1. JAWAD HASSAN, J.--- This judgment shall dispose of FAO No.111325/2017, FAO, No.111300/2017, FAO No.111290/2017, FAO No.111695/2017, FAO No.111703/2017, FAO No.111690/2017, FAO No.111683/2017, FAO No.111684/2017, FAO No.111342/2017, FAO No.112879/2017, FAO No.112898/2017, FAO No.111283/2017, FAO No.111311/2017 and FAO No.111355/2017, as common question of laws and facts have been raised in all these appeals. Further these appeals have emanated out of the same order dated 20.10.2017 rendered by the Additional Rent Controller, Lahore (the "Impugned Judgment").
2. 2.Succinctly, the facts germane for the disposal of these appeals are that all the Appellants were the tenants of the Respondent No. 3 for the running shops at Askari-I, Commercial Market, Sarfraz Rafiqui Road, Lahore Cantt. These shops were rented through rent deed entered into in the year 2012, which was for three (3) years expiring in 2015. When the period of tenancy expired, it was neither extended nor any other agreement was made, therefore, the Appellants were not paying rent. The Respondents filed ejectment petition under Section 17 of the Cantonments Rent Restriction Act, 1963 ("the Act") before the Rent Controller, Lahore due to the expiry of the tenancy, non- payment of rent and using the property for other use. The Appellants cont:sted the Ejectment Petition by filing their written replies and after recording the pro and contra evidence, the learned Additional Rent Controller, Lahore decided the petition on 20.10.2017 against the Appellants through the Impugned Order. Feeling aggrieved, the Appellants, instead of filing appeal within time under the applicable law, filed writ petition before this Court which was dismissed being withdrawn to file instant appeals. Thereafter, the Appellants filed these appeals after delay of three (3) days with condonation of delay applications.
3. 3.In order to determine the above said question, the learned Additional Rent Controller, Lahore Cantt. out of divergent pleadings of parties, framed the following issues:- 1.Whether the respondent has a right to new lease agreement? OPR 2.Whether the respondent has sublet the premises?
4. 3.Whether the petitioner is need of the demised premises for its official use? OPP 4.Whether the respondent has defaulted in payment of rent? OPP 5.Whether the respondent is entitled to hold the possession of the demised property after the expiry of the lease agreement? OPR 6.Relief.
5. In order to prove their case, the Commanding Officer appeared as PW-1 and he submitted his affidavit as Ex.PW-1/1. In his cross-examination, he stated that the Appellants/Respondents in all Appeals are in possession of shops in question and that they have subletted the shops to different people. He further deposed that the Appellants are defaulters in payment of monthly rent.
6. Regarding personal need, the witness deposed that GHQ has knowledge regarding personal need.
7. He further deposed that under the order of GHQ, he wanted to vacate the demised shops. The Commanding Officer produced Allah Rakha as PW-2, who submitted his affidavit as Ex.-PW-2/1. He deposed that during checking it has transpired that most of the shops were subletted. PW-2 also stated that when the Respondents demanded new rent agreement and enhancement in rent,, the Appellants went to civil court. PW-2 deposed that during currency of ejectment petition some other shops were rented out at new rate.
8. 4.While on the other hand, the Appellant appeared as RW-1 and submitted his affidavit as Ex.RW- 1/1. He stated during cross-examination that his rent agreement had expired in June, 2016. He admitted that according to the rent agreement, D.G. Housing is the competent authority to renew the contract. RW-1 admitted that he is defaulter of rent since June, 2016 to May, 2017. RW-1 further admitted that he had not submitted any application for renewal of tenancy agreement. RW-1 also admitted that from June, 2016 to May, 2017, neither he had filed any application nor deposited the rent in any court till rent deposited order dated 10.04.2017.
9. 5.The learned Additional Rent Controller, Lahore Cantt after recording pro and contra evidence, accepted the ejectment petition on the ground of default and expiry of lease agreement and directed the Appellants in all the FAOs to vacate the demised premises under their possession and hand over the vacant possession to the Respondents within-30 days, failing which the Respondents were have the right to get the order executed through civil court having jurisdiction in the area.
10. 6.Learned counsel for the Appellants has argued that the Respondent. No.2 while passing the Impugned Judgment has not adverted to the written reply filed by the Appellants, wherein the question was raised against the jurisdiction of Respondent No.2; that when the issue was already under adjudication before the competent Civil Court, the same cannot be adjudicated by the Respondent No.2; that the Respondent No.2 while passing the Impugned Order did not take into consideration the fact that there was an offer from the side of Respondents Nos.3 and 4 to the Appellants for the execution of new rent agreement for the rent years of 2016 to 2019 through the letter dated 28.07.2016, which was accepted by the Appellants, but the increase in rent amount by the Respondent No.4 was not suitable for the Appellants, hence the same was challenged by the Appellants before the competent court and it was suspended by the civil court, Lahore; that while passing the Impugned Order, the Respondent No.2 did not advert to this aspect of the case that the Appellants were not defaulter, hence the order passed by the Respondent No.2 is without, any lawful authority; that while passing the Impugned Order, the Respondent No.2 did not take into consideration that the Appellants did not violate any clause of the rent agreement. In support of his contentions, he has placed reliance upon Zulfiqar. Ahmed Khan v. Station Commander, Station Headquarters, Karachi and another (2010 CLC 354), Shahid Mehboob v. Muhammad Ismail (2008 CLC 87). Lastly, he prayed that these appeals be accepted and Impugned Order be set aside.
11. 7.On the other hand counsel for the Respondents has vehemently supported the Impugned Order and argued that these appeals are liable to be set aside being barred by time. In this regard, he has stated that application filed for condonation of delay does not disclose any valid reason and this Court in various judgments has pronounced that each day of delay is to be explained. In support of his contentions he has placed reliance upon Muhammad Afzal and 8 others v. Fida Hussain, and others (2017 CLC Note 51), Barkat Hussain v. Chief Administrator Auqaf, Azad Jammu And Kashmir, Muzaffarabad and 5 others (2017 M LD 1885), Nadeem Raza Abbasi v. Sardar Abu Bakar and 2 others (2016 CLC 1051), Nasir Mehmood v. Khawar Hussain and 5 others (2014 CLC 832), Messrs Uzma Construction Co. v. Navid H. Malik (2015 SCM R 642) and Muhammad Taufeeq v.
12. Muhammad Nawaz and 2 others (2015 CLC 1187). Lastly, he prayed for dismissal of these appeals.
13. 8.The learned Assistant Attorney General appeared on behalf of the Federal Government and also supported the Impugned Order.
14. 9.Arguments heard and record perused.
15. 10.It is reflected from perusal of the record that the Officer in Command informed on 28.7.2016 that rent agreement has been expired and in view of price hikes, the authorities have decided to increase the monthly rent of commercial shops. It was requested to prepare fresh tenancy agreements with increase of rent at the rate of Rs.120 per square feet and to pay the outstanding rent in total latest by 04.08.2016.
16. 11.Total of seventeen (17) tenants filed a Suit for Declaration with Permanent Injunction before the Senior Civil Judge, Lahore, titled Major (R) Salman Aziz Qazi and others v. Federation of Pakistan and others, to declare the letter dated 28.7.2016 for increase in yearly rent as illegal and to declare increase of 10% only, annually in rent against the suit properties. The Civil Judge, Lahore, on 6.8.2016, restrained the respondents to dispossess the plaintiffs from the suit premises and suspended the operation of the impugned letter dated 28.7.2016 till the next date of hearing. However, on 5.4.2017, the Civil Court, Lahore dismissed the interim application for interim injunction of the Appellants and vacated the stay order earlier granted for the reason that rent deed has expired in the year 2016 and there is no fresh rent deed existed between the parties.
17. 12.On the other hand, the Officer in Command filed an Ejectment Petition under Section 17 of the Cantonments Rent Restriction Act, 1963 on 18.1.2017 before the Rent Controller, Lahore for eviction of the tenants from rented property. The Additional Rent Controller, Lahore after recording evidence of both parties, passed the Impugned Order, accepting the ejectment petition on the ground of default and expiry of lease agreement and directed the tenant to vacate the premises and hand over its peaceful possession to the landlord within thirty (30) days.
18. 13.The Additional Rent Controller, Lahore, in the Impugned Order, reached at the conclusion that the tenant himself admitted in his written reply and evidence that he had not paid the rent to landlord since September 2016 till filing of the instant Ejectment Petition. Neither the tenant filed any application before the Rent Controller for depositing the rent, nor he approached to AG's Branch Rawalpindi in this regard. Hence he committed default. It was also noted in the Impugned Order. that the tenant himself admitted during evidence that rent agreement has expired in June, 2016 and no fresh lease agreement was executed between the parties. Further, the rent agreement requires in case of renewal of lease that the tenant has to submit a written application in the office of the DG Housing at least three (3) months prior to the expiry of the existing term, whereas, in the present petition the tenants have not produced any such document/application. Moreover, the AGs letter was written on 18.8.2017 but the tenants presented the same after one (1) month when his oral as well as documentary evidence was closed, which shows the mala-fide on the part of tenant.
19. 14.The Appellants, therefore, filed instant appeal along with an application for the condonation of delay under Section 5 of the Limitation Act, 1908 stating that the Appellant filed a Writ Petition before the honourable Lahore High Court on 19.11.2017, and withdrew the same being not maintainable.
15. In order to resolve the controversy, the following moot points emerge for determination of the issue:- (a)Whether the Rent Controller, Lahore has rightly allowed the Ejectment Petition of the landlord?
20. (b)Whether the present Appeal is maintainable, having been filed after lapse of the period allowed under the applicable law?
21. (a): Whether the Rent Controller, Lahore has rightly allowed the Ejectment Petition of the landlord?
16. The Honourable Supreme Court has held in Government of Sindh and another v. Muhammad Shafi and others (PLD 2015 SC 380) that "from the language of the lease document, when it is clear that the tenancy is for a fixed period of time, even if it (the deed) contains a clause for renewal, but such renewal is left at the option of the lessor, the lease cannot be held to be permanent in nature."
22. Further, in Nadeem Raza Abbasi v. Sardar Abu Bakar and 2 others (2016 CLC 1051 (Islamabad)), it was held that relationship of landlord and tenant would be governed by terms and conditions set in the lease agreement. Such relationship would come to an end with non-existence of contractual obligations. Occupation of premises by the tenant would not only depend upon payment of rent but also upon the period mentioned in lease agreement or extension agreement. Tenancy would not remain valid upon lapse of period mentioned in lease agreement. Nothing was on record that lease agreement had been extended between the parties in the present case. Mere payment of rent would not reflect extension of lease agreement. Eviction petition was maintainable on sole ground of expiry of tenancy. Moreover, in Muhammad Taufeeq v. Muhammad Nawaz and 2 others, (2015 CLC 1187 (Lahore)), it was held that in absence of written agreement as to period, the tenancy would be deemed to be on month to month basis terminable on one month's notice by either party. After filing of execution petition of order enhancing rent, it was deemed that notice to terminate tenancy was served. Further, tenant did not deposit rent at enhanced rate and as such was defaulter, and tenancy also stood terminated with expiry of its period, which was on month to month basis. Therefore, the High Court declined to interfere in the order passed by Rent Tribunal.
17. Having gone through the powers of the Rent Controller appointed under the Act and the applicable law, for eviction of tenant on the application of the landlord, it remains clear that the tenants in the instant Appeals have violated the provisions of law by not paying the rent to the Respondents since September 2016 till filing of the instant Ejectment Petition, and not filing any application before the Rent Controller for depositing the rent, or by not bringing the dispute of increase of rent before the Rent Controller for deciding the same. Even otherwise, the rent agreement has expired in June, 2016 and no such fresh agreement was executed between the parties. Therefore, the tenants are liable to be evicted from their respective properties under the expired tenancy agreement, and the Impugned Order has been passed in accordance with law.
23. Issue (b): Whether the present Appeal is maintainable, having been filed after lapse of the period allowed under the applicable law?
24. 18.Section 24 of the Act requires any aggrieved party by an order or interim order of the Controller, to file an appeal within thirty (30) days of such order before the High Court, which shall make an appropriate final order after perusing the record of the case and giving the parties an opportunity of being heard. The present Appeals admittedly filed under this Section, are therefore, maintainable if these have been made within thirty (30) days of the Impugned Orders. As noted above, these Appeals have been filed after expiry of three (3) days allowed by Section 24 of the Act with an application for condonation of delay under Section 5 of the Limitation Act, 1908.
25. 19.In Barkat Hussain v. Chief Administrator Auqaf and 5 others, (2017 M LD 1885 SC (AJ&K)), it was held that extension in limitation could be given only to the party who had been prosecuting his case with due diligence. Since the petitioners had filed writ petition when an alternate efficacious remedy was available to them, time consumed in prosecution of writ petition till the withdrawal of same could not be said to have been consumed bonafidely. Further, even wrong advice of counsel did not constitute sufficient cause for condonation of delay. It was also held in the case of Muhammad Afzal and others v. Fida Hussain and others (2017 CLC Note 51), that applicants had not acted in good faith and due diligence as required by the law because instead of availing further remedy as provided in the law had filed an application under Section 12(2) of C.P.C. after considerable period on baseless grounds.
26. 20.Further, it has been established in ABM Engineering Karachi v. Zeenat Zubair Siddiqui and others (1987 CLC 2318) that the Act [Cantonments Rent Restriction Act, 1963], being a special law, provision of Section 29 excludes provisions of Section 5 of the Limitation Act, 1908, and accordingly, the delay in filing appeal was not condonable. (also see, Ali Muhammad and another v. Fazal Hussain and others (1983 SCM R 1239). Reliance is also placed upon Monazah Parveen v. Bashir Ahmad and 6 others (2003 SCM R 1300), wherein it has been held as under:- "Delay could not be condoned on the basis of wrong advice tendered by advocate as it was essential for the defendant to show that he followed the remedy before wrong forum acting with due care and caution on the basis whereof delay could be condoned but the defendant had failed to establish such fact. Conduct of the defendant depicted a careless and callous approach on the basis whereof condonation of delay had rightly been refused by the Appellate Court.
27. Conclusion drawn by the Appellate Court and High Court being well based did not call for any interference. "
28. In Province of Punjab through District Officer (Revenue) Bhakhar and another v. Noor Muhammad and 3 others, (2016 M LD 1787), it has been held as under:- "Gross negligence of a counsel in selection of the forum had no ground for exclusion of time or condonation of delay. Application for condonation of delay along with appeal was dismissed."
29. 21.In view of the above, since the time for filing appeal is provided in the special law, being the Act itself, and is not prescribed by Limitation Act, 1908, provision of Section 5 of the Limitation Act, 1908 has no applicability in the matters governed by the Act. Even otherwise, the appellants had filed writ petition when an alternate efficacious remedy was available to them, time consumed in prosecution of writ petition till the withdrawal of same could not be said to have been consumed bonafidely. Further, wrong advice of counsel cannot constitute sufficient cause for condonation of delay, because the appellants had not acted in good faith and the diligence as required by law.
30. Therefore, the period in excess of thirty (30) days cannot be condoned.
31. 22.Resultant for what has been discussed above, these appeals are hereby dismissed being barred by time as well as on merits with no order as to costs.