1992 PLP 1552 (MLD)

Date of hearing: 24th November, 1991. Mrs. Yeman Khatoon, the Applicant herein, is the owner of a Bungalow situated on Plot No.107‑F, Block B, North Nizamabad, Karachi. Director General Geological Survey of Pakistan, Ministry of Petroleum and Natural Resources, Government of Pakistan had his office in. a premises adjacent to the premises owned by the Applicant. In 1981 they required the premises of the Applicant for their office. The parties negotiated the hiring of the premises and through correspondence terms of tenancy of that premises were settled. An agreement on plain piece of paper was signed by them on 5th January, 1981. The important terms of the agreement were as follows: "(1) That the rent of the premises was agreed to be Rs.9,000 per month and amount equal to rent for 24 months as advance was to be paid to the applicant to be adjusted towards the monthly rent. (2) Tenancy was to commence from 15th January, 1981. Normally under the rules an advance rent of one year is permitted by the Government and the Director, General wrote for sanction of payment of rent for two years. A token amount of Rs.5,000 was however, paid towards advance and respondents informed the applicant that they were putting in an effort for approval of payment of advance rent for two years. The Respondent by their letter dated 26th May, 1981 (Ex.12‑D) informed the applicant that competent authority had sanctioned payment of advance of two years from the date of actual occupation of the premises in question and arrangement for drawing the amount for payment to her was being made and requested her to hand over the possession of the premises immediately. This letter was replied to by the Advocate for the Applicant and it was intimated to Respondent that their changed condition of paying rent from the date of effectiveness of the agreement was not acceptable, tenancy agreement terminated and claim for payment of Rs.35,500 being rent for the period from 15‑1‑1981 till that date was made. Ultimately, the Applicant filed a suit for recovery of the amount. The suit was resisted by the Respondent and after recording evident as led by the parties, the trial Judge dismissed the suit. The Applicant filed an appeal against the judgment and decree passed by the Trial Judge but was unsuccessful and the appeal was dismissed by the IVIh Addl. District Judge, Karachi West on 26‑2‑1987. It is against this judgment and decree that the present application under section 115, C.P.C. has been filed. Mr. Khalid Hamid, Advocate for the Applicant, contends that date of commencement of tenancy is mentioned in the agreement executed by respondents to hire her premises. According to it tenancy was to commence 'from 15th January, 1981 and Respondents are liable to pay rent from that date till such time the tenancy was terminated by the Applicant as the respondents changed the terms of tenancy arbitrarily‑and stated that the rent will be payable from the date of handing over possession to them. According to him, they did not pay two years rent in advance as agreed and had paid a token amount of Rs.5,000 only. The possession of premises could only be handed over to the respondent after they had paid full amount of advance as was agreed between the parties. Mr. S.M. Shahudul Haque, appearing for the Respondents, contended that according to the agreement reached between the parties Applicant was required to put the premises in right shape and put them in possession thereof. From the correspondence brought on record by the parties, it is evident that the premises in question were not brought to a suitable condition for the use. of an office by the Respondent and the applicant did not hand over its possession in spite of repeated demands. He referred to the agreement and correspondence between the parties and argued that agreement in the circumstances was not final. Applicant, according to him, cannot on the basis of such agreement claim for the recovery of the amount of rent for the period claimed by her. He further contended that both the Courts below have given a concurrent finding on such issue and it is beyond the scope of the jurisdiction of this Court under section 115, C.P.C. to disturb such finding. The agreement which was brought on record of the original Court late without any objection is an unregistered document on a plain piece. of paper. Admittedly the tenancy agreement was for a period of more than 12 months. From the correspondence on record it is clear that the parties in spite of executing the agreement on 5‑2‑1981 were still carrying on correspondence with each other on terms thereof. No evidence has been brought on record which can show that the agreement was finally concluded between the parties and either of the two had acted upon it. The applicant never brought the premises in a fit condition to be handed over to the respondents for their use as an office nor the Respondents made the.payment of advance agreed upon between them. The amount is claimed by the applicant on the basis of an A agreement which appears to have not been concluded or acted upon by either party. Under the circumstances the claim of the applicant cannot be allowed. Besides no ground has been pointed out by the Advocate for the applicant that can justify disturbing of the concurrent findings of the Courts below. For the foregoing reasons this application is dismissed with no order as to the costs. H.B.T./Y‑64/K Application dismissed.