P L D 1986 Karachi 16 (PLP)

This First Rent Appeal is directed against impugned order of ejectment, dated 30‑10‑1982, which is passed by Senior Civil Judge/Rent Controller No. XII, Karachi on the ground of personal need. Briefly stated the relevant facts giving rise to this appeal are that respondent before me namely Mumtaz Ahmad (who will be referred hereinafter as Landlord) made an application under section 13 (I) (3) (1) of West Pakistan Urban Rent Restriction Ordinance, 1959, against Muhammad Hanif hereinafter to be referred as tenant) for eviction on the grounds of default and personal need. Accommodation in question is residential and there was no dispute between the parties with regard to the rate of rent. Tenant contested the proceedings before the Rent Controller and filed written statement in which the allegations of landlord were denied. Landlord examined himself and the tenant examined himself and his father Habib Bhai. After assessment of evidence brought on the record by the parties, the learned Rent Controller found issue regarding default against the landlord as not proved but gave positive finding with regard to Issue No. 2 relating to the requirement of premises in question for personal bona f de need of the landlord and consequently allowed eviction. The tenant being aggrieved against the order of eviction has filed this First Rent Appeal as stated above. It would be worth while to mention that ejectment application was filed on 12‑11‑1976 and written statement was tiled on 30‑3‑1977. At that time old law namely West Pakistan Urban Rent Restriction Ordinance, 1959 was applicable. Landlord was examined under the old law and thereafter tenant and his witness were examined under the new law namely Sind Rented Premises Ordinance, 1979, by which the old law was repealed. In the circumstances since the case filed under the old law was pending at the time of repeal of previous rent law, substantive rights the parties, would be governed by the provisions of the previous rent law. On the issue of presonal need, the case of the landlord is that he is residing in a rented house alongwirh his aged ailing parents and requires the accommodation in dispute for his personal use. In the evidence before the Rent Controller, the landlord stated that‑his family consisted of his father, mover, wife and two children and he lived in a rented ' house which consists of three rooms. While on the other hand disputed premises consist of five rooms. Landlord further stated that when he rented out accommodation in question, he was at that time not married. On the other hand, the case of the tenant is that need of the landlord is not bona fide for the reason that similar accommodation on the first floor became vacant but the landlord did not occupy the same and let it out. On behalf of the tenant my attention has been drawn to the admissions made by the landlord in his cross‑examination before the Rent Controller and relevant paragraph from the cross‑examination of the landlord is reproduced hereunder:‑ "One Samad occupies the Ist floor for 2J years at Rs. 200 p. m. Umer used to live prior to Samad therein. There was no tenant before Umar to my knowledge. I am owner of the premises in the case. The size of accommodation is more or less the same on ground floor and first floor. It is a fact that in 1978 premises of the first floor were vacated but I did not occupy it and rented out to Samad." It was argued on behalf of the tenant before me that Samad also vacated rented accommodation on the first floor which was let out b%, the landlord to Farooq and subsequently Farooq also vacated that accommoda?tion which is right now available with landlord but he is not occupying the same. This later development as stated above is not put to the landlord in the cross‑examination in his evidence before the Controller but this fact is asserted by the tenant in his affidavit of evidence filed before the Rent Controller and Mr. Khuda Bux Umrani, Advocate for the landlord admitted this fact in writing by way of statement on behalf of applicant. dated 1‑8‑1982, which is to the effect that the counsel admitted on behalf of landlord that one Farooq was residing on the first floor as tenant of the landlord. Subsequently during the arguments of appeal, Mr. Mirza, Advocate for the tenant stated that tenant Farooq also has vacated premises on the first floor of the building which is at present lying vacant with the landlord. Tenant had filed affidavit to this effect. Landlord who was present in the Court, on enquiry admitted this fact to be correct that at present accommodation on the first floor of the building is lying vacant as Farooq has vacated the same. The thrust of the argument raised on behalf of the tenant before me is that in actuality the indisputable fact is that the landlord has accepted the "Pagri" (goodwill) from the tenant of about Rs. 60,000, at the time of induction of the tenant into possession. Such plea is taken by the tenant in the written statement and it is further stated that when "Pagri" was accepted by the landlord, no separate receipt was issued but an agreement was executed by the parties, according to which landlord had undertaken not to evict the tenant but allowed that tenancy could be changed with the consent of the landlord. Photostat copy of this agreement of lease dated Ist June, 1972, is available on the record but is not exhibited. I have perused the contents of this agreement and find that firstly it is intended to be operative for indefinite period and secondly there is no men?tion in it of acceptance of "Pagri" by the landlord. Since this agreement is for more than eleven months, as such it is registerable and since it is not registered, perhaps for that reason it was not exhibited in the record of the Court. There is no specific mention in this agreement about acceptance of 'Pagri" but clauses 6 and 7 do provide in unequivocal terms that Lessor shall not eject the Lessee under any circumstances and. Lessee shall have the right to transfer the lease to any person with the consent of the Lessor. These two clauses mentioned above clearly manifest intention of the parties that "Pagri" was given and accepted which fact is not specifically mentioned but proper cover is provided in the agreement that tenant cannot be evicted and tenant is allowed to transfer the tenancy g to another tenant with the consent of the landlord. My attention has been drawn to the cross‑examination of the tenant before the Rent Con?troller in which a suggestive question was put to the tenant on behalf of the landlord to the effect whether he would vacate the premises if ?goodwill" amount was returned to him and the tenant replied in negative. This was done perhaps for the reason that agreement of lease was executed by the parties on Ist June, 1972, when the tenant was inducted into possession and "Pagri" of Rs 60,000, was paid and between that date‑1 and today on account of ever increasing inflation, value of money is considerably affected. Rs. 60,000, invested! in 1972 would be worth much more rather many times more now. This explains reluctance on the part of the tenant to part with possession of the tenement on terms suggested by the landlord. Now since the real facts have surfaced, the question, which arises for consideration, is whether landlord after having accepted "Pagri" in respect of the tenement is legally entitled to seek relief under the provisions of West Pakistan Urban Rent Restriction Ordinance, 1959. The answer is no for a variety of reasons. "Pagri" or "goodwill" as is understood iii common parlance connotes the sense that tenant had paid a very large sum of money, which is totally disproportionate to the rate of rent in order to purchase something more than tenancy rights, which are somewhat near to ownership rights and tire landlord also by accepting "Pagri" willingly relinquishes his ownership rights as such and then the parties in order to maintain facade of the relationship of landlord and tenant in order to be called as such agree on very low rent, which is nominal in nature which is paid and landlord issues receipts for payment of such low rent. After accepting "Pagri" landlord renders himself ineffectual because he has imparted to the tenant something more than the tenancy rights and acts as helpless spectator when the tenant sells away his "Pagri" rights to another tenant and the landlord cannot raise any objection to it but has to agree to change receipt in the name of new tenant for which be gets some additional money. Above stated practice of "Pagri" has no cover of approval in the West Pakistan Urban Rent Restriction Ordinance, 1959. The very preamble of the said Ordinance shows that the emphasis is on restricting the increase of rent in the public interest. Practice of "Pagri" is direct violation of the preamble of the said Ordinance and produces relationship between the parties which is entirely, different from the relationship of landlord and tenant as contemplated under the provisions of the said Ordinance. The intention of the said Ordinance is quite obvious that fair rent should be fixed and rights of both the parties should be safe?guarded. "Pagri" completely nullifies the concept of fixation of fair rent. Section 7 of the said Ordinance prohibits in express terms that no landlord shall, in consideration of the grant, renewal of continuance of a tenancy of any building or rented land, require the payment of any fine, premium or any other like sum in addition to the rent. Acceptance of "Pagri" by the landlord is clearly covered by "any other like sum in addition to rent". The expression "any other like sum" should be understood ejusdem generis to the "premium". Any agreement providing for "Pagrr" would be hit by prohibition contained in section 7 of the said Ordinance and such agreement would fall within the ambit of section 23 of the Contract Act. In these circumstances such agreement giving cover to "Pagri" would be unenforceable for the reason that consideration or object of it is forbidden by law or is of such a nature that if permitted it would defeat the provisions of law. It can therefore be said that "Pagri" is prohibited by section 7 of the West Pakistan Urban Rent Restriction Ordinance, 1959, and if there is any agreement between the parties on that account, then the relationship between the parties is different and is not same as contemplated under the provisions of the above said Ordinanc and the landlord cannot claim relief ,which is available under th provisions of the said Ordinance Doctrine of Estoppel also would operate against such landlord who has accepted "Pagri". The view stated above finds full support from the' decisions in the case of Afohan Chand v. Manindrs Nath (AIR1955Ca1.442) and Dip Narain Singh v. Nageshar Prasad and others (AIR1930All.l). In the instant case, I, therefore, hold that landlord has disentitled himself to seek relief under the provisions of West Pakistan Urban Rent Restriction Ordinance, 1959, as he has accepted "Pagri" as such the impugned orders passed by the Rent Controller granting eviction on the ground of personal need is hereby set aside and the appeal is allowed with no order as to costs. A. A. ?????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? Appeal allowed.