MUHAMMAD ZAKRIA KANSI Versus DR. BASHIR AHMED

This appeal is directed against the Order dated 3-7-1999, passed by learned Civil Judge III cum Rent Controller Quetta, whereby eviction application filed by Appellant has been disallowed on the ground of default in payment of rent and personal requirement.

2. Facts briefly stated are that on 15-3-1997, appellant filed an application for the eviction of respondent from shops bearing No.5-12/59(13) 1051-F and 5-12/59(,14)1051-G; situate at Al-Yahya Plaza, Quary Road Quetta,- on the grounds of (i) default in payment of rent from June, 1996 till filing of eviction application 15-3-1997 and (ii) requirement of premises for his personal use.

3. Respondent filed written statement on 4-4-1997 and resisted the same on legal plane as well as on merits. It is important to point out here that the landlord in eviction application claimed the rent at the rate of Rs.600 per month for each shop but the plea of tenant is that the agreed rent is Rs.400. It was further alleged that originally one of the shops bearing private No-6 was let out to one Haji Fateh Muhammad, after receiving goodwill amounting to Rs.1,00,000 (Rupees one lac only) which was subsequently obtained by the respondent after payment of Rs.2,00,000 (Rupees two lacs only) to said Haji Fateh Muhammad, with consent -of the appellant. Regarding other shop bearing private No.7, the case of respondent is that the same was let out to him by the applicant after receiving a sum of Rs.2,10,000. Further defence set up by respondent is that story of personal requirement has been cooked in order to evict the respondent, inasmuch as, appellant wanted to enhance rate of rent to which the respondent declined but since the appellant was not accepting the rent, therefore, the same was deposited in Court after obtaining percussion.

4. On the pleading of parties following issues were framed on 26-5 1997:--

(9) What is actual rate of rent of disputed property?

(ii) Whether respondent has failed to pay rent of disputed property since January, 1996 up-to-date.

(iii) Whether respondent has paid amount of Rs.2,00,000 and Rs.2,10,000 as Pagri with undertaking that applicant will not claim vacant possession of disputed property from respondent?

(iv) Whether applicant requires disputed premises for establishment of milk business for his personal bona fide use and occupation?

(v) Relief ?

5. Appellant/landlord produced A.W.1 (Malik Dawood), A.W.2 (Malik Yahya) apart from himself to prove the factum of default and personal requirement: whereas respondent examined R.W.1 (Haji Fateh Muhammad), R.W.2 (Muhammad Zaman), R.W.3 (Muhammad Asif), R.W.4 Noor Ullah, R. W.5 Abdul Rehman, apart from his own statement.

6. Learned Controller on the appraisement of the evidence adduced by the parties, decided issues regarding personal requirement and default against the landlord. He further concluded that agreed rate of rent was Rs.400, by means of Judgment dated 3rd July, 1999. Present appeal has been filed challenging the same.

7. I have examined the respective contentions as agitated on behalf of parties, in the light of relevant provisions of law and record of the case.

8. Coming to the point as to what is actual rate of rent of disputed property, the learned Controller on the basis of material available on record concluded that rate of rent is Rs.400 per month. I have no reason to take a different view for the simple reason that there cannot be more relevant evidence on the point, than the statement of landlord himself, inasmuch as, though in examination-in-chief, he claims rent at the rate of Rs.600 p.m. yet in cross-examination he answered as under;--

9. At this stage, it is pertinent to point out that eviction applicant was filed on the ground of default from January, 1996. So it means that agreed rate of rent was Rs.400 per month but the landlord at his own increased the rent from Rs.400 to 600 of all the shops and flats whereas other tenants (might have) agreed, respondent did not. So agreed rent remained the same. This conclusion also gets support from the statement of R.W.1 (original tenant of one of the shops) who has stated that rent of his shop was Rs.400 per month, and whose statement has not been challenged in cross- examination. Further it appears from record that rent receipts were not being issued.

10. Reverting to ground of default, the details of deposits made by tenant are as under

Date of deposit Period

5-3-1996 January 1996 to June, 1996

26-6-1996 July, 1996 to December, 1996.

19-12-1997 January 1997 to June, 1997.

The landlord filed eviction application on 11-3-1997 and claimed default from January, 1996. The tenancy is oral, and therefore, rent of January, 1996 became due on 31-1-1996 and could be lawfully tendered/deposited within 60 days (up to 31-3-1996) but the same was deposited much before target date. So, there is rib default.

11. As for as issue of 'Pagri', after considering the evidence available on record, it is admitted feature of the case that appellant was owner of a piece of land. He approached a Contractor, who was requested to raise a building but nothing was paid as he was allowed to raise funds from would be tenants (including his profit). Accordingly, the Contractor recovered Rupees one lac as Pagri (or cost of construction) against each shop, but with the consent of landlord. Appellant admitted that he did not contribute and allowed Contractor to collect money. So it was not "PAGRI" as is understood in common parlance but the tenant has purchased something more than mere tenancy rights, inasmuch as, 'at the relevant time shops did not exist. It was because of nature of transaction that landlord willingly relinquished some of his normal rights and rendered himself ineffectual because he has imparted to- the tenant something more than the tenancy rights and acted as helpless spectator, when the tenant sold away his "Pagri" rights to another tenant. In the peculiar circumstances of case, tenant bore the expenditure of superstructure. In this case, the plea of respondent is that R.W/1. Haji Fateh Muhammad, was original occupant, who paid a sum of Rupees one hundred thousand only. Adding further, that possession was passed on to him, after receiving Rupees two lacs, but with the consent of appellant. Statements of respondent and R. W.1 get support even from the statement of landlord, who in cross-examination stated that:

About other shop (private No.7) whereas the case of respondent is that he had paid Rs2,10,000 to appellant, the latter's contention is as tinder:--

The tenant, when appeared in witness-box re-affirmed his stand but even if it is believed that Shop No.7 was in possession of Contractor, obviously he could not give the same to respondent without obtaining amount. The contention of respondent that he was inducted into shops, after payment (either to landlord or with his consent to another) also gets support from following suggestion put to respondent in cross-examination:--

The counsel for appellant during arguments not only repeated afore mentioned's offer of his client but subsequently also gave in writing that his client is willing to make the payment, subject to vacant 'possession. Unfortunately, matter could not be materialized.

12. The above discussion was not only necessary for the reason that issue No.3 was specifically formulated and my findings are in affirmative but it will certainly be a circumstance detracting from his bona fide which, together with the other circumstances of the case, will be taken into account for deciding the over all question of personal need. It may be noted that respondent claims that he was inducted into one of the shops in question in October, 1994 (after payment of Rs.2,00,000) and in other shop in March 1995, (against Rs.2,10,000), so question for consideration is; whether mere desire, wish, whim or convenience of landlord would be sufficient or in the peculiar circumstances of this case, the evidence produced by landlord needs strict scrutiny, in order to find out his good faith. Needless to add, that if a landlord himself receives huge amount wt the time of induction of tenant or allows sitting tenant to do so, with his consent then normally he cannot be allowed to seek eviction on the ground of personal requirement (in this case after 2 to 2-1/2 years), unless he proves his case to hilt. With this background, I would examine the case of appellant. It is important to point out that whereas application for personal requirement was filed for establishing milk business, appellant's brother (A.W.1 & A.W.2) stated that appellant is already running a Dairy on the rare side of shops, and therefore, shops are required for extention of said business, inasmuch as, appellant wants to open a milk shop and an office. But appellant though in cross examination took the plea that he deals in milk business (Australian Buffaloes for the last two years but clarified that he (presently) sells Buffalos but intends to extend it to milk business, in future and for such reason shops are required. Even in normal cases, settled law is that statement of landlord on oath, consistent with his averments made in the ejectment application and not shaken in cross-examination is sufficient but in e this case, in the ejectment application, it was not pleaded that shops are required for extension of already running business. I am aware that principles of pleadings are not strictly applicable in rent matter but since the landlord was already running various businesses and owns huge number of properties, therefore, he was required to plead sufficient facts as to put the other side to notice of the case, which he is called upon to meet (refer PLD 1991 SC 265). Since the landlord failed to establish that he is factually running a Dairy business, therefore, question of opening of milk shop and office at the time of filing of eviction application/making statement in Court did nor arise: It is further important at this stage to point out that stand of respondent is that factually appellant is neither running any Dairy business nor deals in buffaloes but the story has been concocted in order to make out a case. It is also their case that appellant, who had been a Mayor, President of Chamber of Commerce and Provincial Minister cannot possibly run Milk business as he deals in construction, import and exports, properties and agriculture, which facts have not been disputed. It is also their case that as in the said location, people are- running Dairies and Milk business and appellant is in possession of land on the rare side of shops in dispute, therefore, the plea of Dairy was introduced with a mala fide intention to dispossess him. Legally there is no embargo upon a person to enter into a new field, despite the fact that he is a millionaire and/or running various businesses. But in this case, question is not of his mere need (may be to earn more) but whether the requirement or need is an honest or bona fide one. A.W.1 (his real brother) admitted that appellant is running a construction business in the name of C Golden Construction Company., in the same building, which has been denied by A.W.2 (another brother). Though appellant admitted existing of said office in the same building but took the plea that now said office is being used as a meeting place. It has come on record that appellant owns huge open plot in the same locality. To judge the good faith, it has also been noted that appellant at his own re-fixed the rent from Rs.400 to Rs.600 and as respondent did not agree presumably for the reason that he had paid huge amount 2/2-1/2 years ago, the landlord apparently refused to accept the rent, leaving the respondent with no option but to deposit in Court (luckily within time). And it appears that the appellant who has been hunting for some round to seek eviction of respondent at all cost with mala fide and ulterior motives, therefore, pleaded the ground of default alongwith one-sided enhanced rate of rent, apart from personal need. He got constructed another plaza having five shops and flats and let it out to various tenants during the pendency of eviction application or immediately before the filing of application. On this behalf, the stand of respondent is, that newly constructed shops were at a walking distance of 7/8 feet and it is interesting to note that on this point appellant in cross-examination stated that "I could not say that distance between shops in dispute and newly constructed shops is 10 feet", despite the fact that he also runs a construction company. No doubt, it is I privilege of the landlord to choose any one of his properties for self-use considered by him suitable for his requirement, provided always that his I needs is not tainted with mala fide. So it was obligatory on the part of. landlord to explain that newly constructed shops were not suitable to his need. To the contrary, he and his witness (real brothers) kept on denying that appellant does not possess any shop in locality/city. He has also got vacated property from Kalay' Khan but did not use. Landlord has admitted that he has instituted separate eviction application against Banarus, Gulraz and Imroz but clarified that same are on the ground of construction, adding further that he would re-let to them after reconstruction, as per prevailing market value. Besides, he has also instituted eviction application against one Sher Afsar on personal requirement, which is pending. On assessment of the evidence, it would appear that appellant has been carrying on varieties of business, was in possession of shops near disputed shops but let out and no explanation was furnished that same were not suitable for intended purpose. Besides, the plea of existing dairy and for extension of business was not pleaded. Over anti above, it has not been established that factually he is running a dairy on the rare side of shops., The respondent; who came into possession after payment of huge amount in the manner hereinbefore mentioned, cannot be evicted on the mere wish of appellant. It is also against 'JUSTICE' and object of rent law. it is a case of suppression of material facts. The veracity of the appellant is shaken and his evidence is not confidence inspiring whereas the evidence of respondent is consistent and confidence inspiring. Further, on the basis of material on record, I have not found sufficient material to disturb the conclusion arrived at by Controller.

13. I have also considered the offer of landlord to return the amount of 'Pagri', subject to vacant possession. But as tenant did not accept the offer, therefore, matter could not be materialized. Further, as an appellate authority under Rent Restriction Law, I tray not be competent to assess the value of superstructure or decide such question.

14. For the foregoing reasons, 1 hold that what the evidence showed was mere assertion and fell short of proof required to establish that the respondent in good faith required disputed premises.

The appeal has no merits and accordingly dismissed. There will be no order as to cost.

H.B.T./58/Q Appeal dismissed.