' This appeal under section 21 of the Sind Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance), has been filed against the order dated 28th March, 1982 of the Rent Controller No, XV, Karachi dismissing the application under section 15(2) (vii) of the Ordinance for ejectment of the respondent.
' The facts of the case briefly stated are as under : '
1. The appellant granted lease of Plot No, 569, Garden East measuring 949 sq. Yards on Jehangir Road, Karachi, an urban area, to the respondent on 27th January, 1975 for a period of 10 years commencing from 1st May, 1975 and the lessee had the right and liberty to install and maintain on the demised premises a Pump Outfit or Outfits with underground tank or tanks with necessary fittings and pipe lines and also such other fittings, buildings facilities or equipment as may be required for Motor Spirit/High Speed Diesel Oil filling/service station. The lease was under registered lease deed dated 27th January, 1975 and there was provision of 12 months' notice before expiry of the period of lease or renewed lease and the lessee was given the option to renew the same for a period of 10 years on the same terms and conditions except that the rate of rental had to be increased by 10 percent. One such option had been exercised to renew the lease till 30th April, 1985.
2. On 23rd February, 1981 application under section 15 (2)(vii) of the Ordinance was filed for ejectment of the respondent on the ground that the appellant required the premises for her own use and that of family consisting of spouse aged 64 years, her daughter aged 25 years and her son aged 23 years. It was asserted that the landlady and her family were staying in a bed room in the Sind Club and she required demised premises as aforesaid.
3. The respondent in written statement filed on 19th March, 1981 made preliminary objections, that the case was not covered under the Ordinance as there was existing lease under registered lease deed; that the rent had already been paid upto 30th April, 1981 and K. M. C. Dues and taxes had been paid for a period upto 30th June, 1981 that the premises stood mortgaged with the City Bank N. A., Karachi who was, therefore, a necessary party that the respondent had ownership rights over immovable property built by the respondent under terms of the lease; that there was arbitration clause in lease agreement, in case of dispute between the parties ; and that the provisions of the Ordinance were ultra vires as the same being provincial law cannot override provisions of the Transfer of Property Act, which is Federal Law.
4. In the written statement objections were also inter a/ia taken to the description of respondent and inclusion of names of various officers of the respondent-Company. It was further contended that the husband of the appellant being alive and earning and both the children being adults no case of personal need had been made out and no cause of action had arisen.
5. On the pleadings of the parties the following issues were settled:-
(1) Whether the applicant requires the disputed premises for her personal use ?
(2) Whether this rent application is premature ?
(3) What should the order be ?
6. The learned Rent Controller gave finding with regard to Issue No, 1 in favour of the appellant but dismissed the application for ejectment, holding that the same was premature as according to the lease-deed the applicant (appellant herein) was not supposed to vacate the premises till expiry of the period of lease and even after the 10 years for which the lease had been extended at the option of the respondent till 30th April, 1985, the respondent had further option of extending the same for 10 years more. The learned Controller further held that in view of the arbitration clause in the lease agreement, if it was sought to eject the respondent, he had to be given notice and the matter had to be decided by arbitration.
7. In the instant appeal, Mr. S. A, Sarnad, the learned counsel for the appellant, who is also her husband and attorney has raised the following contentions ?
(i) That having given finding with regard to requirement of the appellant being bona fide for personal use, the Controller should have directed the respondent to give possession of the premises to the appellant, which he was under the law bound to do in view of the provisions of section 15 read with section 3 (1) of the Ordinance.
(ii) That the Controller had already dismissed the application for stay under section 34 on the ground that the arbitration clause related to the question of compensation and, therefore, the application for ejectment should not have been dismissed on the ground that under the agreement of lease, the matter had to be referred to arbitration.
8. With regard to Contention No, 1, it is observed that the registered lease deed under which the open plot was demised to the respondent is dated 20th July, 1975 when the Sind Urban Rent Restriction Ordinance, 1959 was in effect. The plot of land given on lease comes under the definition of "rented land" under clause (f) of section 2 of the Sind Urban Rent Restriction Ordinance, 1959 as it was land let separately for the purposes of being used principally for business or trade, within the meaning of the definition. The eviction of tenant from such rented land was permitted under section 13(3)(ii) but the first proviso thereto reads as under :- "Provided that where the tenancy is for specified period agreed upon between the landlord and the tenant, the landlord shall not be entitled to apply under this subsection before expiry of such period."
9. It is admitted position that the rented land was given on lease t the respondent-Company under registered lease deed and further that the lease at the time of the making of the application for ejectment was subsisting and had been extended till 30th April, 1985.
10. The Ordinance repealed under section 27 thereof the Sind Urban Rent Restriction Ordinance, 1959 and the position with regard to land le out on rent is somewhat different. Section 5 of the Ordinance reads under :- "5. Agreement between landlord and tenant.
(1) The agreement by which a landlord lets out any premises to tenant shall be in writing and if such agreement is not compulsorily registerable under any law for the time being in force, it shall be, attested by, signed by and seated with the seal of, the Controller within whose jurisdiction the premises is situated or, any Civil Judge or First Class Magistrate.
(2) Where any agreement by which a landlord lets out any premises to tenant is compulsorily register able under any law for the time being in force, a certified copy of the registered deed and where the agreement is not so register able, the original deed duly attested under subsection (1), shall be produced and accepted in proof of the relationship of the landlord and tenant : ' Provided that nothing in this section shall affect any agreement between the landlord and tenant immediately before coming into force of this Ordinance."
' The proviso makes it quite clear that any agreement between the land- I lord and tenant immediately before coming into force of the Ordinance shall not be affected.
11. Section 6 of the Ordinance which is about tenure of tenancy provides that no tenancy shall, at a time, be valid beyond such period as the landlord and tenant have, by mutual agreement, fixed before or after the commencement of the tenancy. The proviso to this section is also to the effect that the section was not to affect any tenancy existing immediately before coming into force of the Ordinance. In the instant case there is an agreement between the landlord and tenant which is one of the lease of the rented land and which is registered as required by the law. It is, therefore, quite clear that the tenure of tenancy is valid for the period at lease upto 30th April, 1985.
12. Section 15(2) of the Ordinance which applies where a landlord seeks to evict the tenant otherwise than in accordance with section 14, in the very clause (i) the ground that the tenancy has ceased to be valid under section 6 of the Ordinance, is mentioned. In the instant case the lease has not ceased to be valid. As already stated, however, clause (vii) which is with regard to landlord requiring the premises in good faith for his own occupation or use or for the occupation or use of his spouse or any of his children has been given as one of the grounds on which the Controller may make an order directing the tenant to put the landlord in possession of the premises if he is satisfied about the bona fides of the ground. Although clause (i) is only ground for ejectment after the tenancy has ceased to be valid under section 6, the same does not govern the rest of the clauses which are independent grounds on which the Controller can make an order of eviction of the tenant.
13. It is contended by Mr. Noor Muhammad, the learned counsel for the respondent that the respondent-Company has incurred heavy expenses on putting up the buildings, installations etc. On the open plot which was leased out to the respondent under a lease deed which permitted the erection of such buildings and putting up of such installations. It is, therefore, argued by him that the Legislature in enacting the Ordinance, could not have intended to affect the contracts already entered into by the parties under the provisions of the Sind Urban Rent Restrictions Ordinance, 1959.
The matter with regard to applicability of the Ordinance is dealt with in section 3 thereof which inter alia provides that the Government may by notification, exclude any class of premises or all premises in any area from operation of all or any of the provisions of the Ordinance. However, the learned counsel for the parties has not pointed out any such notification making the Ordinance not applicable to cases such as the instant one. As already stated since the lease was granted on the conditions mentioned in the lease deed long before coming into force of the Ordinance in November, 1979, it is to be considered whether the repeal of the Sind Urban Rent Restriction Ordinance, 1959 under section 27 of the Ordinance makes any difference in the applicability of the old provisions of law to the case in hand.
14. It is correct that tenant shall not be ejected except in the manner provided for in section 15 of the Ordinance. The learned counsel for the appellant has relied upon the judgment of the Lahore High Court in Commissioner Income Tax, Lahore v. Mst. Sakina Karim, wherein it was held that agreement of tenancy containing arbitration clause for referring any dispute arising to the arbitration does not affect the position that section 131 of the West Pakistan Urban Rent Restriction Ordinance, 1959 does not permit to resolve ejectment dispute in pursuance of arbitration agreement: as ejectment cannot be effected except under section 13 aforesaid. The C impugned order, therefore, to the extent that it makes a reference to the: arbitration clause cannot be supported. However, the learned Controller, in the impugned order has considered the application to be premature mainly on the ground that the registered agreement of lease shows that the lease will expire on 30th April, 1985. A perusal of section 6 aforesaid and section 15(2)(1) would show that it was not the intention of the Legislature to interfere with the tenancy by mutual agreement before the expiry of the period agreed upon. However, as already observed clause (vii) is not governed by clause (1) of subsection (2) aforesaid.
15. On behalf of the appellant the contention has been raised that the respondent has no right to speak against the finding with regard to personal requirement. The matter has come up in an appeal and the order under appeal can be maintained on a ground other than that which found favour with the Controller. In a recent decision of this Court in Mst. Shamsunnisa v. Shrimati Nirmala the same view was taken. The matter regarding personal use was contested before the learned Controller and pertinent and important points of law and fact were mentioned even in the written statement. In the circumstances of the case, the contention of the learned counsel for the appellant cannot be allowed. There is evidence on record that before the lease of land as an open plot there was construction on it which was being used for residential purposes. The three storey bungalow was demolished and the open plot converted into commercial plot for the purpose of leasing it out to the respondent and further that the respondent under the terms and conditions of the lease had the right to instal pump outfitting and put up buildings for petrol filling/service station on the plot and there is evidence on record that the respondent spent lacs of rupees on the construction and installation etc., on the consideration that he can run the petrol filling/service station at his option for 30 years. The buildings and installations are the property of the respondent and it is apparent from the evidence on record that the appellant landlady wants to utilize the demised land for the purpose of constructing a residence for herself, her spouse and two children.
It was, therefore, for the learned Controller to consider whether he could be satisfied that the landlady requires the premises in good faith for occupation or use. Before the plot can be used as house, the buildings/installations have to be demolished and removed.
Even the provisions with regard to requirement for reconstruction or erection of a new building as provided in clause (vi) of subsection (2) of section 15 make it necessary that the landlord obtains sanction from the competent authority to support his case for requirement in good faith and in the instant case there is only the word of the attorney of the landlady that the demised land is required for the use of the landlady, her spouse and two children. As a matter of fact the finding on Issue No, 1 has been arrived at by the learned Controller without going into the matter of good faith and bona fide. The order in this respect is not a speaking order. The learned Controller did not consider it to be fit and proper to refer to the evidence on record and has merely stated that the attorney of the appellant has proved his case for bona fide use which again according to the learned Controller had not been disputed by the respondents in their evidence. The Assertion by the learned Controller would appear not to be borne out from the record of the case in as much as in the very written reply, it was taken as one of the grounds that the landlady under the personal law1 2 was not to provide accommodation for her husband who was alive and earning and her two adult children. In the written reply it was also denied that the landlady wanted the plot in question for her personal use and the respondents had put her to strict proof of such requirement and had further pointed out that the landlady had deliberately omitted the identification of the flat in her occupation and the name of the building so as to prevent the respondents from ascertaining the facts independently. It was further stated as under :- "That good faith was specifically denied to exist on the part of the landlady and even it was disputed whether power-of-attorney still subsisted in favour of her husband."
' It was also pleaded before the learned Controller that on the offer by the respondent of about 3 lacs rupees (Rs, 3,00,000) as advance rent at monthly rental of Rs, 2,750, her husband who was her predecessor as landlord, demolished three-storey bungalow in 1965. The appellant, her husband and her three children shifted to a rented house in P. E. C. H. Society, where they lived for about 3 years and then in 1968 they shifted to another rented house, in which they resided till April, 1977. It was further stated that although, the landlord had in 1972 filed Rent Case for ejectment of the appellant, two months before that date on 27th January, 1975 the appellant had signed and executed 10 years lease in favour of the respondents for the period of first option of 10 years and no personal need was felt by the appellant for the land she had given on the lease to the respondents.
The appellant had then shifted to a flat in the Sind Club with her husband who is member of the Club and her two children, and all of them appear to have lived there for 3 years. It was further pleaded before the Controller that in the middle of 1980, the appellant and her daughter went away to United States of America, where they have been since last 14 years.
' The attorney has admitted that landlady and her daughter are at present residing in the United States of America for treatment of the daughter and only after the daughter is cured they are likely to return. He has given address of the appellant in United States of America, where she has gone, as treatment of her daughter. In Pakistan and England could not succeed and the attorney could not give time when she Was likely to return.
' From the facts stated, it is rather doubtful whether the landlady and her daughter are to return in the foreseeable future and with regard to the spouse, namely, her attorney, it is admitted position that be being a member of the Sind. Club is entitled to the accommodation which he has obtained.
It may here be observed that the admissions made by the attorney of the appellant who is also her husband go to show that they preferred to lease out the open land after demolishing three-storey building which they had on the plot and it is also apparent that they had utilized rented accommodation for a number of years. No case has been pleaded before this Court as to why it has suddenly become necessary for the landlady, her spouse and her children to get their tenant ejected from the plot on which admittedly he has constructed buildings and put up installations costing lacs of rupees. The order of dismissal of ejectment application is, therefore, maintained on the ground of failure on the part of the appellant to prove personal requirement in good faith. The appeal is accordingly dismissed, however, with no order as to costs. 1979 CLC 644 1981 CLC 1745