' RAUF AHMAD SHEIKH, J.---The petitioners have assailed the vires of judgment and decree dated 29-11-2012 passed by the learned Additional District Judge, Rawalpindi, whereby an appeal filed by them against the eviction order dated 13-3-2012 passed by the learned Special Judge (Rent) against them and in favour of respondent No.1 was dismissed.
2. The respondent No.1 sought ejectment of the petitioners from land measuring 27-Marlas (43 feet x 148 feet) fully described in para No.1 of the petition (hereinafter called the rented premises). It was contended that the land was rented out to the petitioners for a period of 5 years w.e.f. 15-9-2006 to 14-9-2011 on the monthly rent of Rs.23000 with 10 % annual increase vide lease deed dated 14-9- 2011, which has already expired. It was contended that the petitioners had given an undertaking to handover the rented premises along with the building, water connection, electricity transformer, gas and telephone installations and equipments fixed therein. It was alleged that the petitioners violated the terms of the agreement through reckless conduct and were also liable of eviction due to expiry of the fixed period of tenancy as a notice was served upon them even before the expiry.
3. The petitioners contested the petition. It was contended that the petition was not maintainable as the tenancy agreement was not registered and landlord failed to deposit the fine at the rate of 10% of the annual rental value of the property; that the rented premises was being used for factory so it was neither a building nor rented land and as such the provisions of Punjab Rented Premises Act, 2009 were not attracted; that he had spent a sum of Rs.22,44,238 and without making the payment of the same, the landlord was not entitled to get the possession; that the petitioner has made huge investments under bona fide and legitimate expectancy of the extension so were entitled to the renewal of lease for another term of 5 years; that the rent deed by itself reveals that the parties would be competent to renew the lease so the same renewable and that has not expired.
4. The learned Special Judge (Rent) dismissed the petition for leave to contest and consequently proceeded on to accept the petition. The appeal filed by the petitioner was dismissed.
5. The learned counsel for the petitioners has contended that both the courts below have failed to appreciate that vacant plot was obtained on rent and thereafter the building was raised by the petitioner, where he has his show room and godown in addition to other installations of services necessary for running the factory; that the factory is neither a building nor the rented land so the ejectment petition under Rented Premises Act, 2009 was not competent; that the agreement clearly bears a clause for extension of lease so the petitioners had been and are willing to renew it for a period of 5 years and the landlord is under obligation to extend the same in view of huge investments made by them; that the petition was not maintainable without payment of 5% of the fine under section 9-(b) of the Rented Premises Act, 2009; that only a piece of land was rented, which was developed into a factory and the landlord has wrongly claimed the possession of the land along with the building and installations made thereon; that the contract regarding handing over the building and installations is totally void being against the public policy so the landlord is under obligation to pay a sum of Rs.22,44,238 at the time of vacation of the land. In support of the contentions, reliance is placed on 1998 CLC 1883, PLD 1993 Karachi 181, 2008 MLD 550 and PLD 1994 Kar.112.
6. On the other hand, the learned counsel for respondent has contended that admittedly a vacant piece of land was given, where a marble store for business and trade has been established and as such neither the factory was leased nor the factory exists at the spot; that the business activities being conducted at the rented premises will not change its nature and the same would remain rented land; that both the parties are bound by the terms of the agreement and the oral assertions in this regard are not admissible in evidence; that under the agreement the landlord is entitled to get the possession of the construction raised and connections obtained; that the low rate of rent was agreed to only due to undertaking given for handing over of the building and the installations; that the fixed period of lease expired on 14-9-2011 and the renewal was not made with the mutual consent as per terms of the agreement and both the courts have properly appreciated the material available before them so their well reasoned orders and judgments do not call for any interference in exercise of constitutional jurisdiction. In support of the contentions reliance is placed on 2010 SCMR 1925, 2009 SCMR 846, PLD 2004 SC 860, 1991 CLC 1441, 2003 SCMR 722, PLD 1973 SC 218 and 2012 CLC 1158.
7. It is true that the tenancy agreement in this case is not registered in accordance with law and the petition was filed without payment of fine under section 9(b) of the Act ibid but the rent petition having been filed on 22-9-2011, within the cushion period provided under section 8 of the Act ibid was not bad for A non-deposit of the fine. Even otherwise, the learned Rent Controller had directed the petitioner to deposit a sum of Rs.27600 which is equivalent to 5% of the fine. The contention that the petition was not maintainable, therefore is not sustainable under the law.
8. The most important point for determination is if the rented premises was a factory and as such the learned Special Judge (Rent) had no jurisdiction to entertain the petition because the provisions of Punjab Rented Premises Act, 2009 were not applicable. The tenancy agreement shows that neither the factory was leased out nor the vacant possession of the land was rented out for construction of the factory. In fact the purpose for which the plot is leased would determine the nature of the property. In this case, the vacant plot was leased out for business purpose.
Admittedly, the petitioners have established a show room for sale of marble slabs/tiles, which are cut/made through the cutter and other machinery installed there. The site is not being used for the factory and it is converted into a non-residential building being used for sale of marble slabs/tiles and other goods of the same nature. The case-law cited at the bar by the learned counsel for the petitioners is not applicable on the facts of the present petition. The learned Special Judge (Rent) had the jurisdiction to hear the petition. The next contention raised by the learned counsel for the petitioners is that without payment of Rs.22,44,238 spent on construction of office and show room and obtaining the connections for supply of electricity, gas, water etc. The landlord is not entitled to get the land vacated. In this respect, the agreement of tenancy is the basic document and mutual rights and liabilities of the parties are to be determined under the same. The execution of the deed is not denied. It is clearly provided therein that the tenant would raise construction of the building according to his requirements and would vacate the same without making the demand for compensation. Similarly, the connections of services were to be obtained in the name of landlord and the tenant was under obligation to relinquish the possession without claiming the compensation. It is true that the terms appear to be harsh and same are more favourable to the landlord but the same were agreed to at the time of execution of the deed. The mutual relationship of the landlord or tenant is governed by the tenancy agreement. These are not illegal, against the pubic policy or result of any coercion. The explanation of the learned counsel for the respondent that these were imposed due to acceptance of low rate of rent by the landlord, is not controverted.
The petitioners cannot take exception to these conditions and the contention that the contract to this extent is void is also without force. Nevertheless, no oral assertion in respect of contents of the document can be accepted. The petitioners are under obligation to hand over the land along with building erected thereon and the connections of services installed therein. The learned counsel for the petitioners has vehemently contended that the petitioners have made huge investments on the rented land so are entitled to the renewal as the same is permissible under the lease agreement. The lease agreement does bear a condition to the effect that after expiry of the first term of 5 years on 14-9-2011, it can be extended on new terms with mutual consent but the words 'mutual consent' used in the tenancy agreement clearly reveals that it can be extended only if both the parties agree to it and arrive at consensus regarding new terms. The landlord is not willing to extend the same. The petitioner cannot claim renewal on his own unless the landlord/respondent No.1 gives consent in this regard. The period of lease has expired. The learned Rent Controller and the learned Additional District Judge rightly appraised the material placed before them and arrived at just conclusions. No interference is called for in the concurrent findings of two forums of competent jurisdiction, in exercise of constitutional jurisdiction. The petition is without merits and same is hereby dismissed. However, the petitioners are given a period of four months from today to vacate the premises subject to payment of monthly rent by 15th of succeeding month on duly executed receipt. It is made clear that if the monthly rent even for month is not paid, the petitioners would be liable for eviction.