2010 PLP 478 (SCMR)

MIAN SHAKIRULLAH JAN, J.

The appellant/landlord, with leave of the Court, seeking reversal of the judgment of the High Court whereby while accepting the appeal of the respondent/tenant an ejectment order passed by the two Courts below from a rented premises/shop passed in favour of the appellant was set aside.

2. The appellant filed an eviction petition on the ground of (a) personal need, (b) default in payment of rent, and (c) damages to the suit premises. The learned Rent Controller did not accept the plea of the appellant regarding default and damages, however, accepted his application for ejectment on the ground of personal need. Two appeals, one by each party, were filed against the order of the Rent Controller and the appellate Court while accepting the appeal of the appellant to the extent of default dismissed the appeal of the respondent against his ejectment order passed by the Rent Controller. The respondent being aggrieved of the judgment and order of the First Appellate Court filed two appeals against the two judgments and orders passed in the two appeals before the High Court. The High Court through a consolidated judgment while accepting the appeals of the respondent set-aside the judgment and order of his eviction. The appellant has now filed the instant appeals against the judgment and order "of the High Court, with leave of the Court.

3. The parties have executed written agreement regarding the tenancy and terms thereof and one of the agreement/receipts is with regard to the payment of Rs.80,000 paid by the tenant to the landlord with a stipulation that the landlord would not eject the tenant on the ground of personal need. The High Court while holding the tenant as not defaulter also reversed the findings of the Courts below regarding personal need mainly on the ground that the payment of Rs.80,000 by the tenant to the landlord was in consideration of a stipulation for not ejecting the tenant from the premises on personal need. However, this condition in the agreement debarring the landlord from seeking the eviction of the tenant from the premises on the ground of personal need is in violation of the statutory provisions contained in rent laws whereby the landlord can seek ejectment of the tenant on the ground of personal need and such a stipulation, which is in violation of any statutory provision, is void and not enforceable. In this respect reference can be made to section 28 of the Contract Act, 1872, wherein it has been provided that every agreement by which any party thereto is restricted absolutely for enforcing his right under or in respect of any contract by the usual legal proceedings in the ordinary tribunals is void hence on this ground the findings of the High Court are not sustainable. The learned counsel for the respondent while not controverting this legal proposition has contended that even on merits the demand of the appellant regarding the vacation of the premises on personal need is mala fide and he has not proved his bona fide. Though he has taken the plea but again could not substantiate the same that the plea of the appellant regarding his personal need was mala fide as the two Courts below i.e. the Rent Controller and the First Appellate Court, have concurrently held the personal need as bona fide and the High Court has not attended to this aspect of the case sufficiently, hence we agree with the findings of the Courts below qua his personal need given in favour of the appellant and which are based on sound reasons and evidence on record.

4. Resultantly, while accepting these appeals, we hold that the judgment and order of the High Court is not maintainable. The same are set-aside and the judgment and order of Rent Controller and first appellate Court qua eviction of the respondent from the premises are restored and the respondent is directed to vacate the premises within a period of 6 months without recourse to any execution proceeding by the appellant. The amount of Rs.80,000 which has been directed by the Courts below to be refunded to the respondent is also maintained.

5. Before parting with the judgment we may mention here that the respondent has submitted that he had paid Rs.7,000 as property tax etc. of the premises which is the liability of the appellant and which was not denied by the latter (the appellant), therefore, it is directed that the respondent will adjust the aforesaid amount of Rs.7,000 from the rent to be paid to the appellant. S.A.K./M-136/SC Appeals accepted.