1996 PLP 1784 (SCMR)

Muhammad Akram Zuberi, Advocate Supreme Court and A. Aziz Khan, Advocate-on-Record for Appellant. Nemo for Respondent. Date of hearing: 24th June, 1993. AJMAL MIAN, J

This is an appeal with the leave of this Court against the judgment dated 10-5-1992 passed by learned Single Judge of High Court of Sindh in F.R.A. No. 268 of 1991, filed by the respondent against the ejectment order dated 31-3-1991 passed by the learned 1st Senior Civil Judge and Rent- Controller, Karachi (South), in Rent Case No.471 of 1989, on the grounds of default and personal requirement, allowing the same and setting aside the above order of ejectment on the ground that the tenancy agreement dated 25-6-1973, hereinafter referred to as the agreement, was in fact a tenancy in perpetuity.

2. Leave to appeal was granted to consider, whether the view found favour with the learned Judge in Chambers was contrary to the view taken by this Court in the case of Habib Bank Limited v. Dr. Munawar Ali Siddiqui (1991 SCMR 1185) and an unreported judgment dated 10-6-1991 rendered in Civil Appeal No.40-K of 1989) (Rahim Bhai v. Amir Ali and others).

3. The brief facts are that under an agreement of tenancy dated 25-6-1973, hereinafter referred to as the agreement, the appellant rented out Shop No. 19, situated in Saddar Cooperative Market, Abdullah Haroon Road, Karachi, hereinafter referred to as the shop, at Rs.300 per month. The appellant filed above rent case on the ground of default from August, 1987, till. the filing of above rent case i.e. up to February, 1989, and also on the ground of personal requirement. The above rent case was resisted by the respondent inasmuch as it was pleaded that he was not the tenant but is a licensee. It was further pleaded that the tenancy/lecence was of permanent nature duly inheritable with the right to let out the same to any one. It was also pleaded that under the terms of the agreement the ground of ejectment could not be pressed as the appellant could file proceedings for recovery. However, the learned Rent Controller, after recording evidence and hearing the parties by his above detailed order, allowed the above rent case on both the grounds. It was held that the tenancy agreement could not be treated as a permanent lease and that clauses (4) and 5 to the extent which are inconsistent with the provisions of the Sindh Rented Premises Ordinance, 1979, hereinafter referred to as the Ordinance, were not enforceable. Against the above order, the respondent filed above F.R.A. which has been allowed by the judgment under appeal and the case has been remanded for fresh decision in the context of the terms and conditions contained in the agreement particularly clauses (2), (4) and (5) thereof. Thereupon, the appellant filed a petition for leave to appeal which was granted to consider the above question.

4. The above appeal had come up for hearing on 13-6-1993 when nobody appeared for the respondent. We adjourned the case with the direction to issue fresh notice to the respondent. The above appeal again came up for hearing before us on 21-6-1993 but the case was adjourned to 23-6-1993. The above appeal has been taken up today but nobody has turned up on behalf of the respondent though the copy of notice on Court's record indicates that the notice had been received by the respondent. We have, therefore, proceeded with the above appeal.

5. Mr. Muhammad Akram Zuberi, learned A.S.C. appearing for the appellant, has vehemently contended that the learned Judge in Chambers was not justified in reversing the finding of the learned Rent Controller and remanding the case to him for fresh decision for the reason that the question, whether the agreement of the nature in issue can be treated as a lease in perpetuity, has been settled by this Court through the judgment in the case of Habib Bank Limited v. Dr. Munawar Ali Siddiqui (supra) and that on merits both the grounds on which the Rent Controller allowed the ejectment are sustainable.

6. Adverting to M. Zuberi's above first contention, it may be pertinent to reproduce above clauses (2), (4) and (5) of the agreement, which read as follows:--

7. No doubt that under the above clauses it has been provided that in case of default in payment of 3 months' rent, the appellant is entitled to recover the same and that the rights under the agreement are inheritable and that the tenancy was permanent. It has also been provided that the respondent would have the right either to use the shop himself or to allow some other person to use it. In my view, notwithstanding the above clauses contained in the agreement which are on Rs.6 non judicial stamp paper, perpetual lease could not have been created through the agreement In this regard, reference may be made to the case of Habib Bank Limited v. Dr. Munawar Ali Siddiqui (supra), in which inter alia it has been held that a lease for more than one year is required to be registered and that a lease agreement purporting to create a lease in perpetuity without specifying a period being repugnant to the provisions of the Ordinance would not be enforceable. In this behalf it may be pertinent to quote the relevant passage from the above judgment, which reads as follows:-- "Whereas subsection (2) of section 15 of the Ordinance entitles a landlord to apply for ejectment inter alia on the ground that he requires premises in good faith for his own occupation or use or for the occupation or use of his spouse or any of children. A renewal clause in a lease agreement or a lease deed purporting to create a lease in perpetuity without specifying a period and thereby depriving the landlord from filing an ejectment case on the ground of personal requirement for all times may not be enforceable as being repugnant to the scheme of the Ordinance. However, we may clarify that the ratio of the above judgment of this Court in the case of Mst. Zehra Begum still holds ground and that the same is distinguishable for the reasons recorded hereinabove in para. (5)."

8. The above judgment was reiterated in the above unreported judgment dated 6-6-1991 rendered by this Court in Civil Appeal No. 40-K of 1989 (Rahim Bhai v. Amir Ali and others) (supra). In view of the above clear legal position, the learned Judge in Chambers was not justified to upset the order of the-learned Rent Controller particularly keeping in view that the learned Rent Controller had dilated upon the above aspect exhaustively.

9. As regards the merits of the case, the finding of the learned Rent Controller that there is a default in payment of rent from August, 1987, to February, 1989, it appears that the last receipt issued by the appellant to the respondent is of July, 1987. Then there is a receipt issued by the office of the learned Rent Controller for depositing of the rent by the respondent for the month of February, 1989. There is no reliable evidence on record produced by the respondent to prove the factum of payment of rent for the above period. The Rent Controller had rightly concluded that there was default for the period from August, 1987, till filing of the rent case i.e. up to February, 1989.

10. As regards the personal requirement, the finding of the learned Rent Controller on this question is also supported by the evidence on record. It may be pertinent to reproduce the relevant portion of the order of the learned Rent Controller on the above question, which reads as follows:-- "That the shop bearing No.19, Saddar, Cooperative Market is required by my father Mr. Muhammad Shafi Chaudhary in good faith for my use and occupation. It is pointed out that the above statement of the applicant's son has also gone unchallenged at the hand of the opponent as the learned counsel for him did not cross-examine the witness referred to, on the above pieces of his testimony and hence, the same amounts to have been admitted on the part of the opponent as a matter of a well-settled rule of law that a statement of a witness on oath in evidence if not challenged in cross-examination, will , be deemed to have been admitted by the party liable to cross-examine such witness. Anyhow, the burden of proof in regard to the issue in question too, stands discharged by the applicant satisfactorily. The burden now stands shifted to the opponent to rebut the case of the applicant on the point in issue, positively. He pleaded in his written statement in this regard." There seems to be no infirmity in the above reasoning.

11. We would, therefore, allow the above appeal, set aside the judgment of the High Court and would restore the order of the learned Rent Controller for ejectment. However, though the respondent is not present, we allow six months' C time from today to him for vacating the suit shop on the condition that the respondent shall continue to pay rent regularly and further on the condition that in case the respondent fails to hand over the vacant possession of the suit shop upon the expiry of above period of six months, the learned Rent Controller shall issue a writ of ejectment without any further notice to the respondent. However, there will be no order as to costs. A.A./M-3243/S Appeal accepted.