1998 PLP 69 (MLD)

(3) Whether the plaintiff is estopped by his own words and conduct to bring the suit? OPD. (4) Whether the suit is mala fide and vexatious, as the defendant as entitled to special costs under section 35-A of C.P.C.? OPD. (5) Whether the suit property has been leased out by the plaintiff for a period of two years i.e. till 9-1-1994? OPD. (6) Whether the plaintiff cancelled the lease vide notice dated 16-11-1992 and the defendant is in illegal occupation of the same since then? OPP. (7) Whether the plaintiff is entitled to recover the possession of the suit property through allotment and also the compensation at the rate of Rs.22,000 per month from 10-1-1993 till the vacation of the suit property for illegal use and occupation of the same? OPP. (8) Relief.

3. The learned trial Court decreed the suit and held that the respondent plaintiff was entitled to one year rent at the rate of Rs.11,000 per month from 10-1-1993 after deducting Rs.87,000 and that he was also entitled to compensation with effect from 10-1--1994 till the vacation of the house and it shall be double the amount of rent. The appeal filed against the said judgment and decree was dismissed on the ground that admittedly, the lease was for a period of two years commencing from 10-1-1992 (at a monthly rent of Rs.11,000); received one year advance, the agreement was not got registered as required under section 17, clause (d) of the Registration Act, non-registration of a document would not "operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent", and therefore, the said agreement would be void and under section 106 of the Transfer of Property Act, it', could only be a lease from month to month terminable either on the part of the lessor or lessee by 15 days notice. It was further held that the respondent-plaintiff had received the rent of Rs.87,000 of the second year of the lease under protest and this would not constitute estoppel against him to cancel the lease at any time before the expiry of one year by giving 15 days notice. However, the receipt of the amount by implication allowed the appellant-defendant to continue tenancy for two years which too expired on 10-1-1994 and respondent-plaintiff was entitled to possession from the said date and it was further held that since the appellant-defendant continued to retain the possession of the disputed house after the expiry of the lease period, the said occupation was wilful and contumacious for which he was liable to pay by suffering a double rent from 10-1-1994 till the house is vacated.

4. Learned counsel for the appellant has challenged the two concurrent findings of the learned lower Courts on the ground that since it was not a registered lease deed, the landlord could not claim any rent and that the appellant is prepared to vacate the house within two months if a direction to deposit the double amount with effect from 10-1-1994 is set aside. Learned counsel for the respondent-plaintiff, on the other hand, has defended the impugned judgments and decrees by submitting that as the lease deed was not a registered document, the lease was terminable by 15 days notice; that possession of the appellant defendant being contumacious after 10-1-1994, the learned Courts have rightly burdened the appellant-defendant with double the rent with effect from the afore -referred date.

5. I have heard learned counsel for the parties and have given anxious thoughts to the arguments addressed at the bar.

6. The findings of the learned two Courts below on the effect of non -registration of a lease agreement is a correct interpretation of the relevant statutory provisions and the law declared. In Habib Bank Ltd. v. Dr. Munawar Ali Siddiqui (1991 SCMR 1185) at page 1190, it was held as under:-- "In this behalf, it may be pertinent to refer to section 107 of the Transfer of Property Act, 1882, and sections 17(d) and 49 of the Registration Act. Above section 107 of the former Act, inter alia, provides that a lease of immovable property from year to year or for any term exceeding one year or reserving a yearly rent can only be made by a registered instrument, where as section 17(d) of the latter Act requires compulsory registration of a lease of the nature covered by section 107 of the former Act. Section 49 of the latter Act provides for effect of non-registration of documents required to be registered as follows:-- 'No doubt, required to be registered under this Act or under any earlier law providing for or relating to registration of documents shall- (a) operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, to or in immovable property, or (b) confer any power to adopt, unless it has been registered. "'

7. So far as the question of mesne profit and the award of double rent with effect from 10-1-1994 is concerned, it is to be noted that it was appellant defendant's own case that the lease was for a period of two years which expired on 10-1-1994. That being so, the possession of appellant-defendant, thereafter, was contumacious and he could be described as a trespasser. In such circumstances, the Courts have awarded damages and the continuation of possession thereafter, by the appellant-defendant was unjust and the learned courts below have rightly awarded double the rent for the said period. In Dawood Hercules Chemicals Limited v. Water and Power Development Authority (1991 CLC Note 269) at page 208, a Division Bench of this Court held as under:

"S. 2(12)

Quantum of mesne profits- --Where tenant was holding over premises wilfully and contumaciously after lawful determination of his tenancy mesne profits, could be claimed and recovered from him at about the rate of Rent

Rule according to which double the normal rent was taken as a suitable measure of damages in case where possession of tenant over premises was wilful and contumacious, though was based on English Law, but having been consistently followed in Pakistan could not be deviated from. "

8. For what has been discussed above, the two concurrent findings of the learned Courts below are neither against the weight of evidence nor illegal to warrant interference. There is no merit in this appeal which is dismissed. A.A./S-150/L Appeal dismissed.