SAGHEER AHMED QADRI, J. --- Petitioners Saqib Latif, Nasir Latif, Qamar Latif and Jameela Akhtar sons and daughter of Haji Abdul Latif (hereinafter called as 'landlords') filed an ejectment petition against respondent No. 1-Rafe Ullah S/o Malik Mahmood Khan (hereinafter called as 'tenant') on 1.7.2008 on the grounds that they were owners of Shops Nos. 6A and 7A, Block No.7, Markaz F-6, Super Market, Islamabad (hereinafter called as 'demised property') while respondent No. 1 was in possession of the same as tenant; that the tenancy initially was created between the tenant and father of the landlords late Haji Abdul Latif who initially rented out the demised property at a rate of Rs. 7,500/- per month vide lease agreement dated 1.12.1998 till 30.11.2003; that the lease period of demised property now has expired; that as per terms and conditions of the lease agreement a tenant was obliged to increase the rent at a rate of 6% per annum but no such increase was made by the tenant; that under Sections 9 and 10 of the Islamabad Rent Restriction Ordinance, 2001 the lease agreement has already been stood terminated; that the tenant was liable to pay the enhanced rent under Section 10 of the Islamabad Rent Restriction Ordinance, 2001 to which he failed to do so, hence has become rent defaulter; that the landlords after the demise of their father Haji Abdul Latif now required the property for their bona fide personal use and occupation to run the business concerned as one of the landlords, namely, Saqib Latif was already running a departmental store under the name and style of 'Best Price Shopping Centre' and to further enhance their business activities: the demised premises were required by them. Prayed 'that ejectment petition be accepted and tenant be evicted on the grounds mentioned above.
2. This petition was resisted by the tenant through written reply wherein eight preliminary objections were raised regarding maintainability of the petition on the grounds that the petitioners had no cause of action to file the ejectment petition; that the demised premises were not required by them for their bona fide personal use and occupation; that the landlords were already in occupation of sufficient space in the property in their possession to enhance their business activities, therefore, the ground for personal bona fide need is just an excuse' for pressurizing the tenant for enhancement of the rent. It was also agitated that the property in dispute is part and parcel of the portion of property which was leased out to the landlords by the CDA which lease has already been expired, therefore, the petitioners-landlords were not entitled to get eviction of the tenant from the demised premises. Default in payment of rent was also denied. At the end it was prayed that the ejectment petition be dismissed.
3. Out of the divergent pleadings of the parties learned Rent Controllerframed the following seven issues: "(1) Whether the lease agreement stand expired/terminated by efflux of time and has not been extended? OPA
(2) Whether the respondent has wilfully defaulted in payment of enhanced rent and has become defaulter? OPA
(3) Whether the petitioners are in their personal bona fide need of the disputed premises. And are entitled to recover its peaceful possession? OPA
(4) Whether the petitioners have no cause of action or locus stand:"? OPR
(5) Whether the petition is not maintainable? OPR
(6) Whether the petitioners have filed this application male fidley only to get more profit and the landlords are not interested in the business? OPR.
(7) Relief."
Parties led their respective evidence. One the landlords, namely, Saqib Latif appeared as PW-1 and submitted his affidavit (Exh.P1) as a statement who was cross-examined by the learned counsel for the tenant. Learned counsel for the landlords vide statement dated 26.1.2009 while getting submitted on record lease agreement Mark 'A', Legal Notice Mark 'B' attested copies of the power- of-attorneys Mark 'C' and Registered Post Envelope P2 alongwith Receipts TCS Exh.P3 to Exh.P5 closed the evidence..
4. On the other hand, tenant appeared as RW-1 while submitting his affidavit (Exh.R1) who was cross-examined by the learned counsel for the landlords. Learned counsel for the tenant while getting exhibited Receipts about payment of rent Exh.R-2 to Exh.R-108 and Letter Mark A issued by the CDA closed his defence.
5. The learned Rent Controller while deciding issues Nos. 1 and 3 in favour of the landlords, issues Nos. 2, 4, 5 and 6 against the tenant allowed the ejectment petition on the ground of personal use and occupation vide judgment and decree dated 3.6.2009. Feeling aggrieved by this judgment the tenant preferred an appeal which was heard and decided by the learned Additional District Judge, Islamabad who vide impugned judgment and decree dated 18.1.2010 while allowing the appeal reversed the findings of the learned Trial Court (although it is not specifically mentioned about relevant issues)
6. Having dis-satisfied with the judgment and decree dated 18.1.2010 the landlords have now filed this writ petition.
7. Learned counsel for the landlords vehemently argued that findings of the learned Trial Court on issues Nos. 1 and 3 were justified as the personal bona fide needs and occupation of demised premises was proved on record thus the 'ejectment decree was rightly passed. Learned counsel argued that on the point of maintainability of the ejectment petition both the Courts below rightly decided in favour of the - landlords, however on the question of the lease agreement as declared by the learned Appellate Court that as it was perpetual tenancy therefore, ejectment petition on the ground of personal use and occupation was, not maintainable, was wrong conclusion; that the learned Rent Controller rightly held that bona fide personal use and occupation of the demised premises by the landlords was made out and issues Nos. 1 and 2 were decided in their favour. Learned counsel not argued that the interpretation of the agreement. Mark A present on record wherein it was allegedly recorded that was a tenancy to be continued forever is basically against the settled law on the.
Subject. It was further agitated that firstly this lease agreement was not registered therefore, under Section 107 of the Transfer of Property Act, 1882 read with Section 49 of the Registration Act this lease agreement must have been registered and as it was not registered one, therefore, it only can be presumed for a period of less than one year; that the learned Appellate Court while relying on two judgments of Indian Jurisdiction and ignoring the law laid down on this subject by the Superior Courts of the country including the Hon'ble Supreme Court of Pakistan has committed material illegality while passing the impugned judgment. It was further argued that even otherwise when the Statute itself provides a remedy that remedy cannot be taken away by any such like agreement as violative to the principle of public policy as well as in violation of Section 28 of the Contract Act.. It was prayed that as law on the subject has been ignored by the learned Appellate Court, therefore, in exercise of the writ jurisdiction findings of the learned Appellate Court vide impugned judgment and decree are liable to be set aside being illegal and unlawful and the judgment passed by the learned Trial Court be restored. Reliance has been placed on Muhammad Rafique Vs. M/s. Habib Bank Limited (1994 SCMR 1012), M.K. Muhammad and another. Vs. Muhammad Abu Bakar (1993 SCMR 200), Hafiz Altaf Ahmed Vs. Haji Ahmed Din (2005 CLC 1758), Qaiser Javed Malik Vs. Pervaiz Hameed and 2 others (2009 SCMR 846), Mrs. Tahira Dilawar Ali Khan through Attorney and 2 others Vs. Mst. Syeda Kaneez Sughra and 2 others (PLD 2007 Kar. 50) and Darbari Lal Mudi and others Vs. Raneeganj Coal Association Ltd. (AIR (31) 1944 Patna 30).
8. On the other hand learned counsel for tenant opposed this petition on the grounds that this writ petition is not maintainable as the two Courts below have looked into the factual controversy and the first Appellate Court reversed the findings of the learned Trial Court on factual as well as on legal side. He agitated that tenancy/lease basing on lease agreement (Mark 'At) in its para-2 it is written that lease will be continue regularly forever and the rent of the shop will be enhanced with the rate of 6% per annum uptill five years. After that this percentage for enhancement of the rent will be decided with mutual understanding of the parties. Learned counsel argued that perpetual tenancy under the law is permissible and the learned Appellate Court has passed the findings in this respect keeping in view the interpretation by the learned Courts in this respect. Learned counsel referred two judgments of Indian Jurisdiction relied upon by the learned Appellate Court i.e. Maneklal Marrsukhbhai Vs. Hormusji Jamshedji Gindwalla & Sons (AIR 1950 Supreme Court 1) B.P.
Sinha Vs. Som Nath (AIR 1971 Allahabad 297). Learned counsel further argued that even otherwise the landlords were obliged to make out a case for their bona fide personal use and occupation of the demised premises while adducing sufficient and plausible evidence on record to prove it they had in their possession any property earlier and if so, it was not sufficient to meet their requirements. Learned counsel argued that admittedly the landlords were in occupation of a huge space in the same building which they had kept vacant for so many years although it was got vacated by them from other tenants; that the only purpose of filing the ejectment petition was to pressurize the tenant for enhancement of rent; that the judgment and decree of the learned Appellate Court whereby the findings of the learned Trial Court were reversed is lawful and justified and it cannot be interfered by this Court in exercise of writ jurisdiction. Reliance is placed on Allies Book Corporation through L.Rs. Vs. Sultan Ahmad and others (2006 SCMR 152), Raseesud-Din and others Vs. Mian Muhammad Farooq and others (2001 SCMR 1801), Shahid Nadeem and others Vs. Muhammad Shafi (2000 SCMR 542), Muhammad Hafeez and another Vs. District Judge, Karachi East and another (2008 SCMR 398), Sohail Ahmad Bajwa through Special Attorney Vs. Muhammad Riaz (2005 MLD 1184), Mst. Ashraf Alia Vs. Dr. Asif Majeed (1991 CLC 53), Malik Muhammad Zakria Kansi Vs. Dr Bashir Ahmed (PLD 2001 Quetta 40), Abdul Hameed Khan Vs. Mrs. Saeeda Khalid Kamal Khan and others (PLD 2004 Kar. 17), Muhammad Yousaf Vs. Nisar Ahmad and another (2002 CLC 526), Abdul Majid Vs. Anwar Ali (1983 CLC 2511) and Mehboob Alam Vs. Miss Tehseen Shafqat Khan and others (PLD 2001 Kar. 238).
9. I have heard the Learned counsel for the parties at length and perused the record.
10. As far as the maintainability of the ejectment petition on the ground agitated by the tenant that in view of Section 1(ii) of Islamabad Rent Restriction Ordinance, 2001 and in the light of S.R.O. No. 538(1)/2004, dated 24.6.2004 wherein it is provided that Islamabad Rent Restriction Ordinance, 2001 shall apply to all residential and commercial buildings besides rented land, the eviction proceedings cannot be launched in respect of the demises premises, the learned Rent Controller as well as the learned Additional District Judge have dealt with this question and dis-agreed with the arguments advanced on behalf of the tenant and so held that the ejectment petition was maintainable. These findings have not been challenged by the tenant. Therefore, this question at this stage cannot be agitated. Therefore, the question of default has already been decided against the landlords.
11. The sold question at present under challenge before this Court is that if bona fide personal need of the landlords was made out and secondly in view of the terms and conditions of the lease agreement if ejectment petition was maintainable. The second question which is the subject- matter of Issues Nos. 1 and 3 i.e. The terms and conditions of the lease agreement which point weighed with the learned Appellate Court as it was held that as it was a perpetual lease/tenancy, therefore, ejectment petition was not maintainable. The lease agreement Mark 'A' if seen its para2 reads as under:- "This Lease will be continued regular forever and that the rent of the shops will be increased at the rate of 6% after every year up till five years. After that the percentage of the rent will be decided with mutual understanding with the Lessor."
12. Admittedly it is an un-registered document. The learned Additional District ,fudge while disposing of the question of perpetual tenancy has relied on two judgments of Indian Jurisdiction cited as Maneklal Mansukhbhai Vs. Hormusji Jamshedji Ginwalla & Sons (AIR 1950 Supreme Court 1) and B.P. Sinha Vs. Som Nath (AIR 1971 Allahabad 297) and wherein it was held that, if an agreement is proved making out a ease of perpetual tenancy/lease, though it is un-registered document, it is not hit by Section 107 of the Transfer of Property Act and any such defect arising due to non- registration in view of Section 53-A ibid is curable. I am sorry to observe that, while relying upon the above-mentioned judgments the learned Additional District Judge did consider that this question of perpetual tenancy on the basis of non-registered document has already been dealt with in a number of authoritative pronouncements delivered by the Hon'ble Supreme Court of Pakistan whereby it was held that if any such lease or tenancy is created on the basis of an unregistered document it has no lawful effect and it only can be treated tenancy/lease for a period of less than one year. However, this document can only be taken into consideration as valid document for the purpose of deciding relationship between tenant and the landlord. The judgment cited as Muhammad Rafique Vs. M/s. Habib Bank Limited (1994 SCMR 1012) their Lordships of the Hon'ble Supreme Court of Pakistan held that-- "In our view the above-cited case does not advance the case of the respondent. Since, the tenancy agreement purported in fact to create a lease in perpetuity and as the same was not registered, a statutory tenancy came into existence under the provisions of the Ordinance as admittedly the appellant accepted rent from the respondent from time to time. In this regard reference may be made to the case Hakim All v. Muhammad Salim (1992 SCMR 46). The rights of the parties were to be regulated under the provisions of the Ordinance and not under the tenancy agreement, which was not a legal and enforceable document..."
The other judgments on the subject cited as M.K. Muhammad and another Vs. Muhammad Abu Bakar (1993 SCMR 200), Hafiz Altaf Ahmed Vs. Haji Ahmed Din (2005 CLC 1758), Qaiser Javed Malik Vs. Pervaiz Hameed and 2 others (2009 SCMR 846) can be relied upon for that purpose.
13. It, is provided under Article 189 of the Constitution of Islamic 'Republic of Pakistan, 1973 that any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other Courts in Pakistan. The learned Additional District Judge as already mentioned above perhaps was not brought into notice the authoritative pronouncements of the apex Court on the subject and thus he was influenced by the two judgments of Indian Jurisdiction as mentioned above which in view of the law laid down by the Hon'ble Supreme Court has no relevance rather following these judgments, while ignoring the law laid down by the apex Court of this country it tantamount to misconduct. Reference can be seen in a judgment cited as Ashiq Hussain alias Muhammad Ashraf Vs. The State (PLD 1994 S.C. 879) wherein their Lordships of the Hon'ble Supreme Court while dealing with the question of applicability of Article 189 of the Constitution of Islamic Republic of Pakistan, 1973 and the conduct of the subordinate Courts observes as under:- "Before parting with the judgment we propose to remind all other Courts in Pakistan that under Article 189 of the Constitution of Islamic Republic of Pakistan, decision of the Supreme Court enunciating principles of law is binding on them. By our experience we have noted tendency on the part of Magistrates, Assistant Commissioners/Additional District Judge/District Judges to ignore the judgments of the Superior Courts when cited before them. They would not even read the citations and would give the impression as if the law laid down by the Supreme Couil/High Courts is .Not meant for, them. They often tell the Advocates to produce the law books before the superior Court as and when the matter reaches there. This treatment of the judgments of the superior Courts and attitude of the Presiding Officers is contemptuous, contumacious and also amounts to misconduct. By this judgment we intend to strike a note of warning to the subordinate Courts in the country that they are legally bound to follow the principles of law enunciated by the Supreme Court and if they do not follow the principles of law enunciated by the Supreme Court and if they do not follow it then serious view of the matter can be taken against the delinquent as and when the misconduct comes or is brought to the notice of this Court."
This view further can be strengthen by another judgment passed' by the Hon'ble Supreme Court of Pakistan cited as Province of the Punjab through Secretary, Health Department Vs. Dr S. Muhammad Zafar Bukhari (PLD 1997 S.0 351).
14. Although it is not mentioned in the impugned that on which issues the learned Additional District Judge passed the findings but presumably he while reversing the findings of the learned Rent.
Controller on Issues Nos. 1, 4 and 5 set aside the, judgment and decree passed by the learned Rent Controller. Resultantly, the findings of the learned Additional District Judge on these issues are set aside and the findings passed by the learned Rent Controller on all the issues are restored.
15. Now comes to the question of bona fide need for personal use and occupation of the demised premises by the landlords. As per record one of the landlords, namely, Saqib Latif who appeared as PW-1 deposed in his statement' that the demised premises was required by them for their personal use and occupation as they intended to further enhance their business activities which fact remained unrebutted except the oral assertions made by the tenant while appearing in the witness-box as RW-1 and he only remained contended that a portion of the building was lying vacant with the landlords which they did not occupy to meet out their alleged requirement. There is no evidence brought on record by the tenant if any space available with the landlords was ever let out by them after getting vacated from the previous tenants or if any such space was available it was not used intentionally by the landlords.
16. As already mentioned that the learned Additional District Judge did not mention nor discussed any of the issues while reversing the findings of the learned Rent Controller, however, overall impression can be gathered that he upheld the findings of the learned Rent Controller on Issue No. 3 i.e. Personal bona fide need and requirement of the landlords. However, he reached at a conclusion that on the basis of perpetual tenancy/lease the ejectment petition was not maintainable, therefore, he while reversing the findings of the learned Rent Controller dismissed the ejectment petition.
17. In view of the above discussion this writ petition is allowed. The impugned judgment and decree dated 18.1.2010 passed by the learned Additional District Judge, Islamabad is set aside and the findings of the learned Rent Controller on all the issues vide judgment and decree dated 3.6.2009 are restored .