The petitioner is required to make good the deficiency by filing attested copies of the LCR.
When confronted, learned counsel pleads urgency and further apprised that the impugned order annexed with the petition are the attested copies while the rest, if so requires, shall be submitted in due course.
In view of above, of fice objection is disposed of. At the request of the learned counsel, main case is taken up.
MAIN CASE.
The instant writ petition is arising out of judgments and decrees dated 13.09.2021 and 16.02.2022, passed by the Rent Controller and the Additional District Judge, Islamabad (West) respectively , whereby ejectment petition under Section 17 of the Islamabad Rent Restriction Ordinance, 2001 filed by the landlord/predecessor-in-interest of the respondents ("respondent ") was allowed and the appeal was dismissed by allowing one month?s time to the tenant ("petitioner ") for vacation of Shop No.8, Swimming Poll Complex, School Road, Markaz F-6, Super Market, Islamabad (" rented premises ") subject to deposit of monthly rent.
2. The learned counsel argued that the eviction would be subject to return of goodwill in terms of clause 4 of the lease agreement and that under clause 3, the tenancy would be presumed as extended for 5 years subject to 20% increase in the rent as under the same clause, the tenancy was being extended since last 35 years. According to the learned counsel, this aspect is supported from the fact that the lease agreement dated 26.04.2007was signed after the expiry of one year and two months and the original owner did not object upon the tenancy after the expiry date.
3. Heard. Record annexed with the petition has been examined.
4. The relationship of landlord and tenant inter-se the parties under the lease agreement dated 26.04.2007 Ex.A6' is an admitted fact. It is also an admitted fact that no fresh lease agreement had been entered into between the parties after the agreement, Ex.A6, unlike previous agreements made in the year 1986, 1991 and 1994 respectively .
5. The lease agreement, Ex.A6, being an unregistered document cannot be pressed into service to seek extension of tenancy being violative of Section 49 of the Registration Act, 1908.The continuation of tenancy after the expiry of lease period would amount to violation of terms and condition of the rent agreement and the tenancy would be construed as invalid. The Rent Controller rightly observed that the Islamabad Rent Restriction Ordinance, 2001 does not recognize any goodwill or premium and its return being a pre-requisite for seeking eviction.
6. As regards the question that the tenancy is for an indefinite period of time under the lease agreement Ex.A6 and that the eviction could only be ordered subject to return of goodwill, guidance is taken from the law laid down by the Hon'ble Apex Court in the case of "Mirza Book Agency through Managing Partner and others v. Additional District Judge, Lahore and others"( 2013 SCMR 1520 ) wherein it was held that:- "3. As regards the question that the tenancy is for an indefinite period of time, learned counsel for the appellant has not been able to show us, if the alleged tenancy has been created under some registered instrument in which there is any such stipulation only for the reason that some pagri allegedly has been paid to the respondent or his predecessor -in-interest or to a person from whom the title has devolved upon the respondent, would by itself not make the tenancy in perpetuity . But this shall not foreclose the right and remedy if any available to the appellants for the recovery of the said amount of pagri from the person who is liable to return if permissible under the law, for which the appellant may bring an independent action, subject to the law (including the law of Limitation) before the appropriate forum. However , in the facts and circumstances, we are not inclined to interfere in the instant matter .
Resultantly , this appeal is, accordingly , dismissed."
8. The ratio ibid guides to hold that a tenant cannot claim extension of tenancy on account of payment of goodwill; however, he would be at liberty to seek recovery of said amount through an independent action, subject to law before appropriate forum. Reliance is also placed upon case of Muhammad Nadeem & others v. Anjuman-e- Nasir-ul-Aza through General Secretar y (2020 CLC 526) and "Pir Muhammad Manjh v. Naveed Iqbal Malik and 2 others (2016 LHC 1920).
9. In view of above, there exists no justification to interfere in the concurrent findings of the two learned courts below , which in the backdrop of the facts of the instant case, are well reasoned and based upon correct appreciation of law on the subject. Consequently , the instant writ petition fails and accordingly dismissed in limine .