P L D 1977 Karachi 221 (PLP)

This Revision under section 25 of the Provincial Small Causes Court Act, 1817 is against the judgment and decree dated 31‑7‑1970 passed by the Judge of the said Court at Karachi in Suit No. 877/69 dismissing tie suit of the petitioner against the respondent for recovery of Rs. 5,000 as balance of rent, charges and cost of damage to the rented property.

2. By a Lease Agreement executed on 5‑7‑1966, the respondent agreed to take on lease from the petitioner the back portion of the petitioner's bungalow on plot No. B/19/1 situate in K. D. A. Scheme No.

1. Drigh Road, Karachi including fixtures and lawn for a term of two years from date of occupation on a monthly rent of Rs. 1,

600. The rent for the first year was payable in advance. The respondent paid Rs. 9,600 being six months' advance rent at the time of signing of the Lease Agreement and agreed to pay the balance of the advance rent on the date of occupation. Under clause 3 of the Lease Agreement, the respondent lessee covenanted to pay to the petitioner/lessor all charges in respect of electricity and gag consumed by the respondent and half of the total hill received for water and conservency charges. After the expiry of one year of the tenancy the respondent/lessee was to pay the rent on month. to month basis in advance for the remaining period of the lease. The respondent went into occupation of the premises on 12‑7‑1966.

3. As the respondent had defaulted in payment of the rent for the months of May to August, 1968, the petitioner instituted ejectment proceed ings against the respondent under section 13 of the West Pakistan Urban Rent Restriction Ordinance. 1959. The application was allowed and an order of ejectment was passed against the respondent by the Rent Controller on 8‑5‑1969. The respondent then surrendered the premises to the appellant on 9‑7‑1969. As there was a balance of rent and charges outstanding against the respondent, the petitioner filed the suit claiming a total amount of Rs. 5,498. 84 on account of the following four items viz.; (a) Rent Rs. 3,303.17. This included the balance of rent for the month of July, 1967 amounting to Rs. 103.17, and Rs.1,600, as rent for each of the months of June and July, 1969 totalling Rs. 3,200, thus making a grand total of Its. 3,303.17. (b) Water, electric, gas charges amounting to Rs. 669.67 for stated period ; (c) Cost of replacement of six shades, shower repair, renovation of lawn and repair of floor on main passage, totalling Rs. 770. (d) Conservancy and water charges for 1967‑68 and 1968‑69 amounting to Rs.

756. The petitioner gave up Rs. 498.84 out of the sum claimed and confined her claim to Rs. 5,000 and filed the suit in the Court of the Small Causes.

4. The respondent firm in its written statement pleaded that the Agreement of Lease dated 5‑7‑1966 was a nullity in law for want of registra tion and that the petitioner's suit based on it was liable to be dismissed. However, the respondent admitted occupation of the premises on rent, but pleaded that it had paid all the rent due and no rent was outstanding. It denied its liability to pay the water, electricity and gas charges and also denied the alleged damage to the premises except for cost of replacement of 6 lampshades and cost of repair of shower amounting Rs.

70. Finally it denied the liability to pay the conservancy charges.

5. The learned Judge settled the following three issues :‑ (1) Whether the amount claimed by the plaintiff on various items is recoverable from the defendants herein ? (2) Whether the possession was delivered by the defendant on 9‑7‑1969? (3) What should the decree be ?

6. After examining Dr. Fakir Mohammad husband of the petitioner (P. W. 1) and Syed Baqar Ali Shah (D. W. 1) partner of the respondent firm, he dismissed the petitioner's suit on the ground that the Lease Agreement (Exh. 9) purported to create a lease of the premises for a period of two years, and by section 107, Transfer of Property Act 1882, it required registration under the Registration Act, 1908. It was also insufficiently stamped under Article 35 of the Stamp Act, and as such, Exh.9 was inadmissible in evidence. Therefore, he dismissed the petitioner's suit based on this document as not maintainable. However, in dismissing the suit, the learned Judge observed that the petitioner was at liberty to have recourse to another suit by way of damages for use and occupation. Being aggrieved thereby the petitioner filed this Revision Petition under section 25 of the Provincial Small Causes Court Act, 1887.

7. Mr. Zahoorul Haq, learned counsel for the petitioner made the following submissions (1) Exh. 9 is an agreement to lease and it has wrongly been construed as a lease by the learned Judge; (2) Even if (Exh. 9) is held to be a lease and compulsorily registrable in order to operate, or create any right or interest in immovable property, yet the unregistered document is admissible in evidence for a collateral purpose ; (3) The respondent‑firm having admitted the tenancy and the rent payable, it must be deemed to have held the premises on a month to month lease.

8. With regard to the first submission, Mr. Zahoorul Haq referred to the words in the second recital in the lease agreement Exh. 9, namely, the lessor had "agreed to give on. lease and the lessee had agreed to take on lease", as indicating that the document is an agreement to lease to come into effect in future and not a lease itself. It is a well‑established rule of construction of documents that recitals in a document cannot b referred to in order to construe the operative part of the Deed except in cases of ambiguity, in my opinion there is no ambiguity in constructor; of the operative part of the Lease Agreement. Counsel then laid great stress on clause (1) of Exh. 9 which stipulated that "the lessor shall grant and the lessee shall accept a lease." and submitted that these words expressed the intention of the parties to grant and accept a lease in the future, especially as it was stated that the lease was to commence from the date of occupation. These words were held by Dorab Patel, J. (as he then was) in Mst. Shirinbai v. Saleem Jamal (P L D 1970 Kar. 657) as words which ordinarily operate to create a demise. With respect I agree. An examination o the document as a whole leaves no doubt in my mind that it created a lease for two years and that the conclusion reached by the trial Judge is correct. In the first place, all the terms and conditions relating to the lease have been mentioned in the document itself and there is no reference to a formal lease which was to be executed at a later date. It is nobody's case that, at any time, any of the parties demanded execution of a formal lease. It is also significant that a substantial part of the rent was received by the petitioner upon the signing of the agreement and the balance, an equally substantial amount, was payable a few days later, on the date of occupation. The document also refers to the lease agreement as "this lease" in several clauses. It is also signed by both the lessor and lessee like an ordinary lease. Although the period of lease was to commence from the date of occupation at a future date, nevertheless a document may operate as an immediate demise. The true test is to construe the intention of the parties, which is to be gathered from the document as a whole, as well as from the circumstances in which it was executed and from the conduct of the parties, I am therefore, in agreement with the conclusion reached by the learned trial Court that the lease agreement was in effect a lease and it created a present demise of the premises and an immediate right in the respondent to be a tenant from the date of his occupation, and, as it was not registered, it did not operate to create any right or interest in the premises, therefore the claim of the petitioner in so far as it is based on the said document is unenforceable. The petitioner's claim under items (b) and (d) above mentioned are based on the inoperative lease agreement (Exh. 9) namely, clause 3(a) and (b). As such these claims must be rejected.

9. With regard to the remaining two items (a) and (c) of the petitioner's claim above mentioned, relating to balance of alleged rent due and cost of replacement of fittings and damage to premises respectively, Mr. Zahoorul Haq supports these claims on the argument that Exh. 9, even if unregistered, could be used for a collateral purpose under section 49 of the Registration Act (as amended in 1962) for showing the nature of the respondent's possession. In this connection, he cited the observations of the Division Bench of the erstwhile High Court of West Pakistan in Moosa and others v. Muhammad Yakoob and others (P L D 1966 Kar. 370) and the observations of the Supreme Court in Abdul Karim v. Mirza Bashir Ahmed (P L D 1974 3 C 61). It is however, not necessary for Mr. Zahoorul Haq to rely on this principle of law because, according to his third submission, the nature of possession of the respondent has been admitted to be that of a tenant, 1n the written statement in paragraph 1, the respondent admitted that it j‑ ad occupied the premises on rent. Therefore, the tenancy had been admitted by the respondent. In paragraph 2 of the plaint, the petitioner claimed that the agreed rent was Rs. 1,600 p. m. The respondent has not specifically denied the rate of rent and under Order VIII, rule 5,. C. P. C. it shall be taken to have been admitted. In fact, the respondent pleaded that they had paid all the rent due. Moreover, in the proceedings before the Rent Controller, both the tenancy as well as rate of rent had been admitted by the respondent. That being the case, the respondent was bound to pay the agreed rent. That obligation of law arises under section 108(1) of the Transfer of Property Act, 1882 In the absence of contract. That subsection states that in the absence of a contract to the contrary, the lessee is bound to pay or tender the rent to the lessor. However, I find that the learned trial Court has not given any finding on item (a) or (d) of the petitioner's claim. Item (a) relates to balance of rent due for the month of July, 1967 and the rent due for the months of June and July, 1969. As the respondent had denied that any rent remained due, the learned trial Court should have given a finding on this question in issue.

10. With regard to the last item (d) of the petitioner's claim, here' again, the obligation of the respondent tenant arises under section 108 (m) of the Transfer of Property Act. Under it, the lessee is bound to restore the property to the lessor on the termination of the lease in as good condition as it was at the time when he was put in possession subject to only reasonable wear and tear or irresistible force and if any defect has been caused to the premises by any act or default on the part of the lessee, his servant or agents, he is bound to make it good within three months after notice has been given. This obligation of law arises in the absence of contract. The respondent bad admitted in the written statement its liability for cost of replacement of six shades at Rs. 50 and cost of repair of shower at Rs. 20, but denied tae liability for the damage to the lawn and the repair to the floor in the main passage. Here again there has been no adjudication of this question by the trial Court.

11. Mr. Zahoorul Haq referred to the analogous provisions relating to appeals in Order XLI, rule 24, C. P. C. which provide that where the evidence upon the record is sufficient, the Appellate Court may finally determine the suit. He submitted that the two items may be finally deter mined by me. However the depositions of the witnesses are not in the R & P forwarded to this Court, presumably because the evidence was recorded in a separate register. Nor has the petitioner filed certified copies of the same. Moreover, it is primarily the function of the trial Court to adjudicate on a question of fact. It would therefore be necessary to remand the, case to the trial Court for decision on items (a) and (d) of the petitioner's ~ claim in suit, after affording a hearing to the parties. Accordingly, the impugned judgment and decree are set aside and the case is remanded for decision on items (a) and (d) of the petitioner's claim in suit.

12. As success is divided, would leave the parties to bear their own costs. S. A. H. Order accordingly