Through this constitutional petition the petitioner has challenged the judgment dated 06.08.2018 passed by learned Additional District Judge, Lahore, whereby appeal filed by the petitioner was dismissed and the order dated 07.10.2017 passed by the Special Judge (Rent), Lahore was upheld with modification.
2. The brief facts of the case are that Ch. Muhammad Saeed, predecessor-in-interest of Respondent No, 3 was owner in possession of Shop No, 13, Plot No, 08, Azmat Plaza Main Commercial Zone, Allama Iqbal Town, Lahore.
After his death on 23.10.1989; his widow rented out the said shop to petitioner for rent of Rs,1400/- per month vide written tenancy agreement dated 22,01.1990 and presently the monthly rent of the shop is Rs,8,007/-per month, It was settled between the parties that tenancy will continue after expiration of initial period without any amendment in settled rent conditions and the landlord cannot evict the petitioner on any ground except his failure to pay the rent of two continuous months subject to prior notice, After the death of the landlady and 'expiry of the tenancy period, the present landlord/Respondent No 3 ("respondent") approached the petitioner for vacation of the said shop who refused to do so. Consequently , the respondent filed an ejectment petition which was allowed by, the Special Judge (Rent) vide his order dated 07.10.2017 with a direction to the petitioner to vacate the premises within a period of 30 days. Feeling aggrieved of the said order , the petitioner preferred an appeal by raising the ground that question of "pagri" has not been properly considered and prayed for setting-aside of the impugned order . The said appeal was dismissed by the appellate Court vide judgment dated 06.08.2018 with a direction to the petitioner to vacate the premises within a period of four months. However , to the extent of payment of "pagri" the matter was remanded to the trial Court for decision afresh. The said judgment is under challenge through instant constitutional petition to the extent of ejectment order only .
3. Learned counsel for the petitioner has contended that both the Courts below have not properly appreciated the facts and material available on record and have passed the impugned order/judgment in a slipshod manner without properly considering and deciding the question of "pagri" raised by the petitioner in defence to the ejectment petition, therefore, both the order and judgment of the Courts below are liable to be set-aside.
4. Conversely , learned counsel appearing on behalf of Respondent No, 3 has defended the impugned orders on the ground that "pagri" was not mentioned in the rent agreement and the said plea was raised by the petitioner as an afterthought just to delay and prolong the proceedings.
5. Heard. Record perused.
6. The tenancy between the parties through original rent deed dated 22.01.1990 is admitted which was initially for a period of 11 months. Although it is claimed by the petitioner that said tenancy agreement was thereafter extended for an unlimited period and payment of "pagri" was made by the petitioner, no such document has been placed on the record to substantiate the said claim.
Admittedly, "pagri" is not mentioned in the original agreement and the petitioner claims to have paid the same subsequently and states that unless the question of "pagri" is determined, ejectment petition could not have been decided. For that purpose relies upon judgment reported as Zaheer Ahmed Babar vs. Additional District Judge, Lahore and 2 others. (2015 YLR 1617). In the afore referred judgment, the rent agreement specifically mentioned that "pagri" had been given whereas in this case the rent agreement is silent to that extent and "pagri" is claimed to have been subsequently given. Consequently, the facts of the said case are distinguishable from the case in hand and would not be applicable to it.
7. The initial period of tenancy was for 11 months which was extendable by mutual consent Of the parties. The respondent claims that the said tenancy was orally extended for unlimited period and he had paid "pagri" for the same. However, (it is settled by now that where the period of tenancy has expired, the tenant who relies upon its extension has to establish through cogent evidence the time period for which it has been extended otherwise, oral extension would be tantamount to extension of one month only and such tenancy has got to be extended on each and every successive month and terminable at one month's noticed. Reliance in this behalf is placed on Muhammad Nayab vs. Additional District Judge, Rawalpindi and 2 others (2016 MUD 1095), Muhammad Taufeeq us. Muhammad Nawaz & 2 others (2015 CLC 1187) and Aftab Ahmad Raja vs. Malik Faizullah Khan Afridi & others (2011 YLR 2205). The filing of ejectment petition is itself a notice for termination of tenancy. Reliance is placed on Sardar Muhammad us. Khawaja. Muhammad Nazar (2004 CLC 2891. In view of the afore referred judgments it was for the petitioner to show the extension of tenancy on monthly basis after the expiry of initial period of tenancy and each successive month would give a cause of action to the respondent to file ejectment petition. The petitioner has failed to establish extension of tenancy, therefore, the Courts below were justified to pass ejectment order against him as expiry of period of tenancy is a ground to pass such an order.
No exception can be taken to the same. As regards the ground of the petitioner that because the matter relating to "pagri" has been remanded, thereby it would he presumed that application for leave to contest had been partially allowed in his favour, therefore, matter should have been remanded to the trial Court in its entirety for decision. Suffice it to say that to be granted leave to contest for the entire case the petitioner was to establish that as per terms and conditions of the agreement, tenancy could not be terminated without refund of "pagri". However, the agreement in the present case is silent to that effect and "pagri" is 'claimed to have been subsequently paid, therefore, the question of "pagri" cannot be clubbed with the question of expiry of period of tenancy in this case and both are to be dealt with separately. Consequently, the appellate Court was justified in maintaining the order of eviction and separately remanding the matter relating to "pagri" for determination by the trial Court. No illegality has been pointed out in the impugned judgment, therefore, no exception can be taken to the same.
8. For what has been discussed above, this constitutional petition being devoid of any merit is dismissed.