2006 PLP 1537 (SCMR)

SARDAR MUHAMMAD RAZA KHAN, J.

Messrs Agfa Color Services (Pvt.) Limited have challenged the judgment, dated 7-1-2002 rendered by a learned Single Judge of Lahore High Court in S.A.O. No.211 of 2000 whereby the ejectment orders from the suit premises were passed against the petitioner, on accepting the ejectment petition of Muhammad Asad respondent and by setting aside the concurrent findings of the Rent Controller, Lahore dated 29-2-2000 and of the Additional District Judge, Lahore, dated 15-5-2000.

2. The petitioner admittedly .is a tenant under the respondent since, 1981. A previous ejectment petition filed in the year 1989 on grounds of personal need ended into a compromise between the parties on 10-12-1990 whereby, -out of two shops, one was got vacated for personal need and the other was left to the petitioner up to 10-12-2010. The rent was enhanced from Rs.600 to Rs. 1200 per month and it was agreed upon that the rent would be further increased after every three years by 20%. From 1990 up to 1995 the affairs remained smooth but in 1995 the landlord against filed an ejectment petition (the instant one) on the ground of default to the effect that the tenant/petitioner had failed to pay 20% increase of rent as stipulated by compromise dated 10-12-1990.

3. The petitioner took a two-fold stance before us. Firstly, that he has been paying rent along with increased 20% but the landlord issued the receipt for a sum of Rs. 1200 only. Secondly, that section 5-A of Rent Restriction Ordinance was added in the year 1991 contemplating of an automatic increase of rent at the rate of 20% but at every increase the tenant was entitled to a notice qua the enhancement of rate of rent at 25 %.

4. We do not find ourselves in agreement with the contradictory stance taken by the petitioner. The two stances taken before us are destructive of each other because if the tenant claims to have actually paid the enhanced amount with reservation that the receipt of the old amount was given by the landlord, it clearly means that he was aware of the enhanced payment and hence no notice was required at all, with reference to section 5 aforesaid.

5. Section 5-A was inserted in the Ordinance in the year, 1991 which contains 25 % automatic enhancement after each three years. In the instant case the landlord is not demanding 25 % enhancement, though he can, but is claiming 20% enhancement under the settlement between the parties dated 10-12-1990 in the previous litigation. As it was undoubtedly an agreement between the parties, the tenant was bound to make payment thereof accordingly and without notice.

6. Coming to the factual aspects of actual payment of 20% enhanced rent by the tenant, suffice it to mention that the manager of the petitioner company, R.W.1 has appeared in the witness-box (P.66) and has admitted that the representative of the company named Tahir Riaz used to make payment of rent and further that he used to get receipt in accord with the payment. If this is the situation then the payment of Rs.1200 as shown in the receipts is indicative of the actual payment made, without the enhanced amount of 20%. Tahir Riaz who actually made the payment, being primary evidence, has been withheld by the petitioner. The factual aspect of the case has, therefore, rightly been dealt by the learned Judge in the High Court.

7. There being no force in the petition, it is hereby dismissed and leave to appeal refused. The petitioner shall hand over the vacant possession of the premises within 18 months from today subject, of course, to the payment of regular monthly rent at the rate agreed upon between the parties in compromise deed dated 10-12-1990. The Paghri amount/security money of Rs.3,00,000 shall be returned by the respondent/landlord on or before the expiry of the aforesaid term of vacation. On the term of vacation and the payment of Paghri/security money, both the learned counsel agreed thereto after consulting their clients in Court. S.A.K./A-92/SC Leave refused.