. The State (1998 SCM R 1582) in which the cases of Kanwal Nain and Muhammad Afzal Khan (supra) were considered. The Supreme Court of India also took a similar view in the cases of Ramanbhai Ashabhai Patel v. Dabhi Ajitkumar Fulsinji and others (AIR 1965 SC 669 and Tepfulo Nakhro Angami (AIR 1972 SC 43). The decree by the First Appellate Court was in favour of the predecessor-in-interest of the appellants. In the peculiar facts and circumstances of the case, it was not obligatory for him to file an appeal or cross objections before the High Court. He could defend the decree of the First Appellate Court on all the grounds available to him."
14. In view of the above observation of Hon'ble Supreme Court, the findings of the trial Court are found to be invalid and cannot be upheld only because no appeal or cross-objection was filed by the landlords/applicants. The said findings for the aforementioned reasons are set aside and the tenant is found to have subletted the shop in question at different occasions to different persons who have been carrying out business of different nature. The main ground on which the eviction of the tenant was sought was bona fide personal requirement of the respondent No,3, who intends to start business of bookshop in the disputed shop. The tenant challenged the said claim on two scores, firstly that the applicant/landlord No,3 was stated to be already doing business of hotel and secondly that the landlords/applicants have number of other properties in the same vicinity and no reason has been stated for selecting of shop in dispute for his personal bona fide use. The evidence available on the record reflects that the properties owned by the landlords/applicants are not partitioned and that the business is being carried out by whole of them jointly, but no evidence could be brought on record to establish that the hotel is being run by the applicant/landlord No,3, independently and that he cannot establish bookshop simultaneously; whereas the fact that he has no vacant shop available to him for establishing of his own business, could not be disputed. Admittedly the law does not impose any bar on a person to establish a new business despite of the fact that he is already running a business or that he is a wealthy person as no barrier can be put to limit of earning of a person, therefore, having a family business cannot deprive the applicant/landlord No,3 from establishing another independent business. Similarly, it is the choice of the landlord to choose any of his property for his personal use and the said choice cannot be questioned on the ground that no evidence has been produced to show that the said premises or shop is suitable for such kind of business. However, the claim of the landlords/applicants can be attacked only if the same is found to be tainted with mala fide. In the present case, I am unable to detect any mala fide on the part of landlords/applicants, the bona fides of landlord cannot be doubted only because previously he filed an application seeking eviction of the tenant on one of the grounds provided by section 13 of the Balochistan Urban Rent Restriction Ordinance, but failed to prove the same. Above all the right of the tenant is safeguarded by section 13 (4) of Balochistan Urban Rent Restriction Ordinance (VI of 1959) which reads as under:-- "Where a landlord who has obtained possession of a building or rented land in pursuance of an order made under sub-paragraph (i) or sub-paragraph (ii) of paragraph (a) of section 3, does not himself or where the building, has been got vacated for the occupation of any of his children, such child does not occupy it within one month of the date of obtaining possession (or have been so occupied is re-let within two months of the said date of any person other than the original tenant) the tenant who has been evicted may apply to the Controller for an order directing that he shall be restored to possession of such building or rented land and the Controller shall make an order accordingly."
15. Thus having regard to the facts and circumstances of the case in hand and the discussion made hereinabove, I am of the view that the landlords/applicants not only proved that the shop in question is required for personal use and occupation of landlord/applicant No,3 but it was also proved that the shop was subletted by the tenant making himself liable for eviction, hence I find no merits in the appeal, which is dismissed, with no order as to costs.