2024 M L D 1785

[Balochistan]
Before Abdul Hameed Baloch, J
HUNAIN alias Moon---Appellant
Versus
MURAD BAKHSH---Respondent
F.A.O. (T) No. 01 of 2021, decided on 19th August, 2022.
Balochistan Urban Rent Restriction Ordinance (VI of 1959)---
----Ss.13 & 13(2)(1)---Eviction of tenant---Default in payment rent---Rent Tribunal
ordering recovery of outstanding rent alongwith utility bills---Legality---Denial of
relationship of landlord and tenant---Tenancy without written instrument---There was
no evidence to substantiate the contention of the appellant that the premises in
question was rented out by another person, whereas, respondent/landlord through
revenue record proved that he was the recorded owner of the property, which aspect
of the matter had neither been rebutted by the tenant nor any sufficient evidence was
produced to justify his possession in any lawful capacity---Tenant failed to produce
any title document to support his possession over the premises in question, therefore,
Rent Controller was competent to determine the relationship of landlord and tenant
between the parties---Absence of tenancy agreement or rent receipt was not the
determining factor to establish relationship of landlord and tenant and in absence of
any contrary evidence, owner of the property by virtue of his title was presumed to
be landlord and person in possession of the premises was considered as tenant under
the law---Tenancy may not be necessarily created by written instrument in express
terms rather may also be oral and implied---Appellant without any title document had
challenged the ownership of landlord---Such conduct of the tenant was sufficient to
hold him as defaulter of rent---Appeal was dismissed accordingly.
Ahmad Ali alias Ali Ahmad v. Nasar-ud-Din PLD 2009 SC 453; Shajar Islam
v. Muhammad Siddique PLD 2007 SC 45; Makhan Ban's PLD 1984 SC 17 and Zahid
Hussain Khan v. Shams Ullah PLD 2020 Balochistan 78 rel.
Obaidullah for Appellant.
Shabir Ahmed Rind for Respondent.
Date of hearing: 4th August, 2022.
JUDGMENT
ABDUL HAMEED BALOCH, J.--- This appeal under Section 15 of the
Balochistan Urban Rent Restriction Ordinance-VI of 1959 ("Ordinance") is directed
against the order dated 17.11.2021 ("impugned order") passed by the Rent Controller,
Gwadar (trial Court), whereby the application filed by the applicants/respondents was
allowed.
 2. The succinct facts leading to file the instant appeal is that the
applicant/respondent filed an application under Section 13 of the Ordinance before the
trial court for eviction of rented premises against the appellant/tenant on the ground of
default of tenant and recovery for outstanding rent along with utility bills.
3. The appellant/tenant strongly contested the application by filing rejoinder to the
application and denied the relationship of landlord and tenant, stated that he is paying
the monthly rent to the owner of premises namely Tayab Bangali/landlord and has also
spent Rs. 250,000/- on construction of the rented house. The trial court after framing
the issues and having evidence allowed the application vide impugned order and
directed the appellants to hand over the vacant possession of the premises in question
to the respondent/applicant. The appellant being aggrieved of the impugned order filed
the instant appeal.
4. Heard. Record perused. It is pertinent to mention here that one Hunain Ali filed
Rent Application No.01/2017 before the Rent Controller against one Tayyab Bangali.
The learned Rent Controller vide order dated 13.10.2018 disposed of the Rent
Application No.1 of 2017. The relevant para reads as under:
"With the above given reasons, I am of the considered view that, the respondent
No.1 is neither proved to be authorized by the owner not the owner has executed
any power of attorney in favour of the respondent No.1 to eject the applicant
from the premises. Even the said owner was impleaded as party and notice for
the proceedings were also issued to him, yet he did not bother to contest the
matter, I therefore, resolve that, the tenant/applicant cannot be ejected from the
premises by the respondent No. 1 without due course of law."
5. The record reveals that the Rent Controller in Rent Application No.01/2017
clearly stated that the suit premises are owned by Murad Bakhsh (respondent in the
instant appeal). The real owner has not executed power of attorney in favour of Tayab
Bangali.
6. The applicant produced Qadir Bakhsh Patwari as AW-3 who produce the
revenue record, where the Kh/Kh No.66/66 Khasra No.128, measuring 2184 is in the
name of applicant/respondent. Admittedly the respondent is the owner of the premises
in question. The appellant has not assailed the judgment of the Rent Controller, passed
in Rent Application No.1 of 2017.
7. There is no evidence to substantiate the contention of the appellant that the
premises in question is rented by Tayab Bangali. On the other side the applicant through
revenue record proved that he is the recorded owner of the property. The perusal of
evidence indicates that the respondent is recorded owner of the house, which aspect of
the matter has neither been rebutted by the applicant nor any sufficient evidence was
produced to justify his possession in any lawful capacity.
8. So far, the contention of the appellant that the Rent Controller has no jurisdiction
to decide the question of title, even the applicant/respondent failed to prove the
relationship, are not tenable, because the tenant failed to produce any title document to
support his possession over the premises in question. The Rent Controller is competent
to determine the relationship of landlord and tenant between the parties. In the case of
Ahmad Ali alias Ali Ahmad v. Nasar-Ud-Din (PLD 2009 SC 453) it was observed as
under:
"Though the Rent Controller is not competent to determine the question of title
of the property assuming the role of a civil Court, but if the tenant fails to
produce the documentary evidence to support his title over the premises in
dispute the Rent Controller can determine the relationship of landlord and tenant
between the parties. In case the tenant could not establish his possession over
the property in dispute under the sale, he is not entitled to protect the same and
the relationship of landlord and tenant would continue to exist as laid down in
Mst. Azeemun Nisa Begum v. Ali Muhammad (PLD 1990 SC 382)."
9. The absence of tenancy agreement or rent receipt is not determining factor to
establish relationship of landlord and tenant. In the absence of any evidence contrary,
the owner of the property by virtue of his title is presumed to be landlord and person in
possession of the premises is considered as tenant under the law or the tenancy may not
be necessarily created by written instrument in express terms rather may also be oral
and implied. Reference may be made to the case of Shajar Islam v. Muhammad
Siddique PLD 2007 SC 45.
10. The appellant without any title document has challenged the title of respondent,
such conduct of the appellant is sufficient to hold that the appellant is defaulter of the
rent. The appellant in his rejoinder admitted that he did not pay rent to respondent rather
payment was made to one Tayab. The record reflects that the said Tayab is not recorded
owner of the premises in question. In Makhan Ban's Case PLD 1984 SC 17, it has been
observed that "the futility of his efforts to take up a dispute over titl e of the property,
abandoning it at a crucial stage and withholding, rent on that account for over 10 months
showed an element of contumacy and persistency in the misconduct."
11. The learned Rent Controller ordered the appellant to pay arear of rent from
January, 2017 in the sum of Rs.4000/- per/ month till handing over the vacant
possession of premises in question to landlord, which is not correct. In this regard
reliance is placed on the case of Zahid Hussain Khan v. Shams Ullah PLD 2020
Balochistan 78, whereby it has been observed as under:
9. Keeping in view the principle of rent laws the appellant was entitled for the
arrears of rent, but not beyond the period of three years from the date of
inception of eviction application, while the arrears of unpaid utility bills are also
liable to be paid by the respondent, but these aspects of the case were not
properly dilated upon by the rent controller, rather directed the appellant to
approach the civil court for the leftover or declined relief. It is worthwhile to
clarify that though Civil Court is competent enough to try the cases for recovery
of arrears of rent and arrears of utility bills, but the jurisdiction of the Rent
Controller is also not barred under the Rent Laws, rather fully empowers the
rent controller to decide the issue of recovery of outstanding or payable rent and
arrears of utility bills, if any. The Rent Controller to this extent has misapplied
the relevant provisions of the Ordinance 1959, thus, erred in law.
The cumulative effect of the aforesaid discussion brings me to an irresistible
 conclusion that the appellant has proved his entitlement for recovery of the
outstanding and payable arrears of rent, but not beyond the period of three years
from the date of inception of the application, and he was also entitled to demand
the payment of the arrears of utility bills. Therefore, the application is partly
accepted to this extent only, and the respondent is directed, to pay the arrears of
three years of rent till the date of filing the eviction application and for the period
of pendency of eviction application, and also the outstanding amount of unpaid
utility bills. However, the relief to the extent of arrears of enhanced monthly
rent @ 25% after every three years is declined.
In view of above, the appeal being devoid of merits is dismissed.
SA/6/Bal. Appeal dismissed.
;