' In this Constitutional petition, order, dated 23-11-1988 passed by learned Rent Controller, Multan, accepting the ejectment petition of respondent No,3 and order dated 20-6-1989 passed by learned Addl. District Judge, Multan (respondent No,2) dismissing the appeal of the petitioner against the aforementioned order of learned Rent Controller, have been called in question.
2. The petitioner was admittedly occupying the property in dispute as tenant under respondent No,3 who sought eviction of the petitioner from the said premises through eviction petition moved before the learned Rent Controller on the ground of bona fide need in good faith for his son. The ejectment petition was contested. The learned Rent Controller on the pleadings of the parties framed issues. The parties produced evidence in support of their respective pleas. After considering the evidence produced by the parties the learned Rent Controller through order dated 23-11-1988 accepted the ejectment petition. Feeling aggrieved, the petitioner challenged the said order by filing appeal before respondent No,2 which has also been dismissed through impugned order dated 20-6-1989.
3. The main burden of arguments presented in support of this writ petition by the learned counsel for the petitioner was that according to terms and conditions as contained in the two rent-notes produced by respondent No,3 in evidence as Ext. A/2 and A/3 respectively, the respondent No,3 could not seek eviction of the petitioner on any of the grounds mentioned in Section 13 of the West Pakistan, Urban Rent Restriction Ordinance, 1959.
4. In order to appreciate the arguments, it will be beneficial to reproduce the said condition in the two rent-notes which is similar in both of them for ready reference which is as follows:- {{ URDU TEXT}} ' This clause if read in conjunction with the other terms and conditions contained in the documents it is demonstrably clear that it relates to the time of payment of rent therefore, it can safely be held that it was a covenant that the eviction of the petitioner/tenant shall not he sought on the ground of default unless the petitioner failed to pay two months' rent continuously. As a matter of fact, the petitioner was given concession that he will not be evicted on the ground of default unless he failed to pay two months' rent under section 13(2) of the West Pakistan Urban Rent Restriction Ordinance, 1959. The petitioner could be adjudged a defaulter in case he failed to make payment of monthly rent within 15 days from the date on which it was settled to be paid which in this case was the 5th of each month as the rent was agreed to he paid in advance. I do not feel persuaded to accept the argument that this clause in the agreement could be construed to hold that respondent No,3 covenanted not to seek eviction of the petitioner on any of the grounds including the default in case the petitioner does not fail to make payment of two months' rent continuously therefore, the judgment reported as Muhammad Azizullah v. Abdul Ghaffar (1984 CLC 2837) on which reliance was placed does not advance the argument of learned counsel for the petitioner as in that case the agreement of tenancy was for a specified fixed term.
5. Faced with this situation, learned counsel for the petitioner tried to overcome it by arguing that there were circumstances which could furnish strong evidence to corroborate the plea that it was intended by the parties that the respondent No,3 could not seek eviction even on the ground of personal need in case there was no failure on the part of the petitioner to pay two months' rent continuously and one of such circumstances pointed out by the learned counsel for the petitioner was that a huge amount of Rs,40,000 was advanced to respondent No,3 at the time of induction of the petitioner in the premises as tenant. I am afraid, the submission is absolutely devoid of any substance. It has been stated in the rent-notes that an amount of Rs,40,000 was received by respondent No,3 as security to secure that without the written consent of the landlord the petitioner would not rent out the shop to any other person or transfer it to any other person on Tagri' in which event he would not be entitled to receive back the said amount. In view of- this express clause in the written agreement regarding the payment of Rs,40,000 it cannot be argued that the said amount in fact was paid as a consideration that respondent No,3 shall not seek eviction of the petitioner on any ground unless there was a default in payment of two months' rent continuously. It is firmly settled law that a party to a written agreement is debarred from producing any evidence to prove a fact contrary to the settled terms. Apart from this it was specifically averred in paragraph 1 of the ejectment petition that in addition to settled monthly rent the respondent No,3 had also received an amount of Rs,40,000 as security which was refundable at the time of delivery of possession of the shop to the landlord and it was also stated that the said amount shall be refunded when the petitioner would restore the possession of the shop. This para has been admitted as correct without any reservation, exception or any other explanation in corresponding para 1 of the written-statement. It was also otherwise not pleaded in the written-statement that there was any covenant or that the parties intended that no right shall vest in respondent No,3 to seek eviction of the petitioner in case there was no default for two months continuously in the payment of rent. Nothing was said in this respect even in the evidence of the petitioner when he appeared as his own witness in support of his case, so much so, even in the grounds of appeal before the learned lower appellate Court, this plea was not raised. In these circumstances the argument that parties in fact intended that the petitioner shall not be evicted on any ground unless there was default in payment of rent for two months continuously is wholly untenable.
6. It appears that it was only during the arguments before the learned lower appellate Court that this argument was raised as an afterthought. It has been considered by the learned lower appellate Court and it has been rightly held that the said clause in the rent-notes is relatable to ground of default in the payment of rent and could not be construed so as to hold that there was a covenant that eviction of the petitioner shall also not be sought on the grounds other than default in payment of rent unless there was non-payment of rent for two months continuously.
7. It would not be out of place to mention here that according to proviso of subsection 3(a) of section 13 of West Pakistan Urban Rent Restriction Ordinance, 1959, a landlord is debarred from seeking eviction of tenant on the ground of personal need only if the tenancy is for a specified period agreed upon between the landlord and the tenant unless the said period expires. It was not argued by the learned counsel for the petitioner that in this case there was any agreement between the parties that the tenancy would be for a specified period. Even otherwise, if the argument of learned counsel for the petitioner is accepted that the respondent No,3 was debarred from seeking eviction of the petitioner till such time he defaulted in payment of two months' rent continuously, even on the ground of personal need, the necessary legal consequence of such a construction would be that it is a lease in perpetuity. In such an event it would be certainly a lease for more than one year as such no right to that effect could be created unless it was registered as under section 17 of the Registration Act, such a document is compulsorily registrable and the consequence of non-registration is as provided in Section 49 of the Registration Act which provides that such an unregistered document could not create or extinguish any right. Learned counsel for respondent No,3 has rightly pointed out that such a document was given effect to as a lease for 11 months due to non-registration. In support of this argument he relied upon judgments reported as Muhammad Ishaq v. Erose Theatre and others PLD 1977 SC 109 and Sheikh Abdus Sattar v. Malik Muhammad Afzal, Additional District Judge, Faisalabad and 9 others PLD 1985 Lah.
181. In this view of the matter it is not a case of tenancy for a specified period as such the ejectment petition was maintainable on the ground of personal need.
8. Coming to the merits, it may be observed that the two Courts below have recorded concurrent findings of facts that the respondent No,3 succeeded in establishing the ground of personal need.
Learned counsel for the petitioner has taken me through the evidence produced by the parties. I have examined the findings with reference to the evidence present on the record and find that in arriving at the conclusion of facts, the two Courts below have neither misread nor misconstrued or kept out of consideration any material piece of evidence. The two Courts below on the basis of elaborate and careful appraisal of evidence have held that they were satisfied that the need of the respondent No,3 for personal use for his son was proved. In constitutional jurisdiction such a finding of facts which do not suffer from any jurisdictional defect cannot be substituted. No case has been made out for interference in the impugned ordeRs, For the foregoing reasons, the writ petition has no merits which is hereby dismissed with no order as to costs.
9. Learned counsel for the respondent No,3 does not have any objection if four months time is granted to the petitioner to vacate the shop in dispute. It is, therefore, ordered that the order of ejectment shall not be executed for four months from today.