1993 PLP 245 (CLC)

As against this Mr. Nasimuddin Shaikh, the learned counsel for the respondents has submitted that the relationship in the present case is governed by lease agreement and as per clauses 5 (j) and (h), the appellant had waived his right of seeking ejectment on the ground of personal requirement or on attaining the age of 60 years as, at the time of executing the lease agreement, he was very much within the knowledge about his age. He has further submitted that under the terms and conditions of the agreement, the appellant is bound to renew the lease for another term of five years. I have perused the evidence on the record. In order to appreciate the point in dispute, it would be helpful to reproduce the above‑referred clauses of the lease agreement which read as under:‑‑ . (a) ............................................... (b) ............................................... (c) ............................................... (d) ............................................... (e) ............................................... (f)............................................... (g)............................................... (h) To extend the term of the lease for a further period of five years or more on terms and conditions to be mutually agreed between the lessor and the lessee. (i)..... .. (j) Not to call upon the lessee to vacate the premises for the lessor's own use." The above two clauses show that the present appellant has not only agreed to renew the lease for a further period of five years or more on terms and conditions to be mutually agreed between the lessor and the lessee but has also agreed to waive his right to seek ejectment on the ground of personal use. The learned counsel for the appellant has submitted that there can be no estoppel against statute and this condition even though agreed upon by the appellant will not have binding effect and will not take away the legal rights which accrue to him under section 14 of the Ordinance. He has placed reliance on the cases of Habib Bank Ltd v. Dr. Munawar Ali Siddiqi (1991 SCMR 1185) and Islam Akber v. Mustafa Hussain (1992 CLC 1753). In the first case the facts showed that the lease agreement purported to create a lease in perpetuity without specifying a period and thereby depriving landlord from peeking ejectment on the ground of personal requirement for all times to come. This was the case under section 15 of the Ordinance. However, as against this in the present case, it is admitted that the respondents have exercised option for only one term. There is another factor which distinguishes the present case from the above cited case. It is that in this case the present appellant has expressly waived his right to seek ejectment on the ground of personal requirement; and that relying on this understanding, the present respondents, who are a commercial business firm have spent a sum of Rs.7,00,000 on the restoration and repairs of the premises. The appellant in his cross‑examination has admitted that the respondents have spent amount over construction of the premises in dispute. Similarly, the respondents' witness has also deposed of such fact and has not been cross‑examined on this point. Another factor which is pressed in the present case by the respondents is that on the date the appellant had entered into a registered lease agreement, he was aware of his age and knew that by the year 1990, he would attain the age of 60 years and could seek the ejectment on the ground of personal requirement. From this the learned counsel for the respondents has submitted that the present application for ejectment is moved by the appellant with mala fide intentions. He has placed reliance on the case of Mrs. Zehra Begum v. M/s. Pakistan Burma Shell Ltd. (1992 SCMR 943) wherein it has been held as under:‑‑ "The provisions of the Ordinance permit freedom of contract based on equality of bargaining power in both parties. It formalizes the contract. It does not profess to protect any one class against the other. In this view of the matter if at the time of entering into lease agreement in 1965 the landlord knew that he was bartering away his personal need under the law then in force for a period of thirty years, he cannot under the statutory provision made in the Ordinance turn back to repudiate the term of the agreement. In the first place the Ordinance keeps alive the contract, lends it continued validity and force and professes to protect as much the right of the tenant as that of the landlord, referable always to a valid subsisting contract. In the second place even if there was such a right available under the law' (for arguments sake but not as a fact) it stood waived because it is not a part of public policy, but of a personal privilege which the landlord could forego for a valuable consideration." He has also relied upon the case of Mrs. Zarina Khawaja v. Aga Mahboob Shah (PLD 1988 S C 190). In view of the above case‑law and the facts on record, it can safely be concluded that the present appellant had bartered away his personal rights for valuable consideration and for improvement of his property which was done by the respondents having spent a substantial amount of over Rs. 7,00,

000. In these circumstances, I do not find any reason to interfere with the findings of the Rent Controller. Accordingly the appeal is dismissed with costs.

1. C.M.A. No.1010/92.

2. C.MA. No. 582/92.

3. C.MA. No468/92. These are three Miscellaneous applications moved by the appellant during the pendency of this appeal. In the first application a prayer is made by the appellant for appointment of a Commissioner to inspect the site in order to ascertain if the factory, has been closed down or ‑ is functioning. While in application at serial No.3 it is prayed that the two documents filed therewith be brought on record to show that the said factory of respondents has been closed down. From this the learned counsel for the appellant has contended that since the factory of the respondents is closed down, he is liable to be ejected. It may be observed that this was not the ground taken in the rent case nor any evidence was led before the Rent Controller in this respect. This is a new plea which cannot now be taken at the appellate stage. The other application at serial No.2 is for directing the respondents to deposit the rent in Court till disposal of appeal. It may be observed that as per the contents of the written statement the respondents are depositing the rent in Miscellaneous Rent Case. However, there being no ground of default in the present case, no such direction can be issued. A reference may be made to the case of Muhammad Yaqeenuddin v. S. Akhtar Hussain Zaidi (1986 MLD 2771) wherein it was held by a learned Single Judge of this Court that no new plea could be raised for the first time before High Court in its appellate jurisdiction in‑ a rent appeal. Accordingly, these applications are dismissed. H.B.T./M‑1763/K Applications dismissed.