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Petitioner: FARHAD' KHAN VS Respondent: ASAD ZULFIQAR & others
Court Name: Islamabad High Court Judge(s): Miangul Hassan Aurangzeb Title: FARHAD' KHAN vs ASAD ZULFIQAR & others Case No.: W.P. No. 873 of 2016 Date of Judgment:2016-03-28 Reported As: PLJ 2017 Islamabad 167 Result: Petition dismissed.
JUDGMENT
JUDGMENT Through the instant writ petition, the petitioner has impugned the judgment dated 20.11.2015, passed by the Court of learned Rent Controller, and the judgment dated 24.02.2016, passed by the Court of the learned Additional District Judge-West, Islamabad. Vide the said Judgment dated 20.11.2015, the Court of the learned Rent Controller allowed Respondent No. l's eviction petition under Section 17 of the Islamabad Rent Restriction Ordinance, 2001 ("IRRO"), and vide judgment dated 24.02.2016, the learned appellate Court dismissed the petitioner's appeal under Section 21 of the IRRO and maintained the said judgment of the learned Rent Controller. 2. The facts essential for the disposal of this petition are that basement Shop No. 05, Plot No. 08, Class III Shopping Centre, Sector F-7/2, Rana Market, Islamabad (hereinafter referred to as the "rented premises") are in occupation of the petitioner (Farhad Khan) as a tenant. Respondent No. 1 (Asad Zulfiqar) is the lawful owner of the entire commercial -plot/building in which the rented premises are situated. This plot/building was transferred in the name of Respondent No. 1 through transfer Letter No. CDA/EM-27(2213)/92/74, dated 12.01.2012. The previous owner of the building had rented out the rented premises to the petitioner. On 11.04.2013, Respondent No. 1 filed an eviction petition under Section 17 of the IRRO against the petitioner. The grounds taken in the said eviction petition inter-alia were (1) the expiry of the lease agreement, (2) default in the payment of rent since February 2013, (3) personal bonafide need of Respondent No. 1 and the renovation of the building, (4) violation of the terms of the lease agreement, and (5) violation of the Capital Development Authority bye-laws. The petitioner contested this eviction petition by filing his reply. From the divergent pleadings of the parties, the learned Rent Controller framed the following issues:--
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1."Whether the lease agreement is expired? OPP Whether the respondent had failed in payment of rent? OPP 3. Whether the respondent has impaired the demised premises without permission of landlord? OPP 4.Whether the petitioner has required the demised premises for his personal bonafide need? OPP 5.Whether the petition is liable to be dismissed? OPR 6.Relief." 3.In support of his eviction petition, Respondent No. 1 produced three witnesses, namely, Muhammad Mehboob (A.W.1), Muhammad Aftab (A.W.2) and Raja Zulfiqar. The petitioner himself entered the witness box as (R.W.1). The trial before the learned Rent Controller culminated in the judgment and decree dated 20.11.2015, whereby Respondent No. l's eviction petition was allowed. The Court of the Additional District Judge-West, Islamabad, vide judgment dated 24.02.2016 dismissed Respondent No. l's appeal against the said judgment & decree. The petitioner in the instant writ petition has impugned these concurrent judgments. 4.Learned counsel for the petitioner, at the very outset, submitted that the period of fifteen days given by the learned Rent Controller to the petitioner to vacate the rented premises was too short. She further submitted that in order to enable the petitioner to find alternative premises to run his business, reasonable time, in terms of the proviso to Section 17(2)(v) of the IRRO, should have been given to the petitioner for putting the landlord/Respondent No. 1 in possession of the rented premises. Learned counsel for the petitioner insisted that a reasonable period, in this case, would be six months and not less than that. The learned counsel for Respondent No. 1 was not inclined to give such a long period to the petitioner given the rigors of litigation that Respondent No. 1 had been subjected to since 2013. Therefore, this Court asked the learned counsel for the petitioner to argue her case on merits. 5.Learned counsel for the petitioner drew the attention of the Court to an "iqrarnama" dated 04.10.2011 executed between the petitioner and one Mushtaq Ahmad Aali, and submitted that this iqrarnama was in fact a sub-lease agreement under which the petitioner was occupying the rented premises; that Mushtaq Ahmad Aali was the lessee of the original owner; that the petitioner was not in possession of the lease agreement executed with the original owner; that the said sub- lease agreement was valid for a period of two years; that expiry of the lease agreement cannot be a ground for the tenant's eviction under the provisions of the IRRO; that the petitioner, as a sub- lessee, came within the definition of a "tenant" under Section 2(j) of the IRRO; that Respondent No. 1 had not obtained permission for the reconstruction of the building from the Capital Development Authority as required under Section 17(2) (v) of the IRRO, hence, he could not seek the petitioner's eviction on the ground of renovating the rented premises; that since the owner of the rented premises is residing abroad, therefore his claim for the personal bona fide use of the rented premises is not tenable; and that the owner of the rented premises never entered the witness box. In support of her submissions, she placed reliance on the following cases:-- (i)Muhammad Ajmal Khan vs. Shahid Rafique reported as 2012 SCMR 854, where it was held that it was obligatory for the owner/landlord of the building to obtain the necessary sanction for reconstruction or erection from the relevant authorities at the time of filing of the eviction petition or even during its pendency. (ii)Mst. Nayyar Naheed vs. Malik Zaheer Ullah reported as 2011 YLR 1535, where the Hon'ble Peshawar High Court upheld the eviction order passed by the learned Rent Controller on the plea of the landlady that the rented premises required reconstruction and that the Municipal Corporation had issued a notice for the - demolition of the rented premises on account of being dilapidated. The eviction order was passed even though the approval of the reconstruction- plan had not been annexed with the ejectment petition but was produced during the proceedings
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before the Rent Controller. (iii)Mehrai Din and another vs. Muhammad Yasin and two others reported as PLD 1968 Lahore 20, _where it was held that when the rented property had been sublet, it was fair and proper that the sub-tenant should be treated as a party by the landlord in the eviction petition. Furthermore, it was held that before passing an eviction order the Rent Controller has to record that the tenant had sublet the rented premises to a sub-tenant. (iv)Hakim All vs. Muhammad Salim and another reported as 1992 SCMR 46, where it was held that where the relationship of landlord and tenant was Omitted but the rent agreement was not in writing or was not executed in the manner provided in the Sindh Rented Premises Ordinance, 1979, the terms and conditions of such an agreement, if inconsistent with the provisions of the said Ordinance, would be invalid to the extent of the inconsistency. (v)Zhange Guogen vs. Mst. Jahanzeba Begum and others reported as 2013 CLC 963. In this case, the Rent Controller had passed an eviction order mainly on the ground that according tt the terms of the rent agreement the tenant had failed to pay a fine to the landlady for the delay in the payment of rent, and had also not paid the increase rent. The condition of payment of Rs. 500/- per day in the rent agreement was in the nature of a penalty. It was held by the Hon'ble Islamabad High Court that Section 11 of the IRRO specifically prohibited such a penalty, and the rent agreement to that extent was void ab initio. The Hon'ble High Court, in exercise of constitutional jurisdiction set aside the eviction orders passed by the Rent Controller and dismissed the eviction petition. (vi)Unair Ali Khan and others vs. Faiz Rasool and others reported as PLD 2013 SC 190, where it was held that a power of attorney should be construed strictly and only such powers, which are expressly and specifically mentioned in the power of attorney, must be exercised by the agent as considered to have been delegated to him. (vii)Muhammad Imran vs. Ghulam Mustafa and six others reported as 2015 YLR 2683, where it was held that the landlord was bound to give a plausible and satisfactory explanation for his insistence on occupying a particular premise in preference to other premises owned by him for his bona fide use. As the landlord and his son were already carrying on business in other premises owned by them, it was held by the Hon'ble High Court that no case for a personal bona fide requirement was made out by the landlord. (viii)As/am Ali Shah vs. Muhammad Azam reported as 2015 CLC 1204, where it was held by the Hon'ble Lahore High Court that personal bona fide need for the brother of the landlord was not recognized as a valid ground for the eviction of a tenant. Furthermore, it was held that violation of the terms and conditions of a rent agreement was nowhere provided in the West Pakistan Urban Rent Restriction Ordinance, 1959, as a ground for the eviction of a tenant. (ix)Dr. Abdul Basit vs. Additional District Judge-II, Abbotabad & 2 others reported as 2012 CLC 906, where it was held that the mala fide intention of the landlord for enactment on the ground of personal need could only be ascertained if it was proved that the landlord was in fact not "needy" but was "greedy" and only wanted to enhance the rent or to rent out the premises to another person on a higher rent. Furthermore, it was held that "good faith" was the prime and essential ingredient for enactment of a tenant. (x)Mahesh Kumar Chawala vs. Haji Abdul Karim reported as 2011 CLC 1844 wh ere it was held that since the eviction petition was on the ground of the personal bona fide need of the landlord's son, his appearance before the Court and the recording of his statement was necessary being the proper person to explain his requirement. As the statement, of the landlord's son, for whose use the premises were required, had not been recorded, the ejectment petition filed by the landlord was dismissed.
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6.On the question of the tenant being granted reasonable time to vacate the rented premises, the learned counsel for the petitioner placed reliance on the cases of (1) Tahir Mehmood vs. National Bank of Pakistan reported as 2015 CLC 1247, where the tenant was directed to vacate the rented premises within a period of four months; (2) Pakistan Institute of International Affairs us. Naveed Merchant reported as 2012 SCMR 1498, where the tenants were allowed two months' time to vacate and handover physical possession of the rented premises to the landlord; (3) Ahmad Jan vs. Anjuman-eIslamia reported as 2012 CLC 179, where the order of the Rent Controller directing the tenants to vacate the rented premises within four months, and directing the landlord to give shops to tenants in the newly constructed building was upheld by the Hon'ble High Court. 7.On the other hand, learned counsel for Respondent No. 1 submitted that in January, 2012 the building in which the rented premises are located, was transferred to Respondent No. 1; that the rented premises had been rented out to the petitioner by the previous owner; that when Respondent No. 1 purchased the rented premises, the petitioner was paying monthly rent at the rate of Rs. 35,000/-; that Respondent No. 1 had requested the petitioner to vacate the rented premises, but to no avail; that since the month of February, 2013 the petitioner had stopped paying the rent; that Respondent No. 1 required the rented premises for his personal bona fide use; that these factors compelled Respondent No. 1 to file an eviction petition under Section 17 of the IRRO against the petitioner before the Court of the learned Rent Controller, Islamabad, on 11.04.2013; that the grounds for the eviction petition are clearly set out therein; that in the reply to the said eviction petition, the petitioner admitted that there was no written lease agreement between the parties, and that rent for the months of February to June, 2013 would be deposited in the Court; that the factum of the sub-lease was not pleased by the petitioner in his reply; that as the said reply was filed on 22.06.2013, rent had not been paid or deposited in the Court by the petitioner until then; that rent was deposited by the petitioner under orders of the Court passed on 21.01.201-5 under Section 17(8) of the IRRO; that an amount of Rs. 7,35,000/- was deposited on 14.10.2014 as rent from January 2013 to October 2014, that the learned Rent Controller had ordered for rent to be deposited at the rate of Rs. 38,000/- per month, but the rent deposited by the petitioner on 12.03.2015 was only Rs. 35,000/-; that this default rendered the petitioner liable to eviction under Section 17(9) of the IRRO, and in accordance with the law laid down in the case of Mushtaq Ahmad Kiani vs. Bilal Umair, reported 2009 SCMR 1008; that the petitioner did not pay the statutory increase in rent under Section. 10 of the. IRRO; and that under Section 5 of the IRRO, the rent agreement between the landlord and tenant is required to be in writing 8.Learned counsel for Respondent No. 1 further submitted that Section 17(d) of the Registration Act, 1908, required a lease agreement for a term exceeding one year to be. Compulsorily registered; that the consequences of non- registration of such a lease agreement are provided in Section 49 of th3 Registration Act, 1908, hence, an unregistered lease deed for a term exceeding one year cannot operate to create any right or interest in an immovable property. 9.Learned counsel for Respondent No. 1 read the evidence recorded by the learned Rent Controller to establish the absence of a rent agreement and default in the payment of rent on the part of the Petitioner It was further submitted that the petitioner, in his reply to the eviction petition, did not deny that the rented premises were required by Respondent No. 1 for his personal bona fide need; that Respondent No. l's witnesses were not subjected to any cross-examination on the question of Respondent No. l's personal bona fide need for the rented premises; that it is settled law that if a witness is not cross-examined on a particular point, it is deemed to have been accepted and admitted. Reference in this regard was made to the law laid down in the cases of Sheraz Tufail vs. The State reported as 2007 SCMR 518 and Chief Engineer Irrigation. Department, N.-W.F.P. Peshawar & two others vs. Mazhar Hussain & two others reported. as PLD 2004 SC 682. Additionally, it was 'submitted that when the landlord makes a statement on oath that the rented premises are
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required for his bona fide need, the onus shifts on the other side. Reference in this regard has been made by the learned counsel for the petitioner to the cases of (1) Muhammad Shoaib Alam & others vs. Muhammad Iqbal reported as 2000 SCMR 903; (2) Mst. Jehan Ara through Attorney vs. Raja Zafarullah Janjua reported as PIA) 2003 SC . 277; and (3) Muhammad Iqbal vs. Syed Sohail Wajid Gillani reported as 2004 SCMR 1607. In support of his submissions, learned counsel for Respondent No. 1 placed reliance on the following case law:-- (a) Jahan Ara through Attorney vs. Zafarullah Janjua, reported as PLD 2903 SC 277, where it has been held at Paragraph '9 as follows:- 9. "We are afraid the appellant cannot be non-suited only on the ground of non-examining herself in support of her personal bona fide need and that her representation through attorney was fatal to her case. The record reveals that the appellant has been able to establish her case by producing sufficient evidence of her attorney, namely Altaf Hussain and one Dr. Tehsin-urRehman in support of, her contention. Not even a single question was put to the attorney of the appellant to rebut the claim of her personal bona fide need as such the judgment of the learned High Court is not sustainable and it has traveled beyond the scope of the pleadings of the parties. Above mentioned witnesses, namely, Altaf Hussain and Dr. Tehsin-ur-Rehman had categorically stated in their evidence that the appellant needed the premises for her bona fide personal need and she demanded the premises many a time for vacating the premises in question but the respondent refused to vacate the same. This version was never controverted by the respondent in his evidence as such the finding recorded by the High Court is not sustainable in law and in thus set aside whereas the judgment of the Rent Controller being based on sufficient reasoning is maintained." (b)Muhammad Shoaib Alam vs. Muhammad Iqbal reported as 2000 SCMR 903, where it was held that the statement of the landlord on oath if consistent with the application for ejectment and not shaken in cross-examination or disapproved in rebuttal is sufficient to prove that the requirement of the landlord was bona fide. (c)Mst. Rukhsana Bhatti vs. K & N's Food (Pvt.) Ltd and others reported as PLD 2013 Lahore 119. In this case, it was held by the Hon'ble Lahore High Court at Paragraph 5 of the report as follows:-- "It has been consistently held by the Hon'ble Supreme Court that a lease agreement which is beyond a period of one year requires registration by virtue of the provisions of Section 107 of the Transfer of Property Act, 1882, read with Sections 17(d) and 49 of the Registration Act, 1908. In case a lease agreement is for a term exceeding one year or reserves a yearly rent and is not registered then it is bad in law. In such a case the relationship between the landlord and tenant is to be regulated by the provisions of the Statute in question which in the instant case is the Act, ibid. It has been further held that even though the lease agreement would be bad in law yet it can be acted upon for other collateral terms and conditions between the parties." (d)M.K. Muhammad vs. Muhammad Abu Bakar reported as 1993 SCMR 200, where it was held that since an agreement of tenancy for an indefinite period was an agreement for a period longer than eleven months, it required the registration. The agreement in question having not been registered was bad in law apart from being violative of Section 7 of 'the West Pakistan Urban Rent Restriction Ordinance, 1959, and thus, not enforceable. (e)Habib Bank Limited vs. Dr. Munawar Ali Siddiqui reported as 1991 SCMR 1158, where it was held that a lease of an immovable property from year to year or for any term exceeding one year or reserving a yearly rent could only be made by a registered instrument. 10.I have heard the arguments of the learned counsel for the parties and have perused the voluminous record with their able assistance. 11.I propose, first to deal with the contention of the learned counsel for the petitioner that the expiry of the lease agreement or the non-existence of a lease agreement cannot be a ground for evicting the tenant under Section 17 of the IRRO. The petitioner in his examination-in-chief before the
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learned Rent Controller deposed that he is in occupation of the rented premises as a tenant since 2010 and an oral tenancy agreement was made with Muhammad Azam, which was to be valid for fifteen years. He also deposed that a written rent agreement was not executed. In his cross- examination, the petitioner deposed that there is no written rent agreement in existence, and that Respondent No. 1 had not executed or extended any rent agreement with or in favour of the petitioner. He further deposed that he had not executed any rent agreement either with the previous owner or with the present owner of the rented premises. As the sub-lease agreement finds no mention in the petitioner's testimony or in his reply to the eviction petition, the same cannot be taken into consideration by this Court in its constitutional jurisdiction. 12.In view of the petitioner's evidence as mentioned above, an admitted position emerges that the petitioner executed no written rent agreement with the landlord. Section 5(1) of the IRRO, clearly provides that every agreement for letting out a building or rented land shall be in writing and if such an agreement is not compulsorily register able under any law for the time being in force, it shall be attested by the Rent Controller by signing and affixing his seal thereto. 13.Since the petitioner claims that the tenancy was created after the promulgation of the IRRO, and it was for a period of more than one year, it was mandatory required to be in writing and registered. As the alleged tenancy agreement was not reduced into writing and obviously not registered, it could not operate to create any right or interest in favour of the petitioner in the rented premises. 14.Now the vital question that needs to be answered is whether in the absence of a written tenancy agreement or when the tenancy had expired, the landlord could seek the tenant's eviction under Section 17 of the IRRO. This question has been definitively answered in the judgment dated 22.01.2016, passed by the Hon'ble Islamabad High Court in Writ Petition No. 854/2015, titled "Muhammad Mushtaq vs. Muhammad Zubair etc" where, after reproducing Section 17(1) & (2) of the IRRO, it has been held at Paragraph 8 as follows:-- 8. "The bare reading of the provision of law shows that where the tenant infringes any condition on which the building or rented land is held by the tenant that is a ground for eviction. In the lease agreement where it is specifically provided that the lease shall expire on a specific date and the tenant on the referred date fails to deliver the vacant possession of the demised property the same may be considered as a breach of condition of the lease agreement. In this behalf landlord is required to prove that it was a condition on which the property was leased out to the tenant that on expiry of the lease agreement possession of the property shall be handed over to him; whether the lease agreement is in writing or oral or even where after the expiry of written lease agreement the parties continue the arrangement through oral agreement the condition regarding the expiry of the lease may provide to the landlord a ground for eviction if it is proved that intention of the parties was to the effect. Learned counsel for petitioner during the course of arguments referred to the definition of tenant as provided in Section 2(J) of 2001 Ordinance which provides that the tenant includes any person which continues to be in possession or occupation after termination of tenancy. Similarly in Section 6 of the Ordinance, it is provided that no tenancy shall be valid beyond such period as the landlord and tenant may by mutual agreement fix before or after commencement of the Ordinance. The effect of, the referred provisions along with Section 17(2) (ii) (b) ibid is that even after expiry of the lease agreement the tenant continues to qualify as a tenant, however, there has to be a specific expiry date of the lease agreement and in case of failure by the tenant to deliver possession of the property in question to the landlord then the same may amount to breach of condition of tenancy. The Honourable Supreme Court in case titled Qaiser Javed Malik vs. Pervez Hameed (2009 SCMR 846) held that the plain reading of Section 6 of the Ordinance commencing with the use of word "subject to the provision of Section 17"signifies that the provision of Section 17 continues to apply as a ground for eviction of the tenant. It was observed by the Apex
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Court that Section 6 of the Ordinance is in addition to the grounds for eviction and is available exclusively with respect to the property situated within territorial limit where provision of the Ordinance apply. The Honourable Supreme Court in the referred judgment held that after expiry of lease the' tenant is not entitled to retain possession of the rented property and can be evicted on the basis thereof. The referred decision of the Honourable Supreme Court is binding on this Court. Under sub-section (1) to Section 17 of the Ordinance a tenant in possession of the building or rented land shall not be evicted from the same except in accordance with provisions of the section. The bare reading of the referred provision shows that the grounds on which the eviction application can be filed by the landlord are provided in Section 17 and though there is no ground for eviction on the basis of expiry of lease agreement, however, it is reiterated that the effect of Section 6 of the Ordinance read with Section 17(2)(ii)(b) ibid is that a tenant may be evicted if he fails to deliver the possession of the property after expiry of the lease agreement. 15.In view of the above, the expiry of…
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