1984 PLP 1089 (SCMR)

(i) Whether the petitioner has no cause of action? O. P. (ii) Whether the petition is pre‑mature? O. P. A. (iii) Whether the respondent is a defaulter? O. P. A. (iv) Whether the respondent has been paying or tendering the rent regularly to the petitioner? O. P. R. (v) Whether the petitioner requires the premises for the bona fide personal need of Sabir Ali petitioner? O. P. A. (vi) Relief?

2. Both the parties produced evidence before the learned Rent Con troller who vide his order dated 25‑2‑1980, decided issues Nos. 1 to 4 against the appellants and, consequently, dismissed the application for eviction of the respondent. However, no finding was recorded on issue No.

5. The appellants then filed an appeal before the learned District Judge Sheikhu pura which was entrusted to the Additional District Judge for disposal. The learned Additional District Judge set aside the order of the learned Rent Controller and remanded the case to the trial Court for giving finding on issues Nos. 5 and 6 without himself giving any finding on issues Nos. 1 and 2, vide order dated 26‑4‑1980.

3. Aggrieved from the aforesaid order S. A. O. No. 362/80 was preferred by respondent No. 1 which abated because of amendment in section 15 of the Rent Restriction Ordinance brought about by Ordinance IX of 1979. However, respondent No. 1 filed a constitutional petition in the Lahore High Court which was accepted vide order dated 18‑10‑1980 setting aside the order dated 26‑4‑1980 passed by the Additional District Judge and the case was remanded to him for decision in the appeal on merit. After remand, the learned Additional District Judge, vide order dated 24‑11‑1980, dismissed the appeal of the appellants. This was again challenged through Writ Petition No. 135 of 1981 before the Lahore High Court for quashment of the two aforementioned order, dated 25‑2‑1980 passed by the Rent Controller and the order, dated 24‑11‑1980 of the learned Additional District Judge, Sheikhupura. But this petition was dismissed by the High Court vide the impugned judgment, dated 12‑10‑1982.

4. Thereafter petition was filed in this Court seeking leave to appeal against the aforesaid judgment and leave was granted vide order dated 17‑8‑1983 on the grounds that when a tenant was in possession he cannot be evicted except in accordance with the provision of Ordinance IX of 19791 because it does not seem that in constructing the validity of an agreement of tenancy, the applicability of other law, otherwise relevant to such agreement, stands also excluded and that for a valid agreement even for the purpose of the proviso it must conform to the other laws generally applicable to and governing such agreement, such as section 107 of the Transfer of Property Act ; and lastly, to examine the law laid down in Muhammad Yousuf v. Muhammad Ahmad (P L D 1978 Lah. 815).

5. The learned counsel for the appellants contended that the learned High Court Judge committed an error of law by applying sub‑clause (3) (11) of section 13 of the Rent Restriction Ordinance wrongly in the case. It is provided in the first proviso to the said clause "Provided that where the tenancy for a specified period agreed upon between the landlord and the tenant, the landlord shall not be entitled to apply under this subsection before the expiry of such period." In order to apply this proviso of law, an agreement between the landlord and the tenant must be that they have contracted that the tenancy would subsist for a specified period. No such agreement has been shown in this case. The landlord, on the other hand, has denied any agreement. The original owner of the said property namely Ghulam Ahmad had appeared as A.W. I, the learned counsel urged, had categorically stated that no such agreement was ever executed that the tenancy would run for a specified period i.e. 10 years as alleged by the tenant respondent. It was further argued that since the appellants had denied any specified tenancy, no oral evidence could be led in view of the said proviso.

6. We have examined the contentions raised by the learned counsel and we find that the impugned order does not suffer from any infirmity in B law or facts. The appellants have miserably failed to rebut, the exis tence of any agreement by any evidence and finding of the Courts below are against them. While referring to the evidence we would like to comment that none of the witnesses produced by the appellants, has successfully established that there was no agreement for a period of 10 years between the landlord and tenant. This is the finding of the learned Rent Con troller that there did exist an agreement between the parties for the tenancy to continue for a period of 10 years. The learned District Judge, in his order, dated 14‑11‑1980 has observed "Now we have to see if the statement of R. W. 1 Mahmood-ul‑Hasan and R. W. Bashir Ahmad can be relied upon for the determination of the dispute between the parties. A careful reading of the statement of R. W. I Mahmoodul Hasan and R. W. 2 Bashir Ahmad would show that their would be hardly any reason to dis believe them. Mahmoodul Hasan R. W. 1 is an employed of office of the D. W. 2 where Ghulam Ahmad, the official owner of the shop was Superintendent. This would show that Mahmoodul Hassan was a natural witness about the dispute between the parties. His version is that Ghulam Muhammad has filed an ejectment application against the respondent, which had ended into a compromise between the parties in a Panchayat. He has stated in very clear words that the period of tenancy was fixed for ten years and it was agreed upon that prior to the said period. No application for ejectment shall be filed. In the same order the learned Judge observed regarding the personal requirement of the appellant "Mian Sohan A. W. 2 has no doubt started that the shop in dispute, was required by Sabir Ali for his personal use, but he has made a material admission during the examination which goes to the root of the case of the appellants. He has admitted that the appel lants had got vacated another shop from the it tenant Muhammad Aslam and Muhammad Akram for Wazir Ahmad. Parties having verbally agreed on the condition of tenancy and it is evident that the appellant cannot succeed without proof of bona fide need. There fore, leave is withdrawn on the ground of failure on the part of appellant to established his bona fide requirement. S. Q. Order accordingly.