' IJAZ-UL-HASSAN KHAN,' J.--- This direct appeal has been filed by Mian Muhammad Amar Yousaf, appellant, against judgment dated 2-9-2002 passed by a learned Division Bench of Lahore High Court, Rawalpindi Bench, Rawalpindi partly allowing R.F.A. No,255 of 1993 preferred by respondent Government.
2. Precisely stated the facts of the case are, that appellant leased out his House No,10, Street No,51, Sector F.8/4, Islamabad to respondent firstly from 31-7-1982 and secondly from 1-8-1986 to 31-7- 1989. The rent was fixed at the rate of Rs,5600 per month for second term. After expiry of the lease period, appellant filed a suit seeking decree for possession of the house and recovery of arrears of Rs,1,91,200 from 1-8-1989 to 31-12-1991 and onwards at the rate of Rs,12,000 per month, till its vacation. The suit was resisted on all grounds legal as well as factual. In view of the pleadings of the parties, following issues were framed for trial:--
(1) Whether the suit is not maintainable under the law and facts ? OPD
(2) Whether the lease stands valid by way of holding over the defendant as a tenant? OPD
(3) Whether the plaintiff is entitled to get the possession of the suit-land? OPD
(4) Whether the plaintiff is entitled to recover an amount of Rs,1,91,200 from 1-8-1989 to 31-12-1991 and Rs,12,000 per month till the vacation of the suit? OPP.
(5) Relief.
3. After recording such evidence, as the parties wished to adduce in support of their respective stances, learned Civil Judge, Islamabad, decreed suit vide judgment dated 10-2-1993, for possession of the house and recovery of compensation at the rate of double rent w,e,f, September, 1991, till handing over possession of the house. An appeal was filed there against before learned High Court, which was partly allowed vide the impugned judgment modifying compensation at the rate of 10% of the rent.
4. Mr. Abdur Rashid Awan, Advocate appearing on behalf of the appellant, bitterly criticized the impugned judgment and attempted to argue that learned High Court has proceeded on wrong premises and failed to appreciate the law laid down by this Court in Habib Bank Limited v. Dr. Munawar Ali Siddiqui 1991 SCM R 1185. Learned counsel also contended that respondent was repeatedly asked to vacate the house, in question and to make payment of arrears of compensation from 1-8-1989 to 31-12-1999 but respondent did not accept the demand for reasons not far to seek.
5. Ms. Nahida Mehboob Elahi, learned Deputy Attorney General, representing respondent- Government, refuted the arguments of learned counsel for the appellant and defended the impugned judgment forcefully maintaining that same does not suffer from any illegality or irregularity inviting interference by this Court.
6. After reappraisal of the material on file and hearing learned counsel for the parties at length, we find ourselves in agreement with learned counsel for the appellant that learned High Court has failed to appreciate the law laid down in the case reported as Habib Bank Limited v. Dr. Munawar Ali Siddiqui 1991 SCM R 1185 wherein it was held that:-- "It may be advantageous at this stage to refer to the case of Darbarilal Mudi and others v.
Reneegano Coal Association Ltd. Reported in AIR 1944 Patna 30, in which a Division Bench of the Patna High Court held that a permanent lease, which has not been created by a registered instrument, is void under the provisions of section 107 and the tenancy is under section 106 deemed to be a lease from month to month terminable either on the part of the lessor or the lessee by 15 days notice."
7. We also find that learned High Court has failed to appreciate the fact that lease period was expired on 31-7-1989 and no fresh agreement has been executed. The respondent was liable to pay the compensation of use of said house from 1-8-1989 till its vacation. A notice dated 27-8-1991 was also served upon the respondent demanding the vacation and recovery of compensation but the same remained un responded. It may be pertinent to mention here that possession of the house has already been handed over to appellant on 17-12-1993 and dispute is with regard to recovery of arrears of rent, received till 31-5-1992. The house is situated in a posh locality of Islamabad and could fetch much more rent than demanded.
8. For the foregoing reasons, we allow the appeal, set aside the impugned judgment and maintain the judgment and decree of the trial Court. No order as to costs.