' MUHAMMAD ANWAR KHAN KASI, CJ. -- This writ petition as well as writ petitions 962 and 959/2015 contain common question of facts and law, therefore, being decided through this single judgment.
2. Brief facts of the case are that respondents (landlords) leased out shops 1, 2, 3 and 4 as well as Flat No, 2, Block 4, Rana Market, Sector F-7/2, Islamabad, through separate leas 'agreements dated 29.12.2009 for the period ending on 31.12.2010. However, it was mentioned that w.e.f, 1.1.2011 settled rent of Rs, 35,000/-, Rs, 25,000/- and Rs, 27,500/- respectivley, would be increased by 10%.
Subsequently, on 15.2.2013 landlords (Sardar Abu Bakar, sardar Arshad and Sardar Saleem) filed three separate eviction petitions on the grounds of personal bona fide need to demolish and reconstruct the building and expiry of lease agreement. Petitioners/tenant (Nadeem Raza Abbassi, Shakeel Ahmed Abbassi and lmran Abbassi) filed their respective replies refuting personal need with claim that rent agreement was extended to 31.12.2014; actually landlords have sold the premises to one Muhammad Zulfiqar and in order to provide vacant possession to the vendor, created false story of personal need and filed the eviction petitions. Out of divergent pleadings, learned Rent Controller dealt with three eviction petitions separately and framed the same issues except the one indicated; ISSUES
(i) Whether the petitioners have cause of action?
OPA
(ii) Whether the lease agreement between the parties got expired? OPA (not framed in eviction petition titled Sardar Abu Bakar Vs. Nadeem Raza Abbasi, W.P. No, 961/2015).
(iii) Whether the demised premises are required for personal bona fide need of the petitioners?
OPA
(iv) Whether the ground of bona fide personal need for dismantling the existing building and raising new construction over it is available to the petitioners, keeping in view the assertions of respondent that vide agreement to sell dated 2.10.2012 and 26.5.2013, the petitioner sold out the demised premises to one Muhammad Zulfiqar? OPR
(v) Whether after the expiry of written lease agreement between the parties dated 29.12.2009, the tenancy between the parties further extended from 1.1.2012 to 31.12.2014? OPR
(vi) Whether the petition has been filed with mala fide intention to harass the respondent? OPR
(vii) Relief.
3. The respondents/landlords Sardar Muhammad Saleem Khan and Sardar Abu Bakar got themselves examined as AW.1 in respective petitions and produced Exh.A1 their affidavits, lease agreement Exh.A2, copy of agreement to sell, Mark AW-1/1, copy of extended agreement to sell Mark AW-1/2, copy of suit titled Muhammad Zulfikar Vs. Sardar Muhammad Saleem Khan as Mark AW-3/4, copy of CDA letter dated 4.1.2013 as Mark A. The tenants/petitioners themselves appeared as RW-1 and produced witnesses Muhammad Tahir (RW-2), Muhammad Jehangir (RW-3), Ashfaq Ali, Senior Assistant (RW-4). They produced affidavits in evidence Exh.R1 to Exh.R3, certified copy of suit titled Muhammad Zulfikar Vs. Sardar Muhammad Saleem Khan, etc. As Exh.R-4, certified copy of stay order as Exh.R-5, Original receipts of rent as Exh.R-6 to Exh.R-21.
4. Petitioners moved application for summoning of witness Muhammad Zulfikar (purported vendor of demised premises) but the same was rejected by learned Trial Court, however, in writ petition application was allowed but the said witness after having appeared refused to depose and moved application for exemption to give evidence. His application was allowed vide Orders dated 15.11.2014 and 19.11.2014.
5. After recording evidence and hearing arguments learned Rent Controller vide judgments and decrees dated 26.11.2014 accepted the eviction petitions. Petitioners/tenants filed appeals under Section 21 of IRRO, 2001 which were dismissed vide impugned judgments and decrees dated 14.3.2015.
6. Learned counsel argued that respondents failed to establish personal need by proving intention to dismantle the building as they did not obtain requisite approval of the site-plan from CDA as evident from statement of RW-4 (Ashfaq Ali, Senior Assistant, BCS, CDA). It is further averred that distinction between residential and commercial property was ignored and contention of tenants with regard to sale of demised premises was left undecided.
7. It is next submitted that respondents concealed factum with regard to sale in favour of Muhammad Zulfikar while fact of the matter is that they sold the premises vide agreement to sell dated 2.10.2012 and 26.5.2013 but iearned Trial Court decided the matter without recording evidence of vendor despite the fact that name of the said witness was mentioned in the list and summoned through Order of this Court. Learned counsel further averred that petitions were filed on 15.2.2013 at a time when the respondents had already alienated the title, therefore, eviction petitions were not maintainable.
8. It is further submitted that respondents never issued any change of ownership notice under Section 19 of IRRO, 2001 and amended their version without any justification and took an unwarranted claim with regard to expiry of lease agreement despite having knowledge that the lease agreement stood extended on 1.1.2012 upto 31.12.2014. He further averred that tenants never committed any default although during pendency of proceedings respondents refused to accept rent in order to establish default due to which petitioners had to deposit rent in Court while the said application was allowed with consent of learned counsel for landlords and the rent was deposited in Court at enhanced rate.
9. It is also averred that mere expiry of lease agreement itself is no ground for eviction of tenant as the same has not been mentioned under Section 17 of IRRO, 2001. In support of this contention learned counsel relied on Order of the Hon'ble Supreme Court dated 2.11.2015 passed in case of Muhammad Ashiq, etc. Vs. Muhammad Zubair (CA Nos. 1011 and 1012 of 2015).
10. Lastly, it is averred that respondents admitted settlement and receipt of rents at enhanced rate which shows that claim of tenant regarding extension of lease period upto 31.12.2014 was correct and in that manner ground of expiry of lease agreement was not available to landlords at the time of filing of eviction petitions but both learned Courts decided the petition contrary to pleadings. In support of above submissions learned counsel placed reliance upon case-laws cited as 1987 SCM R 2074, PLD 2000 SC 1172 and 1989 M LD 1174.
11. On the other hand, learned counsel for respondents/landlords opposed the petitions by submitting that personal bona fide need has nowhere been mentioned in petitions; in fact the premises were required for dismantling the building to reconstruct, in consensus with other co- owners and in this direction CDA issued approval letter dated 4.1.2013 whereby it was covenanted that demolition would take place under supervision of a CDA approved engineer and in absence of satisfactory report from the said engineer, building plan would not be approved. He explained that according to CDA bye-laws pre-requisite of demolition report by engineer cannot be stepped over, therefore, objection of respondents with regard to non-submission of building approval is unjustified.
12. It is next submitted that lease agreement with tenants expired on 31.12.2011 while the date was mistakenly mentioned as 2010 however after expiry of actual period no fresh extension was given and tenants remained unable to provide any proof regarding extension while simple claim of verbal extension cannot be entertained without any evidence. He submitted that Order of the Hon'ble Supreme Court referred by the petitioners does not set any rule of law so as to tie followed imperatively and same can be considered at par with leave granting order. In support learned counsel placed reliance on case-laws titled as "Cantonment Board, Rawalpindi, etc. Vs. Lt. Col. (Retd.) Allah Dad Khan" (2015 SCM R 832), "Khairullah Vs. Sultan Mehmood, etc." (1997 SCM R 906) and "Muhammad Tariq Bader Vs. National Bank of Pakistan" (2013 SCM R 314).
13. Learned counsel further argued that proviso to Section 17 of IRRO, 2001 explains the nature and effect of expiry of lease agreement in the manner that a tenant can be evicted after expiry of lease agreement. It is also argued that august apex Court has time and again held that after expiry of term fixed by lease agreement, tenant would lost right to continue to occupy or hold over premises.
In support, he relied on case-law titled as "Qaiser Javed Malik Vs. Pervaiz Hameed, etc." (2009 SCM R 846).
14. It is further submitted that under Section 17(2)(v) of IRRO, 2001 sanction of authority for reconstruction is not an inflexible requirement rather the Rent Controller is empowered to order eviction where it seems that demised premises are bona fide needed by landlord for erection or reconstruction which has been sufficiently proved. He added that personal bona fide need and plea of reconstruction are not mutually destructive and where plea with regard to reconstruction is proved remaining grounds would become inconsequential. In support learned counsel placed reliance on case-laws titled as "Haji Allah Ditta Vs. Mst. Shahzadi Bilqis and another (1980 SCM R 41), "Muhammad Shafique Vs. S.M. Khurram, etc." (1983 SCM R 1227), "Mst. Nazir Begum, etc. Vs. ADJ, etc."
(1983 CLC 2045 Lahore).
15. Learned counsel also argued that litigation between landlords and purported vendor is pending and at present ownership cannot be considered to have been changed. He added that even otherwise change in ownership does not carry fatal effect to eviction proceedings and the new as well as previous owner can carry on the proceedings. In support he relied on case-law titled as "Mst. Humera Sajid Vs. Muqarrab Khan Puni, etc." (2008 CLC 650 Lahore) wherein it was held that "definition of word 'landlord' is further expanded to include beneficiary, guardian, receiver, executor, administrator or any other person, it even includes tenant who sublets the property and also includes every person who derives title from landlord". It was further held in the same judgment that "definition was not in fact to put embargo upon landlord's unfettered right to sell property during any legal proceedings and it was not repulsive to the rule of natural justice and equity new owner had a locus standi and cause to continue with execution proceedings in the name of previous owner".
16. Heard and record perused.
17. Fate of present case hinges upon determination of following questions:--
(a) Whether eviction can be ordered on sole ground of expiry of lease agreement?
(b) Whether petitioners/tenants sufficiently proved verbal extension of lease agreement?
(c) Whether the landlord after having entered into purported agreement to sell cannot seek eviction?
(d) What is import of ground for reconstruction of demised premises and whether eviction petitioners had established the same?
18. There cannot be any cavil to proposition that relationship of landlord and tenant is governed by terms and conditions set in lease agreement. In event of the lapse of lease agreement by afflux of time mentioned thereunder, unless extended, the relationship comes to an end with nonexistence of contractual obligations. Undoubtedly, occupation of premises by the tenant is not only dependant upon payment of rent but also upon the 'temporary period mentioned in the lease agreement or extension agreement. There is no force in the argument that expiry of lease agreement has not been mentioned as ground of eviction in Islamabad Rent Restriction Ordinance, 2001 because Section. 6 clearly mentions that tenancy does not remain :valid ,upon ,lapse of period mentioned in lease agreement. Section 6 is reproduced for ready reference:- Tenure of tenancy.-- Subject to the provisions of Section 17, no tenancy shall be valid beyond such period as the landlord and tenant may, by mutual agreement, fix before or after the commencement of the tenancy: Provided that a tenancy in force before the commencement of this Ordinance for which no period is fixed shall cease to be valid on the expiration of a period of two years from such commencement: Provided further that a tenancy which comes into force after the commencement of this Ordinance and for which no period is fixed shall not be valid after expiration of period of six months from the date of the receipt by the tenant of a notice in writing given by the landlord terminating the tenancy."
19. Overall reading of the Ordinance ibid, depicts that two modes of cessation of tenancy have been envisioned, first, through expiry of lease agreement under Section 6 and second, on the grounds mentioned under Section 17 of IRRO, 2001. This observation is supported by the notion with regard to pre-requisite for expiry of fixed period of lease agreement mentioned in first proviso of Section 17(4), IRRO, 2001. The relevant portion of Section 17(4) is reproduced for ready reference:- "17. Eviction of Tenant. --
(4) A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession--
(a) in the case of residential building, if he requires it in good faith for his own occupation or of any member of his family and he or any member of his family, as the case may be, is not occupying any other residential building suitable for his needs at the time in the urban area: ' Provided that he or the said member of his family has not vacated such building in the Islamabad Capital Territory without sufficient cause after the commencement of this Ordinance; and
(b) in the case of a commercial building or rented land, if he requires it in good faith for his own use or for the use of any member of his family: ' Provided that where the tenancy if for a specified period agreed upon between the landlord and the tenant, the landlord shall not be entitled to apply under this sub-section before the expiry of such period: ' Provided further that where the landlord has obtained possession of a residential or commercial building or rented land under clause (a) or clause (b), he shall not be entitled to apply again under the said clauses for the possession of any other building or rented land unless the building or rented land of which he had previously taken possession has become unsuitable for his needs."
20. The Hon'ble Supreme Court has consistently held that expiry of lease agreement would be terminal event for tenancy. In case of "Qaiser Javed Malik Vs. Pervaiz Hameed, etc." (2009 SCM R 846) the august apex Court held as follows:-- "The plain reading of Section 6 of the Ordinance commencing with the use of words "subject to the provisions of Section 17" signifies that the provisions of Section 17 continue to apply at grounds for eviction of the tenant in addition to a further condition of existence of a valid tenancy agreement.
The words do not affect the rights conferred upon the parties by Section 6 of the Ordinance but means as conditional upon the observance of provisions of Section 17 of the Ordinance as held while interpreting the words "subject to" by the Supreme Court in India in the case of KRCS Balakrishna Chetty and Sons and Co. v. The State (AIR 1961 SC 1152). The violation of any of the provisions of Section 17 may, therefore, continue to regulate the ground of eviction of the tenant by the landlord. Section 6 further reads "no tenancy shall be valid beyond such period as the landlord and tenant may: by 'mutual agreement before or after the commencement of the tenancy".
The legislature has expressly provided that after expiry of the prescribed period as may be fixed by the mutual agreement agreed or fixed initially at the commencement of the tenancy or after been defined under the said Ordinance. Therefore, reference is to be made to the ordinary dictionary meanings of the word "valid" as under:- Chambers 21st Century Dictionary. -- Valid. -- (1) Said of an argument, objection, etc. (a) based on truth or sound reasoning; (b) well- grounded, having force (2) said of a ticket or official document; a legally acceptable for use".
Black's Law Dictionary. - Valid. - Having legal strength or force, executed with proper formalities, incapable of being rightfully overthrown or set aside. Legally sufficient or efficacious; authorized by law. Good or sufficient in point of law; efficacious; executed with the proper formalities; incapable of being rightfully overthrown or set aside; sustainable and effective in law, as distinguished from that which exists or took place in fact or appearance, but has not the requisites to enable it to be recognized and enforced by law. A deed, will, or other instrument, which has received all the formalities required by law, is said to be valid. (underlined/bold provided)
Words and Phrases (Permanent Edition) Volume 44:-- The term "valid" means in law having legal strength, force, and effect, or incapable of being rightfully overthrown or set aside. "valid" means efficient, effective, accomplishing what is claimed or intended. "Valid" means good or sufficient in point of law; sustainable and effective in law."
Taking into consideration the above meanings of the word "valid" the intention of the legislature clearly means that the tenancy ceases to have any legal force or strength on expiry of the time fixed by the agreement."
21. Before it can be concluded that expiry of lease agreement inevitably results in cessation of tenancy, it would be pertinent to amplify with reverence that gracious order dated 2.11.2015 passed by the Hon'ble Supreme Court in case of "Muhammad Ashiq, etc. Vs. Muhammad Zubair" (C.As. 1011 and 1012 of 2015) placed no embargo to consider the determine the overall intent and purpose of IRRO, 2001 for holding a rent petitiPn maintainable on the grounds other than incorporated and essential under Section 17. It is, therefore, incumbent to address this aspect with reference to Ordinance, 2001 ibid where no provision under Section 17 seeking eviction on expiry of tenancy is incorporated parallel to ,provision contained in Punjab Rented Premises Act, 2009. It would, therefore, not be safe to consider the gracious Order of the Hon'ble Supreme Court a ratio decidendi or for that matter obiter dicta to hold that eviction could not be ordered on expiry of tenancy under IRRO, 2001 due to having no place under Section 17 of Ordinance ibid. The Order of the Hon'ble apex Court laid a direction to decide that case afresh strictly on merits keeping in view all the grounds of eviction urged by the landlord in that eviction petition against the eviction petition. Expression 'all grounds' include cessation of tenancy. Relevant portion of the Order of Hon'ble Supreme Court is reproduced:-- "2. This being the position, these appeals are allowed and the cases are remanded to the Islamabad High Court for fresh disposal of Writ Petitions No, 853 and 854 of 2015, preferably within three months, strictly on merits and in accordance with law, keeping in view all the grounds of eviction urged by the landlord in his eviction petition against the appellants." (Emphasis added)
22. Another challenge was posed through defence that lease agreement was extended verbally till 31.12.2014. Onus to prove this issue was upon the petitioners/tenants but they could not produce any documentary evidence, while during cross-examination it was admitted that lease agreement got expired, however about the extension no independent evidence could be produced.
Intervention through Trade Union Market Committee meeting was unsubstantiated as no writing was available. The witnesses Muhammad Tahir and Muhammad Jehangir could not bring on record any document showing their status about trade union or participants of purported meeting for settlement in which the lease agreement was said to be extended. Mere deposit of rent does not reflect extension of lease agreement because a tenant in possession of demised premises after termination of tenancy cannot be absolved from liability of the payment of rent, specifically where request for payment of rent was made on their part. Respondents/landlords remained unshaken in their claim that they issued eviction notice upon the end of lease agreement period.
The initial onus to prove could not be exhausted due to which the lease agreement cannot be called to have been extended. It goes without saying that even the period claimed by tenant has already elapsed on 31.12.2014.
23. Landlord has not denied agreement to sell but it was claimed that transaction could not be finalized and due to dispute the parties entered into litigation. Pendency of civil suit for specific performance was admitted by respondents which show that title of demised property cannot be called to have transferred. No notice with regard to change of ownership ;as issued by the landlords/respondents due to which liabilities of tenant were clearly unchanged and there was no lacuna which could be said to fetter right of respondents to seek eviction of tenants. Evidence of purported vendee (Muhammad Zulfiqar) cannot be called insurmountable and in such circumstances learned Trial Court had rightly observed that Tribunal had no jurisdiction to compel the witness to depose.
24. The most important aspect of the case is ground for reconstruction of demised premises.
Landlords had sought eviction in order to undertake reconstruction and placed letter dated 4.1.2013 whereby they were given permission to demolish the building. This permission was naturally issued upon application of the landlord which shows his bona fide. The tenants are not justified to negate the intention of landlord to dismantle the building by arguing that presence of sanction for reconstruction plan was mandatory requirement because this notion is annulled by first part of Section 17(2)(v), IRRO, 2001 whereby landlord is to show requirement of reconstruction reasonably in good faith while these conditions are fulfilled in the present case as landlord had admittedly obtained sanction of CDA to disma ntle the building and according to letter of sanction the reconstruction permission was made conditional to satisfactory demolition of the building which is not possible without vacation of building. Section 17(2)(v) is reproduced for ready reference:- "(v) the building or rented land is reasonable and in good faith required by the landlord for the reconstruction or erection of a building or the landlord has obtained the necessary sanction for the said reconstruction or erection from the Authority."
25. Element of good faith is also evident from the fact that landlords had exposed themselves to penal consequences reaching upto the imprisonment in case of their failure to dismantle the building within four months of the eviction of tenant as enunciated under Section 17(7) of IRRO, 2001.
This shows that no one would casually take risk of imprisonment without serious need to dismantle the building and reconstruct the same. In this reference the Hon'ble Supreme Court in case of "Haji Allah Ditta Vs. Mst. Shahzadi Billgis, etc." (1980 SCM R 41) held as follows:-- "It was contended secondly that the plea of the respondents landlady that the shop is sought to be vacated for reconstruction is not bona fide because it has not been proved that the building was in a dilapidated condition and required reconstruction. We feel that the learned High Court Judge was justified in repelling this contention. It is not necessary that a building must be so old an dilapidated that it is about to fall down before the landlord can be considered justified in wanting to demolish and reconstruct it.
' Every person has the right to improve his property to utilize the land on which the building is constructed in the best and most profitable manner and erect a new building if the old building is outdated although it might yet be habituated or sufficiently strong to last for another few years.
The mere fact that the landlord is willing to demolish the old building and invest a large amount of money in constructing a new and notwithstanding the tremendous increase in the cost of construction, and the fact that he is willing to undergo imprisonment on his failure to demolish the building or to reconstruct it within a specified period is sufficient to establish his bona fides."
26. The above discussion leads to hold that: (a) (a) eviction petition under IRRO, 2001 is maintainable on sole ground of expiry of tenancy; (b) petitioners/tenants failed to prove verbal extension of lease agreement; (c) the agreement to sell does not fetter right to seek eviction of tenant; and (d) cumulative effect of Section 17(2)(v) of Ordinance ibid would be construed in terms that where learned Tribunal is satisfied regarding existence of good faith, eviction can be ordered on the ground of 'requirement for reconstruction'.
27. Findings of the two learned Courts do not warrant interference. The same are, therefore, upheld.
Present petition as well as connected Writ Petitions Nos. 962 and 959 of 2015 are dismissed.
Petitioners shall hand-over vacant possession of demised premises to the landlords within 30 days from this Order. No order as to costs.