' Through this petition under Article 199 of the Constitution the petitioner/tenant, has called in question the order of the respondent No.3, dismissing the petitioner's First Regular Appeal No.27 of 2002and allowing First Regular Appeal No.33 of 2002, filed by the respondent No.1 landlord, against an order of the respondent No.2 passed in Rent Case No.53 of 1999, dated 14-1-2002, directing the petitioner's ejectment from two shops leased out to him by the respondent No. 1 .
2. The petitioner was admittedly tenant of the respondent No..1 in respect of two shops, though there appears to be some dispute as to the date of commencement of tenancy. Nevertheless it is agreed that on 25-4-1998 the respondent No.1 served a legal notice upon the petitioner alleging that he had been indulging in illegal activities and attempting to dispose of Shop No.6 by pretending to be its owner and receiving token money in the sum of Rs.50,000 from one Mr. Munawar. The petitioner was required to hand over vacant possession to the landlord. The aforesaid notice was replied to by the petitioner on 9-5-1998 and receipt of Rs.50,000 from Munawar Hussain was not disputed. It was however, alleged that it was respondent No.1 himself who persuaded the petitioner to accept the amount and assured the petitioner that thereafter he would change the receipt in the name of Munawar Hussain after charging Rs.1,00,000 as all the shops in the building were let out on goodwill basis. It was further alleged that subsequently the respondent No.1 started demanding Rs.2,00,000 for changing receipt, whereupon the petitioner was compelled to return Rs.50,000 to Munawar Hussain alongwith penalty of Rs.25,000. It was further alleged that the respondent No.1 had himself received Pagri of Rs.50,000 each for the two shops while executing the tenancy agreement dated 23-10-1977.
3. Be that as it may, it appears that in May, 1998, the respondent No.1 filed an application for ejectment of the petitioner from the two shops on the ground of bona fide personal need of his two sons. Subsequently this application was allowed to be withdrawn and a fresh ejectment application bearing No.63 of 1999 was filed on the ground of personal need as well as sub-letting.
With respect to sub-letting it was alleged that though the deal with Munawar Hussain was cancelled by the petitioner upon the protest of the respondent No.1 he subsequently handed over Shop No.5 to one Jameel Behzad Khan, without permission of the landlord. The petitioner in his written statement contested the ejectment application on both grounds and it was contended that the alleged sub-lessee was only a relative of the petitioner and used to visit him in the shop. On the question of personal need the petitioner contended that the agreement dated 23-10-1977 did not allow the respondent No.1 to get the shops vacated by the lessee. Evidence was led before the learned Rent Controller who found that the alleged tenancy agreement dated 23-10-1977 produced by the petitioner was a forged document and that the respondent No.1 had proved his case as to thebona fide personal need of his two sons. On the question of sub-letting she found that the respondent No.1 had not been able to prove that Jameel Behzad Khan was a sub-lessee but in view of her finding on the earlier issues she granted the ejectment application.
4. The petitioner preferred an appeal against the aforesaid order of ejectment before the learned District Judge, Karachi Central (respondent No.2) acting as Appellate Authority. The Appellate Authority upheld the finding on the.Ground of personal need, observing that the petitioner had nowhere disputed the contention that the respondent No.1 required the shops for the occupation of his sons in good faith. As regards the petitioner's contention that the landlord had waived his right to seek ejectment on the ground of personal need after having received Pagri of Rs.1,00,000 for the two shops, the Appellate Authority held that the concept of Pagri was not recognized by law and therefore, the tenant could not claim any right onthe basis of such an illegal transaction.
5. The respondent No.1 had also filed a cross-appeal, being First Regular Appeal No.33 of 2002, questioning the finding of the Rent Controller on the ground of sub-letting in favour of the petitioner. Disagreeing with the conclusion recorded by the learned Rent Controller on this aspect of the matter, the Appellate Authority observed that the petitioner's brother who had filed his affidavit-in-evidence did not even state that the shop in question was in possession of the petitioner and Jameel Behzad Khan nothing to do with it. Accordingly, the finding of the Rent Controller was reversed and this question was also decided in favour of the respondent No.l.
6. Mr. S.M. Aamir Naqvi, learned counsel for the petitioner vehemently argued that the two Courts below were not justified in treating the "agreement" produced by the petitioner as forged and the aforesaid agreement unmistakably showed that the respondent No.1 had divested himself of the right to seek ejectment. He further argued that in any event since the ground of sub-letting and personal need had not been taken up by the respondent No.1 in his legal notice dated 25-4-1998 both these grounds were afterthought and merited no serious consideration. Mr. Anwar Hussain on the other hand, argued that the finding on the question of personal need was concurrent and in any event it was not proper for this Court to interfere with finding of facts recorded by the Tribunal below.
7. Without going into the question of genuineness or otherwise of the so-called agreement dated 23-10-1997 which is primarily a finding of fact it may be appropriate to reproduce the operative provisions of the agreement:-- "Whereas the lessor is at the date of these presents seized andpossessed of and is sufficiently entitled to Shops Nos.5 and 6 inGulberg Munaweri Market No.B-12, F.B. Area, Karachi.
' And whereas the lessor has agreed to let and the lessee has agreed to take the above shops on rental basis from the lessor on the following terms and conditions:--
(1) That the lessee has agreed to pay Rs.200 (rupees two hundred only) per month as rent of the above each shop to the lessor, i.e. Rs.200 per shop.
(2) That the lessor delivered the possession of the above two shops to the lessee.
(3) That this agreement will be operative as from 1-11-1977.
(4) That the lessee can make additons/alterations in the said shops to which the lessor will have no objection whatsoever.
(5) That the lessor will have no objection to the manner of any business in the said two shops.
(6) That the lessor will have no right to get the above two shops vacated by the said lessee.
(7) That the lessee can get the said two shops transferred in the names of his relatives or any other persons and to which the lessor will have no objection."
8. Even if the document is to be considered genuine it could hardly be described as a tenancy agreement. Clauses 6 and 7 thereof contain a stipulation to the effect that the lessor will have no right to get the shop vacated (under all circumstances) and the lessee will have the right to have the shops transferred in the name of his relatives or any other person could only be treated as sale or a lease in perpetuity. No such transaction could be effected in the absence of a registered instrument. Therefore, even if the so-called agreement be treated as genuine it could not have been admitted in evidence, and could not create any rights in immovable property. Moreover, it does not even mention the lump sum amount allegedly paid by the petitioner nor has the petitioner characterLal it as an agreement of sale and claimed the protection of section 53-A of Transfer of Property Act.
9. Mr. Anwar Hussain argued that the right to eject a tenant on the ground of personal need has been conferred upon a landlord by law and could be taken away by a contract to the contrary under any circumstances. With all respects I am not inclined to go so far inasmuch as there have been cases where Courts have taken the view that when a landlord leases out a premises for a specified duration disentitling himself from ejecting the tenant upon the latter's compliance of the terms of the lease he cannot assert his statutory rights to override such terms. One may refer to the pronouncement of the Honourable Supreme Court in Zehra Begum v. Pakistan Burma Shell (PLD 1984 SC 38). The above principle however does not appear to be attracted in the instant case because the so-called agreement which seems to suggest that the landlord had for ever abdicated his rights of ownership and possession can hardly be treated as a lease agreement. At the same time however, there is considerable force in Mr. Anwar Hussain's contention that no agreement purporting to abdicate the statutory right of a landlord in consideration for a Pagri is legally enforceable in view of the pronouncement of the Honourable Supreme Court in Azizur Rehman v. Pervez Shah (1997 SCM R 1819).
10. Mr. Aamir Naqvi then attempted to argue that respondent No. 1 had not been able to establish the bona fide personal need of the shops for the use of his sons. He referred to a judgment of this Court in Noorun Nisa v. Qamar-ul-Huda (1988 CLC 1822) wherein a learned Single Judge of this Court took the view that a mere statement of the landlord that he needed the premises for personal use was not sufficient for seeking ejectment of a tenant. With profound respects I am constrained to observe that the above view is no longer good law, keeping in view the subsequent pronouncement of four Members Bench of the Honourable Supreme Court in Saira Bai v. Syed Anisur Rehman (1989 SCM R 1366) and several subsequent decisions. It may be added in any case no evidence in rebuttal of the respondent's assertion as to this aspect of the matter was adduced by the petitioner.
11. For the foregoing reasons I am satisfied that the order of ejectment passed by the Tribunals below was founded upon sound reasons and there is no justification for interference in the Constitutional jurisdiction of this Court. The petition is therefore, dismissed in limine.