' FAQIR MUHAMMAD KHOKHAR, J.--- The petitioner seeks leave to appeal from judgment, dated 17- 2-2004, passed by a learned Division Bench of the Lahore High Court, Rawalpindi Bench, in R.F.A.
No,42 of 2000.
2. The respondent lady instituted, on 2-5-1998, a civil suit against the petitioner for recovery of possession of suit property bearing House No,19-A, Street No,20, F-7/2, Islamabad, and also for recovery of mesne profits and damages equal to double the amount of rent and telephone charges of Rs,53,711. It was averred in the plaint that the respondent was owner of the suit property which was leased out to the petitioner @ Rs,16,000 per month by an agreement dated 1-3-1991 for a period of two years. The period of lease was extended for another two years by agreement dated 28-2-1993 (Exh.P.2) on the same terms and conditions. It was further renewed on monthly basis.
The rent was enhanced to Rs,17,600 per month from June, 1995 to February, 1996 and @ Rs,20,000 per month from March, 1996 to December, 1997. The respondent requested the petitioner in November, 1997, to vacate the premises on or before 30-4-1998. The petitioner agreed to vacate the suit property within a period of four months and to pay monthly rent of Rs,35,000. However, he neither vacated the house nor did he make payment of the enhanced rent. Therefore, legal notices dated 6-4-1998 (Exh.P.5) and 21-4-1998 (Exh.P.6) on behalf of the respondent determining the lease and to quit the suit property were served upon the petitioner. He also defaulted in the payment of dues of P.T.C.L. In the sum of Rs,53,711 as telephone charges of Telephone No,819292 of the respondent which was installed in the house and used by the petitioner. In his written statement, the petitioner denied the enhancement of the rent of Rs,35,000 per month. He further pleaded that he had incurred' expenses of Rs,70,000 for renovation of the suit property. The Civil Judge, First Class, Islamabad, after framing necessary issues and recording evidence of the parties decreed the suit of the respondent with costs by judgment and decree dated 14-4-2000. A decree for Rs,53,711 on account of telephone charges was also passed. Mesne profits/damages Rs,40,000 per month from May, 1998 till vacation of the house were also awarded. Therefore, the petitioner preferred R.F.A. No,42 of 2000 which was dismissed by a learned Division Bench of the Lahore High Court, Rawalpindi Bench, by the impugned judgment, dated 17-2-2004. Hence this petition for leave to appeal.
3. The learned counsel for the petitioner vehemently argued that the impugned judgment of the High Court as well as that of the trial Court were not sustainable at law for awarding the mesne profits making the petitioner liable to pay double the amount of rent. Even otherwise, the respondent had not produced any evidence to prove any actual loss suffered by her on account of holding over the suit property by the petitioner. The learned counsel contended that once the respondent had accepted rent for the holding over period, she was not entitled to claim damages at double the amount of rent. She was not allowed to approbate and reprobate. The learned counsel stated that the petitioner had already handed over the vacant possession of the suit property to the respondent. It was lastly submitted that by virtue of the provisions of sections 112 and 116 of the Transfer of Property Act No,IV of 1882, (hereinafter referred to as the Act) the respondent having accepted the monthly rent would be deemed to have renewed the lease.
Therefore, the question of payment of any mesne profits or damages by the petitioner for the period of holding over did not arise. He relied on the cases of Ch. Noor Hussain v. Ch. Allah Bakhsh and others 1984 SCMR 446, Agricultural Development Bank of Pakistan through its Chairman v.
Sheikh Siraj-udDin and 2 others 1993 MLD 2381 (Lahore), Haji Yaqoob Khan v. Murree Cantonment Board, Murree 1997 CLC 108 (Lahore), Mst. Noor Sultan v. Messrs Burmah Shell Oil Storage; Distributing Co. (Pak.) Ltd. And another PLD 1968 Kar. 408, Boman Abadan Irani and others v.
Jehangir J. Mobed and others PLD 1967 Kar.
449.
4. On the other hand, the learned counsel for the respondent argued that the trial Court as well as the High Court had recorded concurrent findings of fact based on proper appreciation of evidence on record to which no exception could be taken. The service of legal notices upon the petitioner under section 106 of the Act for determination of the lease had been duly proved. The High Court justifiably agreed with the trial Court that the petitioner was liable to make payment of the rent due @ Rs,20,000 per month from January, 1998 to April, 1998 and mesne profits at double the amount of rent i,e, Rs,40,000 per month from May, 1998 till vacation of the demised premises, after deduction of the amount, if any, already deposited by the petitioner, along with a sum of Rs,53,711 as telephone charges. The learned counsel next contended that the decree of the trial Court for awarding mesne profits of double the amount of rent as affirmed by the High Court was in conformity with the law laid down in the cases of Messrs Rahman Cotton Factory v. Messrs Nichimen Co. Ltd. PLD 1976 SC 781 and Dawood Hercules Chemicals Limited v. Water and Power Development Authority 1991 CLC Note 269 p.207. It was lastly submitted that the petitioner had caused substantial damage to the suit property thereby imparing its utility and the respondent would have to incur an expenditure of at least of Rs,15,00,000 for repairs/renovation of the house to bring it in a proper shape.
5. We have heard the learned counsel for the parties at length and have also gone through the available record. The trial Court as well as the High Court recorded concurrent findings of fact supportable from evidence that the petitioner continued in possession of the suit property without the consent of the respondent lady after the determination of the lease. Ordinarily, we are not expected to substitute findings of fact for those recorded by the Courts of competent jurisdiction.
The petitioner was rightly held by the Courts to be liable to hand over its possession to the respondent along with the rent @ Rs,20,000 per month from January, 1998 to April, 1998 and mesne profits @ 40,000 per month from May, 1998 till vacation of the suit property along with recovery of Rs,53,711 on account of telephone charges. The lease between the parties was determined by notices (Exh.P.5 and 6). Thereafter, the petitioner was not entitled to retain the possession of the suit property and was bound in law to deliver the vacant possession of the suit property to the respondent forthwith. Since the petitioner failed to make payment of monthly rent @ Rs,20,000 from January, 1998 to April,. 1998, therefore, it could not be said that there was implied renewal of the lease of the suit property or that it was a case of holding over by the petitioner. Even otherwise, the respondent did not take a specific plea in his written statement as to further extension of lease or holding over within the meaning of section 116 of the Act. In the case of Ch. Noor Hussain (supra) referred to by the learned counsel for the petitioner himself, it was held that "in order to succeed in establishing his right to the renewal of lease by holding over, the onus of the proof laid heavily upon the lessee. He had to prove that after the determination of the lease, the lessor or his legal representative had accepted the rent from the lessee or had otherwise assented to his continuing in possession. It was further observed that for valid reasons the receipt of rent before the determination of lease was not considered sufficient to satisfy the requirements of law for affecting the renewal of lease by holding over. There was no other evidence that the respondents had assented to the petitioner's continuing in possession. The learned counsel for the petitioner failed to point out any misreading or non reading of material evidence on record."
6. In the peculiar facts and circumstances of the present case, the trial Court as well as the High Court. Were correct in treating the petitioner to be a tenant at sufferance and not by holding over within the meaning of sections 112 and 116 of the Act. No exception could be taken to the liability of the petitioner for payment of mesne profits at double the amount of rent for the period he continued to occupy the suit B property by sufferance after determination of lease. A similar view was taken in the case of Messrs Rehman Cotton Factory (supra), Sheikh Liaqat Ali v. Riaz Ahmed C.P.L.A. No,1322 of 1999, decided by this Court on 17-11-1999, Kirpa Ram Brij Lal v. Municipal Committee, Amritsar and another AIR 1929 Lah. 547, Harry Kempson Gray and another v. Bhagu Mian and others (1929) 57 Indian Appeals 105 PC, Gurudas Kundu Chowdhury and others v.
Hamendra Kumar Roy and others AIR 1929 PC 300, Dawood Hercules Chemicals Limited (supra), Federation of Pakistan through Secretary Ministry of Housing and Works, Islamabad v. Mst. Ismat Qayyum Malik PLD 1994 Lah. 360, Ganga Dutt Murarka v. Kartik Chandra Das and others AIR 1961 SC 1067, Bhawanji Lakhamshi and others v. Himatlal Jamnadas Dani and others AIR 1972 SC 819; Morrison v. Jacobs (1945) 1 KB 577, Sundar Singh and others v. Ram Saran Das AIR 1933 Lah. 61, Ganga Ram v. Mt. Shib Devi (1898) 33 PR 1898, Pirbhu Dial v. Ram Chand (1904) 5 PR 1904, Mian Abdur Rashid v. Province of Punjab PLD 2003 Lah. 389; Shabnum Ashraf v. Muhammad M. Iqbal 2003 YLR 495 and Rure Khan v. Ghulam Muhammad AIR 1924 Lah.
643.
7. In the case of Messrs Rehman Cotton Factory (supra), the distinction between the tenancy or lease by sufferance and by holding over was clearly stated as under:-- "As to the submission that the appellant's position after the 30th June, 1956 continued to be that of a tenant "holding over" within the meaning of section 116 of the Transfer of Property Act, there is clear distinction between a tenant continuing in possession after the determination of the lease with the consent of the lessor whether express or tacit and a tenant continuing in possession without the consent of his lessor. In the latter case the lessee's position is that of a 'tenant by sufferance" in the language of the English Law. Under section 116 of the Transfer of Property Act, the essential condition for treating a lessee, as tenant "holding over' is that the lessor accepts rent or otherwise assents to the lessee's continuing in possession. But there is not a speck of evidence to that effect: Rather all indications on the record point to the opposite. It is not denied that twice the respondent peremptorily refused the appellant's request for extension of lease beyond the 30th June, 1956, because the respondent had decided to re-enter the business of ginning cotton in Pakistan, itself. Therefore, the Courts rightly concluded that the .Appellant's possession of the factory after the 30th June, 1956 was contumacious and therefore, wrongful. Hence the liability to pay damages."
' In Halsbury's Law of England, Fourth Edition, Re-issue, 1994, Vol.27(1) p.163, para.176, it is stated that "A person who enters on land by a lawful title and after his title has ended, continues in possession without statutory authority and without obtaining the consent of the person then entitled, is said to be a tenant at sufferance, as distinct from a tenant at will who is in possession with the landlords' consent". We may also observe here that the provisions of the Act are not applicable as such to Islamabad Capital Territory. Their strict and meticulous adherence may not be insisted upon in all cases. Nevertheless, the principles of equity, justice, and good conscience thereof are generally followed. Reference may usefully be made to the cases of Barkat Ullah Khan v. Abdul Hamid 1981 SCMR 1200 and Ch. Hamid Ali v. Ch. Rehmat Ali and 5 others 1993 CLC 1409 and Shabnam Ashraf (supra).
8. In our view, the impugned judgment does not suffer from any legal infirmity so as to warrant interference by this Court. Even otherwise this is not a fit case for grant of leave to appeal under Article 185(3) of the Constitution of Islamic Republic of Pakistan.
9. For the foregoing reasons, we do not find any merit in this petition which is dismissed and leave to appeal is refused accordingly.