' This writ petition as well as Writ Petitions 962 & 959/2015 contain common question of facts and law, therefore, being decided through this siligle Judgment.
2. Brief facts of the case are that respondents [landlords] leased out shops 1, 2, 3 & 4 as ntaII as Flat No, 2, Block 4, Rana Market, Sector F 7/2 Islamabad, through separate lease agreements dated 29.12.2009 for the period ending on 31.12.2010. However, it was mentioned that w.e.f 01.01.2011 settled rent of Rs, 35, 000/-, Rs, 25, 000/- & 27, 500 -re:Tectively, would be increased by 10%. Subsequently on 15.02.2013 landlords [Sardar Abu Bakar, Sardar Arshad & 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 / tenants [Nadeem Raza Abbassi, Shakeel Ahmed Abbassi & Imran 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 Abbassi, 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 02.10.2012 and 26.05.2013, 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 01.01.2012 to 31.12.2014? OPR
(vi) Whether the petition has been filed with malafide 1 intentions to harass the Respondent ? OPR
(vii) Relief.
3. The respondents/landlords Sardar Muhammad Saleem Khan and Sardar Abu Bakar Sajid 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, co py 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 .& 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 & 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 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 02.10.2012 and 26.05.2013 but learned 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 15.02.2013 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 01.1.2012 unto 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 02.11.2015 passed in case of Muhammad Ashiq etc vs Muhammad Zubair [CAs No, 1011 & 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 filling 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 & 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; infact 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 04.01.2013 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 be followed imperatively and same can be considered at par with ing order. In support learned Counsel placed reliance on case laws titled as "Cantonment Board Rawalpindi etc vs Lt. Col. (Rtd.) Allah Dad Khan"
[2015 SCMR 8321, "Khairullah vs. Sultan Mehmood etc" 11997 SCM R 906] & "Muhammad Tariq Badar us 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 lose 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. Sqjid vs Muqarrab Khan Puni etc" [2008 CLC 650 Lahore] wherein it I 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 I ' 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 there-under, unless extended, the relationship comes to an end with non existence of contractual obligations. Undoubtedly, occupation of premises by the tenant is not only dependent 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: "6. 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 grouted 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.--