1993 PLP 200 (SCMR)

AJMAL MIAN, J.‑‑‑This is an appeal with the leave of this Court against the judgment, dated 13‑1‑1991 passed by a learned Single Judge of the High Court of Sindh in F.RA. No.806 of 1989, filed by the appellants, dismissing the same and maintaining the order of the learned Rent Controller dated 21‑11‑1989, ordering ejectment on the ground of default and personal requirement. Leave to appeal was granted to consider the following questions:‑‑ (1) Whether agreement of tenancy containing admission with regard to acceptance of Pugree renders agreement as void and not enforceable under the provisions of West Pakistan Urban Rent Restriction Ordinance, 1959? On this point there is no authoritative decision from the Supreme Court. (2) In case of void agreement, whether tenant acquires rights of tenant‑at‑will and is liable to be ejected for non‑payment of rent under the general law and not under the provisions of Rent Restriction Laws, and whether in such circumstances alternatively provisions of Transfer of Property Act would be attracted? (3) Whether High Court exceeded jurisdiction vested in it while exercising powers vested in it under sections 15 and 21 of Sindh Rented Premises Ordinance. 1979 or under the provisions of West Pakistan Rent Restriction Ordinance, 1959, by directing refund of amount of Pugree in the sum of Rs.17,000 to the petitioners allowing ejectment on refund of amount of Pugree? (4) Whether evidence brought on the record is sufficient to justify eviction on the grounds of default and personal need. (5) Whether ratio laid down in the cases of Sheikh Muhammad Yousaf v. District Judge, Rawlpindi and others 1987 SCMR 307 and Habib Bank Limited v. Dr. Munawar Ali Siddiqui 1991 SCMR 1185 would govern the present case or not for the reason that reported cases are distinguishable on the grounds of different facts and background.

2. The brief facts are that the respondent owns plot of land bearing No.7 situated on Plot No .7, Road No.10, opposite Jama Masjid, Aligarh Colony, Manghopir Road, Karachi, with the construction thereon, hereinafter referred to as the premises. It seems that he let out the above premises to the appellants in or about 1968 for carrying on restaurant business in the name and style of `Mashallah Restaurant' at Rs.225 per month, which rent was raised to Rs.350 per month in June, 1976, and thereafter to Rs.500 per month in June, 1978 and finally to Rs.600 per month in 1984. In para. (4) of the rent application, the respondent made the following averment:‑ "(4) That the opponents paid a sum of Rs. 2,000 in December, 1988, and a further sum of Rs.15,000 in 1978 thus totalling a sum of Rs.17,000 which is being held by the applicant as security deposit and is payable to opponents at the time of vacating the said premises."

3. The above rent application was filed on the ground of default for the payment of rent since May, 1984, till September, 1986, and personal requirement of the respondent and his son Khateebur Rehman for running business of grocery and general merchandise. The above application was resisted. It was denied that the appellants had committed any default or that the respondent required the premises for himself or his son. As regards above para. 4 of the rent application, the following averments were made in para. 2 of the written statement:‑‑ "

2. That as to para. 4, it is submitted that the applicant has falsely alleged that Rs.17,000 was paid as security amount refundable to the opponent at the time of vacating the premises, hence the allegation as made is denied. It is submitted that no doubt Rs.17,000 was paid to the opponents but as goodwill amount and not as security money and there is no such agreement as alleged by the applicant, which is evident on the face Agreement of Tenancy dated 24‑1‑1978." It was, also pleaded that the rent for the months of May and June, 1986, at the agreed rate of Rs.600 per month was paid in cash but the respondent with mala fide intention and ulterior motive, issued receipt mentioning the rent at Rs.1,000 for each month. On the basis of pleadings of the parties, the learned Rent Controller framed the following four points for decision:‑‑ "No.1 Whether word `good‑will' shown in the agreement debars the applicant from filing an ejectment application? No.2. Whether the opponents committed wilful default in payment of rent since May 1986? No.3 Whether the premises is required for personal bona fide use of the applicant and his son? No.4 What should the order be?"

4. After recording evidence and hearing the parties, point No.1 was answered in the negative, whereas above points Nos. 2 and 3 were decided in the affirmative. In view of the above findings on points Nos.2 and 3, the rent application was allowed on both the above grounds through the above order. Thereupon, the appellants riled the above F.RA., which was dismissed through the judgment under appeal. After that, the appellants filed a petition for leave to appeal, which was granted to consider the above questions.

5. In support of the above appeal, Mr. S. Ishtiaq Ali, learned A.S.C. appearing for the appellants, has vehemently contended that the learned Rent Controller as well as the learned Judge in Chamber have wrongly held that the respondent's above rent application was maintainable. In furtherance of his above submission, he has urged that since the respondent had received Rs.17,000 as 'Pagree' in addition to the agreed rent and as‑ the taking of `Pagree' was prohibited by section 7 of the late West Pakistan Rent Restriction Ordinance, 1959, hereinafter referred to as the late Ordinance, the provisions of the Ordinance were not applicable and section 105 of the Transfer of Property Act governed the case and, hence, the Civil Court had the jurisdiction in the matter.

6. The learned Rent Controller, while answering the above point No.1 in the negative, has relied upon the case of Sheikh Muhammad Yousaf v. District Judge, Rawalpindi and 2 others 1987 SCMR 307, wherein this Court has held as follows:‑‑ "According to the lease agreement the shop had been let out to the tenant‑petitioner for a fixed period of ten years with a right of re‑entry reserved by the respondent‑landlord, but it is not mentioned in the lease deed that the respondent‑landlord had received Rs.11,000 as Pugree from the petitioner‑tenant, although it is so stated by him in his statement before the Rent Controller (page 134 of the Paper Book). However, that being mutual arrangement between the parties, would not debar the respondent landlord from instituting eviction proceedings on the ground of bona fide personal need."

7. The learned Judge in Chamber in the judgment under appeal has pointed out that the appellants had not denied the relationship of landlord and tenant between them and the respondent in their written statement. It has also been held by him that since the above tenancy agreement dated 24‑1‑1978 was in violation of section 7 of the late Ordinance it was void and non‑enforceable.

8. In our view, the above contention of Mr. S. Ishtiaq Ali is devoid of any force. The mere fact that the appellants had paid above sum of Rs.17,000 in addition to rent, would not take away the jurisdiction of the Rent Controller in a case in which the relationship of landlord and tenant is not denied or it is proved that the occupant of the premises pays rent to the owner of the premises as a consideration for using the premises. Section 105 of the Transfer of Property Act does not alter the above legal position. It defines what is a "lease". It has nothing to do with the question, whether an ejectment proceeding is to be filed before the Rent Controller or in a Civil Court. The above rent case was filed in 1986 when Sindh Rented Premises Ordinance, 1979, hereinafter referred to as the Ordinance, was in force. Section 3 of the Ordinance provides that "Notwithstanding anything contained in any law for the time being in force, all premises other than those owned or requisitioned under any law, by or on behalf of the Federal Government or Provincial Government, situated within an urban area, shall be subject to the provisions of this ordinance." The terms "landlord" and "tenant" have been defined in clauses (f) and (j) of section 2 of the Ordinance, which read as follows:‑‑ (f) landlord means the owner of the premises and includes a person who is for the time being authorized or entitled to receive rent in respect of such premises. (j) tenant means any person who undertakes or is bound to pay rent as consideration for the possession or occupation of any premises by him or by any other person on his behalf and includes:

(1) any person who continues to be in possession or occupation of the premises after, the termination of his tenancy; (ii) heirs of the tenant in possession or occupation of the premises after the death of the tenant;" Admittedly, the respondent falls within the definition of the "landlord" as given in above clause (f) as he 'was entitled to receive rent from the appellants and was in fact receiving the same at the time of filing of ejectment case as averred even by the appellants in their written statement. Whereas, the appellants fall within the definition of "tenant" as given in above quoted clause (j) of section 2 of the Ordinance, as admittedly they had been paying rent as a consideration for possession or occupation of the premises. In this view of the matter, the above contention is not sustainable.

9. Before touching upon the merits of the case, we may observe that factually the tenancy had commenced in 1968 when the appellants purchased the restaurant from the previous tenant and the premises was owned by one Haji Jehandad Khan son of Bahadur Khan as indicated in the agreement dated 12‑12‑1968 between the previous owner of the restaurant and the appellants (at page 49 of the paper‑book) and not under the agreement dated 24‑1‑1978, whereby an additional sum of Rs.15,000 was paid. According to Mr. S. Ishtiaq Ali, the above tenancy agreement dated 24‑1‑1978 was for an indefinite period, which entitled the appellants to carry out structural additions and alterations and even to sublet the premises without the permission of the respondent. The above agreement needed registration as it purports to be for a ‑period longer than 11 months keeping in view the ratio of the judgment of this Court in the case of Habib Bank Limited v. Dr. Munawar Ali Siddiqui 1991 SCMR 1185. Apart from the fact that the above agreement, was violative of section 7 of the late Ordinance and, therefore, was not enforceable as held by the High Court, the same was also bad in law' because of non‑registration. The relationship between the appellants and the respondent was to be governed by the provisions originally of the late Ordinance and upon the enforcement of the Ordinance by the provisions of the latter.

10. As regards the merits of the case, it may be observed that the learned Rent Controller as well as the learned Judge in Chamber found that the, appellants had committed default. The learned Rent Controller relied upon the factum that no rent receipt was produced for the defaulted period by the appellants. In respect of remission of rent through the money order, it was pointed out that the appellants' witness in the cross‑examination admitted as follows:‑ "Money order was sent on 28th August or before this I do not remember. It was not for Rs. 600." The above finding has been concurred with by the High Court. Since both the Courts have held that the respondent had received a sum of Rs.17,000 which he was not entitled to receive, the arrears of rent of the period in default could have been adjusted against the above amount or, in any case, the default could have been condoned as the respondent was holding with him an amount more than the amount of arrears of rent, which he was not entitled under the law to receive from the appellants. We are, therefore, inclined to reverse the finding of the two Courts below on the question of default.

11. As regards personal requirement, we find that nothing concrete has been brought out by the appellants in the cross‑examination of the respondent to reflect adversely on the credibility of the respondent's evidence as to the bona fide requirement, The plea taken by the appellant that the respondent was running a poultry farm in Islamabad, remained unproved. Similarly, the appellants' second plea that Ghulam Nabi was running the shop which was owned by the respondent, remained unproved. There is a concurrent finding of the two Courts which is supported by the evidence on record. We would, therefore, maintain the above finding.

12. Since we have maintained the finding on the question of personal requirement, the ejectment order is sustained and, therefore, the appeal is dismissed, with no order as to costs. Since the appellants are running a restaurant in the suit premises and as they will take some time for making alternate arrangements, we allow one year time to the appellants to hand over the vacant possession subject to payment of rent regularly and subject to the condition that in case the appellants fail to hand over the vacant possession on the expiry of above period of one year, the learned Rent Controller shall issue a writ of ejectment without any further notice to the appellants. AA./M‑1693/S Appeal dismissed.