' SAGHEER AHMED QADRI, J.---Respondents Nos.1 to 5, namely, 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 the petitioner-Taimur Shehzad (hereinafter called as 'tenant') on 30-11- 2004 on the grounds that they were owners of Shops Nos.3, 3-A, 4 and 4-A, Block No,7, Markaz F-6, Super Market, Islamabad (hereinafter called as 'demised property') while petitioner 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,8500 per month vide lease agreements dated 1-12-1998 and 1-9-1999; 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 Restrictions 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 Restrictions 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 Center' 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 thirteen preliminary objections were raised regarding maintainability of the petition on the grounds that the present landlords 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 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 Controller framed the following seven issues:--
(1) "Whether the respondent has defaulted in payment of enhanced rent, if so, its effect? OPA
(2) Whether the respondent has created public nuisance? OPA
(3) Whether the petitioners requires their property for their personal bona fide need? OPA.
(4) Whether the petition is not maintainable? OPR
(5) Whether Islamabad Rent Restriction Ordinance, 2001 is not applicable on the suit property and court lacks jurisdiction? OPR
(6) Whether the present petition is liable to be dismissed in view of preliminary objection No,4? OPR
(7) Whether the present petition is based on mala fide? OPR
(8) Relief."
' Parties led their respective evidence. One of the landlords, namely, Saqib Latif appeared as AW-1 and submitted his affidavit (Exh.A1). In documentary evidence copy of General Power of Attorneys from Nasir Lateef and Qamar Lateef Exh.A2 and Exh.A3, copy of special Attorney Exh.A4, Lease Agreement regarding Shops Nos.3 and 3A (Exh.A5) and Lease Agreement regarding Shops Nos.4 and 4A (Exh.A6) and closed the evidence.
4. On the other hand, tenant appeared as RW-1 and in documentary evidence he produced Wakalatnama Exh. RI, List of documents Exh.R2 and Exh.R3, Lease Agreements Exh.R4 and Exh.R5, Affidavit Exh.R5/1, Receipts of rent Exh.R6/1 to Exh.R6/195, attested copy of decision of District Judge, Islamabad dated 6-6-2005 (Exh.R197), attested copy of suit Exh.R198, Exh.R199, Affidavits Mark A, Mark B and closed his defence.
5. The learned Rent Controller while deciding Issues Nos.3, 4 to 7 in favour of the landlords, Issues Nos.1 and 2 against the tenant allowed the ejectment petition on the ground of personal use and occupation vide judgment and decree dated 1-11-2008. Feeling aggrieved by that 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 6-1-2010 dismissed the appeal of the petitioner while upholding the findings of the learned trial Court.
6. Having dissatisfied with the judgment and decree dated 6-1-2010 the tenant now filed this writ petition.
7. Learned counsel for tenant contends that the impugned judgments of both the courts below are against law and facts of the case; that ejectment petition filed by the landlords was not maintainable. He agitated that tenancy/lease basing on lease agreements Exh.R-4 and Exh.R-5 in its para-2 it is written that lease will be continued regularly forever and the rent of the shop will be enhanced with the rate of 6% per annum uptil 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 courts below have not taken into consideration this aspect. Learned counsel referred two judgments of Indian Jurisdiction relied upon by the learned appellate court i.e, Maneklal Mansukhbhai v. Hormusji Jamshedji Ginwalla and Sons (AIR 1950 Supreme Court 1) and B.P. Sinha v. 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 if 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. Reliance is placed on Allies Book Corporation through L.Rs, v. Sultan Ahmad and others (2006 SCMR 152), Rasees-ud-Din and others v. Mian Muhammad Farooq and others (2001 SCMR 1801), Shahid Nadeem and others v. Muhammad Shafi 2000 SCMR 542, Muhammad Hafeez and another v. District Judge, Karachi East and another (2008 SCMR 398), Sohail Ahmad Bajwa through Special Attorney v. Muhammad Riaz (2005 MLD 1184), Mst. Ashraf Alia v. Dr.Asif Majeed (1991 CLC 53), Malik Muhammad Zakria Kansi v. Dr.Bashir Ahmed (PLD 2001 Quetta 40), Abdul Hameed Khan v. Mrs. Saeeda Khalid Kamal Khan and others (PLD 2004 Karachi 17), Muhammad Yousaf v. Nisar Ahmad and another (2002 CLC 526), Abdul Majid v. Anwar Ali (1983 CLC 2511) and Mehboob Alam v. Miss Tehseen Shafqat Khan and others (PLD 2001 Karachi 238).
8. On the other hand learned counsel for the landlords has vehemently opposed this petition on the grounds that that findings of both the courts below on Issues No,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; that both the courts below rightly held that bona fide personal use and occupation of the demised premises by the landlords was made out and Issues No,3 was decided in their favour. Learned counsel next argued that the interpretation of the lease agreements Exh.R4 and Exh.R5 present on record wherein it was allegedly recorded that it was a tenancy to be continued forever is basically against the settled law on the subject. It was further agitated that firstly this lease agreements were not registered, therefore, under section 107 of the Transfer of Property Act, 1882 read with section 49 of the Registration Act these lease agreements must have been registered and as these were not registered, therefore, it only can be presumed for a period of less than one year. It was further argued that even otherwise when the statute itself provides a remedy that remedy cannot be taken away by any such like agreements as violative to the principle of public policy as well as in violation of section 28 of the Contract Act. Reliance has been placed on Muhammad Rafique v.
Messrs Habib Bank Limited (1994 SCMR 1012), M.K. Muhammad and another v. Muhammad Abu Bakar (1993 SCMR 200), Hafiz Altaf Ahmed v. Haji Ahmed Din (2005 CLC 1758), Qaiser Javed Malik v.
Pervaiz Hameed and 2 others (2009 .SCMR 846), Mrs. Tahira Dilawar Ali Khan through Attorney and 2 others v. Mst. Syeda Kaneez Sughra and 2 others (PLD 2007 Karachi 50) and Darbari Lal Mudi and others v. Raneeganj Coal Association Ltd. (A.I.R (31) 1944 Patna 30).
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 Restrictions Ordinance, 2001 and in the light of S.R.O.
No,538(I)/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 disagreed 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. The question of default has already been decided against the landlords.
11. The sole 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 agreements if ejectment petition was maintainable. The second question which is the subject matter of Issues No,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 Exh.R5 if seen its Para.2 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 unregistered document. Learned counsel for the tenant while relying on two judgments of Indian Jurisdiction cited as Maneklal Mansukkbhai v. Hormusji Jamshedji Ginwalla and Sons (AIR 1950 Supreme Court 1) and B.P. Sinha v. Som Nath (AIR 1971 Allahabad 297) argued that if an agreement is proved making out a case 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 afraid that this contention has no force as 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 v. Messrs 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 Ali 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 v. Muhammad Abu Bakar (1993 SCMR 200), Hafiz Altaf Ahmed v. Haji Ahmed Din (2005 CLC 1758), Qaiser Javed Malik v.
Pervaiz Hameed and 2 others (2009 SCMR 846) can be relied upon for that purpose.
13. 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 AW-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.
14. In these circumstances, both the learned courts below have rightly allowed the ejectment petition of the landlords with cogent reasons calling no interference by this Court in its constitutional jurisdiction. Accordingly, the instant petition being devoid of any merits, is dismissed.