MUHAMMAD NAZIR Versus MUHAMMAD IQBAL

MRS. IRSHAD QAISER, J.--- Through this single judgment this Court shall also dispose of the Writ Petition No.317 of 2008 and Writ Petition No.103 of 2009 as these are the outcome of the same judgment and decree passed by learned Additional District Judge Abbottabad dated 13-11-2008, whereby the Rent Appeal No.7/RC of 2007, Rent Appeal No.5/RC of 2007 and Rent Appeal No.6/RC of 2007 filed by the parties against the ejectment order dated 29-6-2007 passed by Rent Controller in Suit No.2/RC dated 17-9-2004 were dismissed and the judgment and decree passed by the trial Court (Rent Controller) was maintained.

2. The brief facts of the case are that the petitioner landlord Muhammad Nazir (here-in-after called petitioner) filed the ejectment petition against respondent/tenant Mohammad Iqbal from the suit shop fully mentioned and described in the heading of the petition under Rent Restriction Ordinance, 1959 on 17-9-2004 on the ground of personal need. He also prayed for recovery of damages cause by respondent in the suit shop and for recovery of rent at the rate of Rs.4700 with effect from 1-8-2004 till the disposal of petition.

3. In the petition it is contended that he is land lord and owner of the suit property and the respondent is his tenant at the rate of Rs.4500 per month vide agreement deed dated 19-3-1995 which has been enhanced vide amended agreement deed dated 15-11-1999 to the tune of Rs.4700 per month. That respondent has deteriorated the suit shop, therefore, he is entitled for recovery of damages caused by respondent to the disputed shop. It is further alleged that the suit shop is required to him for his personal need to run his business as he is jobless. Since his arrival from Saudi Arabia he required the suit shop for the personal need and as respondent had caused damaged to suit property, therefore, he was asked time and again to pay the outstanding rent along with damages and to deliver the possession to the petitioner so that he may be able to start his business but he denied, hence, he was compelled to file ejectment petition against him.

4. The respondent was summoned who attended the Court and contested the petition both on legal and factual ground by filing his written statement and contended that the suit shop was given to him on rent for a period of 20 years through an agreement executed in the year 1995 and it is based on mala fide and personal enmity and the suit shop is not required to him for personal need. That neither he is rent defaulter nor had damaged the suit property rather he spent Rs.50000 on decoration and had improved the value of the property. The learned trial Court reduced the pleading of the parties in to ten issues.

5. After recording pro and contra evidence the learned Rent Controller vide judgment and order dated 29-6-2007 disposed off the ejectment petition in view of the terms that respondent has to wrap up his business within five years and handover the suit property to petitioner and such period start from the date of announcement of order i.e. 29-6-2007. Against this order both the parties filled their respective rent Appeals Nos.5, 6 and 7 of 2007, which also met the same fate vide judgment and order dated 13-11-2008, hence the present writ petitions.

6. We have heard learned counsel for the parties and perused the record with their assistance.

7. It is proved from record that petitioner Muhammad Nazir is the owner of the suit shop and Mohammad Iqbal respondent is his tenant. The relationship of landlord and tenant exists between the parties. The execution of agreement deed dated 19-3-1995 and 15-11-1999 have also been admitted by the parties.

8. The main question for determination is that when the suit shop is given by petitioner to respondent for specified period of 20 years, now he has the right to vacate the same before the completion of period as he needs the same for his personal need? and whether respondent has deteriorated the suit property?.

9. Now we have to see and determine the contention of petitioner in the light of rent deed Exh.P.W.3/1 and subsequent deed Exh.P.W.9/D-1. According to the term of rent deed it has been executed between the parties for a period of 20 years. Qazi Mohammad Saeed who had drafted the agreement deed dated 19-3-1995 Exh.P.W.3/1 admitted in his cross examination:--

10. Thus, it is also admitted fact that P.W.3 had added the words of personal need on his own and it is not the requirement of the parties as it is executed for 20 years. Similarly subsequent agreement deed Exh.P.W.9/D-1 in respect of enhancement of rent with 5% increase after every five years is also silent about the stipulation that in case the subject shop was needed to the petitioner for carrying his personal business then the respondent would be bound to deliver vacant possession of the suit shop to petitioner. Now the legal question involved in this case is that whether petitioner is entitled to get the possession of the suit shop before the completion of stipulated period.

11. At this stage it would be appropriate to reproduce the relevant provision of section 13(3)(a) of Urban Rent Restriction Ordinance 1959:--

Section 13(3)(a). A Landlord may apply to the Controller for an order directing the tenant to put the landlord iu possession---

(i)

(ii) In the case of a non-residential building or a scheduled or rented land, if--

(a) He requires it in good faith for his own use or for the use of any of his children;

(b) He or his said child is not occupying in the same urban area in which such building is situated for the purpose of his business any other such building or rented land, as the case may be, suitable for his needs at the time; and

(c) He has not vacated such a building or rented land without sufficient cause after the commencement of this ordinance in the said urban area:

Provided that where the tenancy is for a specified period agreed upon between the landlord and the tenant the landlord shall not be entitled to apply under this subsection before the expiry of such period:

12. According to the terms of agreement Exh.P.W3/1 dated 19-3-1995 the intention of the parties is clear that tenancy was for a specified period of 20 years. Thus the first proviso of section 13(3) of Ordinance applies and the plain meaning of the proviso is that if the tenancy is for a particular period, then the landlord cannot evict the tenant before the expiry of that period, except of course on the ground of damage, subletting, nuisance but certainly not on the ground of personal need. Reference in this respect is made to 2001 YLR Quetta 1979 wherein it is held that where the tenancy is for particular period and the eviction application against tenant on the ground of personal requirement is not even competent. Reference is also made to 1984 CLC Lahore 3011 wherein it is held:--

"That ejectment sought on the ground that property in occupation of tenant was required by landlady in good faith for reconstruction described to be beneficial to interests of her family---Premises given on rent under a lease deed for a fixed period of ten years---Held, attempt to frustrate solemn commitments made in lease agreement guaranteeing settled peaceful possession to a tenant for fixed period of ten years could not be allowed to succeed under cover of a plea for constructing a chaubara on roof top of shop for use of son of land lady---Such premises could not be got vacated in any circumstance on ground of personal need either for landlady or for her son before expiry of period fixed in lease agreement.

Reference may also be made to PLD 1961 SC 28, PLD 1982 SC 201, 1980 SCMR 41, PLD 1981 SC 246, and PLD 1983 SC 342.

13. Since the term of agreement is for specific period of 20 years therefore, under first proviso the tenant cannot be evicted before its completion on the ground of personal need. Beside, on merit the petitioner could not prove his bona fide personal need through cogent evidence. Reference is made to PLD 1985 Karachi 624 wherein it is held:--

"The land lord has to make out a case for his requirement of the premises in good faith. For this purpose he must place before the Rent Controller all the necessary details which are required for granting relief. A mere ipse dixit of the land lord that he requires the premises for his personal occupation or use is not enough".

14. So far as the question of non-payment of rent in respect of subject shop that he is defaulter in payment of rent since August 2004 is concerned both the Courts have rightly held that petitioner failed to prove this fact through iota of evidence so much so that his own statement as P.W.9 is also silent over the alleged fact.

15. The last contention of petitioner is that respondent has destroyed the status of suit property by causing damage to it. This contention is denied by respondent and contended that he had improved the value of the suit property with the consent of petitioner and spent huge amount on it. In order to confirm the condition of suit shop learned trial Court appointed a commission on the joint request of the parties and he submitted his report Exh.CW-1/1 wherein it is confirmed that respondent has not caused the damage to suit property rather had improved the status/market value of suit property. This report of commission has not been challenged by petitioner.

16. The petitioner landlord has not been able to substantiate his claim by producing convincing, cogent, reliable and confidence inspiring evidence. Thus the Courts below have legally and correctly appreciated the evidence produced by the parties and rightly rejected the claim of petitioner. The concurrent findings rendered by both the Courts below, except the finding in respect of handing over the possession of five years to petitioner, are based on correct appreciation of evidence and law applicable thereto. No misreading and non reading of evidence or jurisdictional error was pointed out by the counsel for petitioner in Writ Petition No.316 of 2008 and Writ Petition No.317 of 2008 titled Muhammad Nazir v. Muhammad Iqbal. Thus both writ petitions being without substance are hereby dismissed.

17. Since the agreement Exh.P.W.3/1 is for twenty years therefore the findings of Courts below in respect of handing over the shop within five years are not correct. Thus, Writ Petition No.103 of 2009 titled Muhammad Iqbal v. Muhammad Nazir is admitted and allowed and this portion of the orders of both the Courts below are set aside. No order as to cost.

JJK/557/P Order accordingly.