MAMOON RASHID SHEIKH, J.---The instant appeal has been filed under Section 24 of the Cantonments Rent Restriction Act, 1963, against the order, dated 16.05.2018, passed by the Additional Rent Controller, Lahore Cantt., whereby the appellant, upon the respondent's ejectment petition, has been directed to vacate the premises in question (House No,36, Khalid Lane, Sarwar Road, Lahore Cantt.), hereinafter referred to as "the property", and handover its vacant possession to the respondent within thirty (30) days.
2. The appellant has also filed C.M. No,2/2018 for adducing additional evidence. The said application shall be decided along with the main appeal.
3. The facts relevant for the present purposes are to the effect that the appellant is stated to have entered into the Lease Agreement, dated 18.04.2014, with the respondent in respect of the property.
The monthly rent was fixed as Rs,3,30,000/- per month and Rs,23,10,000/- is stated to have been paid as advance rent. In addition thereto a sum of Rs,6,60,000/- was paid by the appellant to the respondent by way of fixed deposit/security, which amount was refundable at the time of vacating the property minus damages/shortages and outstanding bills of utilities. It is further stated that the period of lease was ten (10) years commencing 01.06.2014.
It is the appellant's case that subsequent to the execution of the Lease Agreement, dated 18.04.2014, the parties entered into a second Lease Agreement, dated 18.08.2014, in respect of the property. The terms and conditions of the second Lease Agreement were more or less the same as in the first Lease Agreement except that the rent of the property was reduced from Rs,3,30,000/- per month to Rs,1,75,000/-.
On 07.03.2016 the respondent filed an ejectment petition, against the appellant, in respect of the property, under Section 17 of the Act, ibid., inter alia on the grounds that the appellant had defaulted in payment of the monthly rent of the property with effect from January, 2016; the property was rented out to the appellant for residential purposes but the appellant, contrary to the Lease Agreement, is using the property for commercial activities; the property is required by the respondent for his, "personal use and occupation"; and the respondent has terminated the Lease Agreement but the appellant has not vacated the property. It was also alleged that as a result of the unauthorized commercial activities being carried out by the appellant in the property the Cantonment Board has issued a notice to the respondent in respect of the illegal commercial activities.
4. The petition was resisted by the appellant by filing a reply. Out of the divergent pleadings of the parties, on 14.12.2016, the Additional Rent Controller framed the following Issues:-- "1. Whether the respondent is willful defaulter in respect of monthly rent at the rate of Rs,330000/- pm since December, 2015? OPP
2. Whether the petitioner has come to this court with unclean hands and his intention is mala fide?
OPR
3. Whether the petition is maintainable in its present form? OPR
4. Whether the respondent issued the cheque No,13996231 dated 1.1.2016 amounting Two million Rupees to the representative of petitioner in term of payment of rent? OPR
5. Whether the respondent has spent two million rupees on renovation of demise property with the consent of the petitioner and on adjustable on payment of rent? OPR
6. Whether in the presence of the first agreement dated 18.4.2016 second, rent agreement was executed between the parties and have any force? OP Parties.
7. Whether the respondent is liable to be ejected from the demised premises? OPP
8. Relief."
The parties adduced their oral as well as documentary evidence and on the basis thereof Issues Nos,1 to 4, 6 and 7 were decided in favour of the respondent, whereas issue No,5 was partly decided in favour of the respondent. As a consequence, the ejectment petition was decided in favour of the respondent in the terms referred to in para-1 above.
5. The learned counsel for the appellant has assailed the impugned order, dated 16.05.2018, by raising the following grounds:- a. The impugned order has been passed by gross misreading and non-reading of evidence; b. The impugned order suffers from gross illegalities and irregularities committed by the Additional Rent Controller during the trial of the ejectment petition; c. The Additional Rent Controller failed to appreciate that the lease of the property was for a period of ten (10) years commencing 01.06.2014. The said period was not yet over, therefore, the respondent could not terminate the Lease Agreement; d. The respondent was unable to establish the ground of default; e. The Additional Rent Controller failed to appreciate that subsequent to the Lease Agreement, dated 18.04.2014, a second. Lease Agreement, dated 18.08.2014, was entered into by the parties. And through the second Lease Agreement the rate of rent of the property was reduced from Rs,3,30,000/- per month to Rs,1,75,000/- per month; f. The Additional Rent Controller also failed to appreciate that the respondent had told the appellant that the respondent owed Rs,40,00,000/- to his bank. The respondent, therefore, demanded that the said amount be paid by the appellant to the bank, to be adjusted against the appellant's liability of rent. The said amount of Rs,40,00,000/- was duly paid by the appellant to the respondent through various cheques as has been mentioned in preliminary objection No,4 of the appellant's reply to the ejectment petition. Indeed, the complete description of the cheques has been given in the said preliminary objection.
However, at the time of adducing evidence due to mistaken legal advice the photocopies of the said cheques with the respondent's receipt endorsed thereon could not be produced in evidence.
The appellant, has therefore, filed C.M. No,2/2018 along with the appeal for bringing on record the said copies and other documents by way of additional evidence; g. The appellant has paid several other amounts to the respondent, which have been duly received and acknowledged by the respondent. The appellant seeks permission to also bring those documents on the record as additional evidence. C.M. No,2/2018 may, therefore, be allowed and the appellant may be allowed to lead additional evidence in his defence; h. During the trial of the petition the appellant moved several applications. The first on 31.05.2017, for a direction to the respondent to produce the original Lease Agreement, dated 18.08.2014, for comparison of thumb impressions of the parties; The second application was filed, on 19.10.2017, under Articles 59, 61, 84 of the Qanun-e-Shahadat Order, 1984, for comparison of thumb impressions; The third application was filed on 31.01.2018, for production of the Lease Agreement dated 18.08.2014; The fourth application, dated 07.02.2018, was filed under Articles 80 and 82 of the Order, ibid., for adducing the evidence of additional witnesses; Submits that the Additional Rent Controller did not decide the afore-referred applications before deciding the ejectment petition. Contends that by not deciding the applications before deciding the main petition the Additional Rent Controller has erred in law and has thus prejudiced the appellant's case; and j. The Additional Rent Controller also failed to appreciate that it is settled law that in an ejectment petition where default of rent is alleged any amount paid by a tenant to the landlord by way of security is to be treated as advance rent. In the instant case admittedly the appellant had paid an amount of Rs,6,60,000/- as security. The said amount was not adjusted by the Additional Rent Controller at the time of holding that the appellant had defaulted in paying the rent. The Additional Rent Controller has, therefore, erred in law.
6. Relies on the judgments reported as Muhammad Umer v. Muhammad Qasim and another (1991 SCMR 1232), Muhammad Yousuf and 12 others v. Abdul Khaliq and others (1991 SCMR 1981), Nazir Ahmad and another v. M. Muzaffar Hussain (2008 SCMR 1639), Mrs. Batool v. Shahzad (2002 MLD 1087), Muhammad All v. Syed Asghar All Imam (1982 CLC 1030), Haji Abdul Ghani v. Makhan Bano (1981 CLC 1060), Mahmud and 6 others v. Haji Tajdin and 8 others (1984 CLC 97) and Masjid-e- Humra v. Zamir Ahmad (PLD 1981 Karachi 473).
7. The learned counsel for the respondent supports the impugned ejectment order. The learned counsel-has set up the following defence in response to the grounds raised by the Learned counsel for the appellant:-
(i) The agreement, dated 18:04.2014, was terminable in case the appellant defaulted in paying the monthly rent. Admittedly, the appellant did not pay the monthly rent of the property w,e,f, January, '2016, therefore, he committed default. Thus the respondent was within his rights to terminate the Lease Agreement;
(ii) The second Lease Agreement, dated 18.08.2014, was not entered into by the parties, as alleged by the appellant. Submits that the entering into of a second Lease Agreement defies logic as in the first Lease Agreement the rate of rent was fixed as Rs,3,30,000/- per month and through the alleged second Lease Agreement the rate of rent was reduced to Rs,1,75,000/- per month. The appellant has been unable to establish as to why the respondent would agree to a reduction in the rate of rent in such a short span of time and in unchanged circumstances, given the fact that property prices and rent normally increase with the efflux of time.
(iii) All the applications moved by the appellant in respect of the alleged second Lease Agreement were decided by the Additional Rent Controller before passing of the ejectment order, dated 16.05.2018. Contends that the argument of the learned counsel for the appellant that the said applications were not decided before passing of the ejectment order is not supported by the record;
(iv) Even otherwise, the prayer of the appellant for a direction to the respondent to produce the original alleged second Lease Agreement, dated 18.08.2014, was not tenable in the eye of law for the simple reason that the "Note" appearing at the end of the alleged second Lease Agreement after Clause 7 states that:- "Note: This lease agreement is being made in two originals, one or the LESSEE and one for the LESSOR." Submits that if indeed the alleged second Lease Agreement had been entered into by the parties then, as per the above quoted "Note", a presumption arises that the second original copy of the said Lease Agreement was with the appellant. No justification has, however, been shown by the appellant as to why he did not produce that second original copy at the time of leading evidence;
(v) It was established on the record that the appellant is a willful defaulter of rent;
(vi) Admittedly, the property was leased out to the appellant for residential purposes but in violation of the Lease Agreement it-started using the property for commercial purposes. As a consequence, a notice was issued to the respondent by the Cantonment Board in respect of the said violation. The respondent brought this fact to the notice of the appellant but it failed to take any step to rectify the position. Indeed, if the appellant does not vacate the premises the Cantonment Board is likely to take penal action against the respondent; and
(vii) Admittedly, the documents being sought to be produced by the appellant, in support of its case, by way of additional evidence were within the knowledge of the appellant and more importantly were in its possession at the time of recording of evidence. The appellant cannot now claim that the said documents were not adduced in evidence, at the relevant time, due to mistaken legal advice. Prays for dismissal of C.M. No,2/ 2018.
8. I have considered the above arguments in the light of the record and have come to the following conclusions:- I. The Lease Agreement between the parties (dated 18.04.2014), or for that matter if for one minute it is assumed that there was a second Lease Agreement (dated 18.08.2014), was admittedly executed for a period of ten (10) years starting with effect from 01.06.2014. As the Lease Agreement was beyond a period of one (1) year, therefore, under the provisions of Section 107 of the Transfer of Property Act, 1882, read with Section 17(d) of the Registration Act, 1908, the Lease Agreement was compulsorily registerable. However, admittedly the Lease Agreement is unregistered.
It is settled law that a lease of immovable property from year to year or for a term exceeding one year or reserving yearly rent can only be made through a registered instrument. In view thereof, the Lease Agreement for the period beyond one year would, therefore, be bad in law.
As observed above, the Lease Agreement is unregistered. As a consequence, the tenure of the Lease Agreement was only binding between the parties for the initial eleven (11) months, whereafter the relationship between the parties is to be regulated by the terms of the statute in question, that is to say, the Cantonments Rent Restriction Act, 1963. The tenancy between the parties shall, therefore, be considered to be a statutory tenancy on a month to month basis beyond the initial period of eleven (11) months.
Reliance is placed on the judgments reported as Habib Bank Limited v. Dr. Munawar Ali Siddiqui (1991 SCMR 1185), Mst. Rukhsana Bhatti v. K & N's Foods (Pvt.) Ltd. and others (PLD 2013 Lahore 119) and Messrs Shama Soap Factory, Faisalabad v. Commissioner of income Tax, Zone, Faisalabad (2006 PTD 178).
In view of the above legal position the contention of the learned counsel for the appellant that the Lease Agreement had not expired, therefore, the respondent could not terminate the .Lease Agreement or that the ground of personal need was not available to the respondent loses force and is accordingly repelled; II. The learned counsel for the appellant has laid great stress on the argument that the impugned ejectment order is bad in law as before its pronouncement the Additional Rent Controller did not decide the appellant's pending applications vis--vis the production of the purported second Lease Agreement, comparison of signatures/thumb impressions and production of additional evidence/witnesses. The contention of the learned counsel is, however, not supported by the record. The appellant's applications, referred to in Para 4(h) above, 'were decided by the Additional Rent Controller through orders dated 25.10.2017, 31.01.2018, 07.02.2018 and 14.03.2018, that is to say, much prior to the pronouncement of the ejectment/ impugned order, dated 16.05.2018; III. Admittedly, the appellant was unable to bring on record any evidence, oral or documentary, regarding the payment of rent to the respondent subsequent to the month of December, 2015.
There is nothing on the record to show that the appellant either tendered or paid the monthly rent to the respondent with effect from January, 2016. I, therefore, do not consider that the Additional Rent Controller has erred in deciding Issues No, 1 and 4 against the appellant and thus hold that the appellant is a willful defaulter; IV. The appellant admittedly took the property on rent for residential B purposes, as established from the Lease Agreement. It is also an admitted fact that the appellant converted the property to commercial use. The appellant thus violated the terms of the Lease Agreement; V. As to the refusal and/or failure of the respondent to produce the original of the purported second Lease Agreement (dated 18.08.2014) and thus prejudicing the appellant's case, suffice it to say that the "Note" quoted in Para 7(iv) above is admittedly part and parcel of the purported second Lease Agreement and if indeed the alleged second Lease Agreement had been executed the "second" original copy thereof should presumably have been in possession of the appellant, however, no justification has been shown nor any explanation given as to why the appellant failed to adduce the said second original copy in his evidence; VI. The learned counsel for the appellant has similarly been unable to establish as to why the appellant did not adduce in evidence the documents appended to C.M. No,2/2018, except to submit that the said documents were not produced at the time of trial due to mistaken legal advice. The said argument I am afraid does not advance the appellant's case. It is settled law that in order to be able to produce additional evidence, whether oral or documentary, at the appellate stage, a party has to establish that the Court against whose decree/order the appeal has been filed refused to admit evidence which ought to have been admitted or that the documents in question were not available or traceable during the trial. In absence of any of the above conditions being met additional evidence is not normally allowed to be led by an appellate Court. In the instant case neither of the above grounds has either been pleaded or established. On the contrary, it has been maintained that the documents were available but were not produced in evidence due to mistaken legal advice.
It is further settled law that an appellate Court in exercise of its power to allow additional evidence normally does not favour a delinquent litigant. This power is only exercised in genuine cases. In the instant case, to my mind the reason put forth by the learned counsel does not meet the above criteria.
I am fortified in my view on the basis of the judgments reported as Muhammad Hanif and another v. Sultan (1994 SCMR 279), Syed Phul Shah v. Muhammad Hussain and 10 others (PLD 1991 SC 1051), Khurshid Ali and 6 others v. Shah Nazar (PLD 1992 SC 822) and Zar Wali Shah v. Yousaf Ali Shah and others (1992 SCMR 1778).
In view thereof, C.M. No,2/2018 fails and is accordingly dismissed.
VII. As to the argument of the learned counsel for the appellant in respect of non-adjustment of the security and/or determination of arrears, I find that the impugned order has sufficiently addressed those arguments, therefore, they do not require any further consideration; VIII. The learned counsel for the appellant has even otherwise been unable to establish that the impugned order is the result of misreading or non-reading of evidence; IX. I also do not find that the impugned order is either arbitrary or perverse.
9. Under the circumstances, the appeal fails and is accordingly dismissed.
There is no order as to costs.