AJMAL MIAN, J: --The petitioner seeks leave to appeal against the judgment dated 12-11-1989, passed by a learned Single Judge of the High Court of Sindh in First Rent Appeal No.347/1988, maintaining the order dated 5-3-1988, passed by the learned IVth Senior Civil Judge and Rent Controller, Karachi (West), in Rent Case No.606/1987, granting ejectment order on the ground of personal requirement.
2. The facts to be noted are that the building, bearing No.1/29/V-B, situated in Paposhnager, Nazimabad, Karachi (hereinafter referred to as the tenement), comprises of ground floor and upper floor, was let out by the respondent's predecessor-in-interest his father Nazar Ali Siddiqui to the defunct --M/s. Standard Bank for operating the lockers facility on the ground floor and for using the upper floor for residential purpose of its one of the officers. Upon the merger of the above defunct-bank with the petitioner, the latter became the tenant. It appears that after the tenement was gifted by the respondent's father to him, an agreement to lease dated 1-4-1980 between the respondent and the petitioner was entered into for a period of 2 years with the option of renewal for a further period of 4 years and thereafter to further renewal of the same from time to time after the expiry of such renewed period (hereinafter referred to as the lease agreement). The respondent filed aforesaid Rent Case on the ground of his personal requirement. The case was resisted by the petitioner. However, the learned Rent Controller by his aforesaid order dated 5-3-1988, granted the order of ejectment. The petitioner being aggrieved by the above order filed afroesaid First Rent Appeal, which was dismissed by a learned Single Judge of the High Court of Sindh. The petitioner has filed the present petition.
2. Mr. Iqbal Kazi, learned ASC for the petitioner has made two-fold submission, namely, (1) on merits and (ii) on a legal point.
On merits his submission was that the concurrent finding of the two Courts on the question of personal requirement is not sustainable as admittedly the respondent has been residing with his mother and has no family of his own. The learned Rent Controller as well as the High Court have dilated upon the above aspect. Suffice to observe that it has been proved that there are 8 members of the family, who are all grown up and who are residing with the mother. It has also been proved that at the time of cross-examination of the respondent, he was already 29 years of age and, therefore, his desire to get married and to have a residential accommodation on the first floor of the tenement and to have his clinic on the ground floor seems to be reasonable. The concurrent finding of the two Courts on the above question does not call for interference by this Court.
3. Adverting to the legal submission of Mr. Iqbal Kazi, learned ASC for the petitioner, it may be observed that his submission is that under the terms of the lease agreement the respondent had bartered away his privilege/right to obtain vacant possession of the tenement on the ground of personal requirement. In this regard reliance has been placed by him on the case of Mrs. Zehra Begum v. Messrs Pakistan Burmah-Shell Ltd. Reported in PLD 1984 SC 38 and the case of Mrs. Zarina Khawaja v. Agha Mahboob Shah reported in PLD 1988 SC 190.
Before dilating upon the above legal submission, we may point out that there is no reference to the above legal submission either in the order of the learned Rent Controller or of the judgment of the High Court. However, the above point was taken specifically in the grounds of the above first appeal. This was not so in the written statement filed by the petitioner to the Rent Case though reference to the renewal clause of the agreement to lease was made and it was averred that the petitioner was entitled to get the lease renewed from time to time as the option of renewal of lease lies with them and the question of expiry of the said lease deed did not arise. It is not clear, whether the above legal point was pressed before the two Courts below as there was no issue framed on the question of maintainability of the Rent Case.
Be that as it may, Mr. Iqbal Kazi in furtherance of his above submission has referred to clauses, 3, 3(i) and 3(g), the relevant portions of which read as follows:--
3. PERIOD: The lease shall be initially for a period of two years commencing from 1-4-1980. On expiry of the said initial period the lease shall not determine by efflux of time, but the Bank shall have the option, without being bound to do so, to renew the same for a further period of four (4) years and thereafter to further renew the same from time to time after the expiry of such renewed period or periods.
3 (i) EJECTMENT: The owner hereby expressly waives all statutory and other rights of ejectment of the Bank from the demised premises and it is hereby expressly agreed that the Owner will be entitled to eject the Bank only if:
(i) rent for two consecutive months has become due and remain unpaid despite a notice demanding such payment. Such notice shall be served on the Bank by registered post acknowledgment due both at the demised premises and at the Head Office of the Bank demanding payment within one month from the delivery thereof; or (ii) The Bank has sublet the demised premises in contravention of this Agreement.
3(j) RENEWAL After expiry of the initial period of Lease the Owner shall renew the same on the same terms and conditions for such period or periods as may be required by the Bank in the exercise of its option of renewal as provided hereinabove."
4. On the basis of above clauses, it was vehemently urged by My. Iqbal Kazi that factually the petitioner was a lessee in perpetuity and that the respondent could eject the petitioner only on the two grounds, i.e. Default in payment of two consecutive months' rent despite of a notice and.
Secondly, subletting. According to him the effect of the above-quoted portions of clauses 3, 3(i) and 3(j) as to the period of renewal is that the petitioner is entitled to get the renewal from time to time for all times to come even without making any formal request.
It may be pertinent to briefly refer to the case of Mrs. Zehra Begum as the above case deals with the question, whether a landlord can seek ejectment on the ground of personal requirement under section 15(2) (viii) of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance) if the lease is for a specific period with the option to have further renewal. In the above case the facts were that the appellant, who was the owner of a plot with the bungalow thereon, after demolishing the bungalow leased out the plot to the respondent company for installing a petrol pump, under a registered lease deed on 1-5-1965 for initial period of 10 years with two options of renewal of 10 years each. Under the above registered deed, the appellant inter alia had agreed not to evict or interrupt the enjoyment of the lessee if the lessee continued paying rent reserved and observed the covenants. While the first renewal period was still in operation, the appellant served a notice on 8-2-1981 under section 15(2) (viii) of the Ordinance for ejectment on the ground of personal requirement. After that a rent application was filed, which was resisted by the respondent-company and inter alia it was pleaded that the appellant was precluded from ejecting respondent from the premises unless the appellant violated the terms of the agreement.
The Rent Controller dismissed the same on two grounds, firstly, that it was premature as the appellant could not invoke the ground of personal need so long as the lease deed remained effective and secondly, that there was an arbitration clause, though on merits he was of the view that the appellant was able to prove her personal requirement. The appellant filed a First Rent Appeal in the High Court of Sindh, which was also dismissed, with the findings that the appellant was bound by the lease deed and that her personal requirement was not proved. Thereupon, a petition for leave was filed in this Court by the appellant. The leave was granted on the following two questions:-- "(i) Whether the provisions of section 15(2) (viii) of the Sindh Rented Premises Ordinance, 1979 read with section 3(1) of the said Ordinance would not override the terms of the lease deed and enable the landlord to obtain possession of the premises if she really required it for her own use and occupation?
(ii) Whether the finding given by the Rent Controller that the petitioner required the premises in good faith for her spouse has been upset by the High Court on extraneous and irrelevant considerations?
After reviewing the case-law and comparing the provisions vis-a-vis the late West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as the late Ordinance) with the provisions of the Ordinance in respect of personal requirement, the following conclusion, was recorded:-- ..... In the second place even if there was such a right available under the law (for arguments sake but not as a fact) it stood waived because it is not a part of public policy, but of a personal privilege which the landlord could forego for a valuable consideration."
Whereas in the above case of Mrs. Zarina Khawaja, this Court has held that the terms of the expired tenancy agreement will continue to apply except which are repugnant to the Rent Laws or general laws and that the general laws which are not inconsistent with the Rent Laws continued to apply.
5. We may point out that the facts of the above case of Mrs. Zehra Begum are distinguishable inasmuch as in the said case the lease was executed by the lessor at the time when the provisions of the late Ordinance were in force and proviso (1) to sub-clause (ii) of clause (a) of subsection (1) of section 13 of it expressly provided that if the tenancy was for a specific period, the landlord shall not be entitled to apply under the above section before the expiry of such period, secondly, there was a registered lease deed containing clear clause as to the renewal of the lease twice for 10 years each. Thirdly, that lessee was to invest considerable amount in the form of installing a petrol pump on the assumption that it would enjoy lease for a period of 30 years in all. Whereas in the instant case there is only the lease agreement. There is no registered lease deed and the above- quoted clause of the lease agreement does not specify any period of renewal except of first renewal for a period of 4 years but it speaks of renewal from time to time, in other words it purports in effect to create a lease in perpetuity.
6. At this juncture, it may be pertinent to deal with the question, whether a lease in perpetuity can be created by a lease agreement, and if not, what rights the petitioner acquired under the lease agreement in issue. In this behalf, it may be pertinent to refer to section 107 of the Transfer of Property Act, 1882, and sections 17(d) and 49 of the Registration Act. Above section 107 of the former Act inter alia provides that a lease of immovable property from year to year or for any term exceeding one year or reserving a yearly rent can only be made by a registered instrument, where as section 17(d) of the latter Act requires compulsory registration of a lease of the nature covered by section 107 of the former Act. Section 49 of the latter Act provides for effect of non-registration of documents required to be registered as follows:-- "No document required to be registered under this Act or under any earlier law providing for or relating to registration of documents shall-
(a) operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, to or in immovable property, or
(b) confer any power to adopt, unless it has been registered."
It may he advantageous at this stage to refer to the case of Darbarilal Mudi and others :v.
Raneegano Coal Association Ltd., reported in AIR 1944 Patna 30, in which a Division Bench of the Patna High Court held that a permanent lease, which has not been created by a registered instrument, is void under the provisions of section 107 and the tenancy is under section 106 deemed to be a lease from month to month terminable either on the part of the lessor or the lessee by 15 days notice. We are, therefore, of the view that the lease agreement, the copy of which has been filed with the above petition for leave, is not a legal document of the nature, on the basis of which the petitioner could have acquired lease in perpetuity. We may also point out that a covenant for perpetual renewal being a serious derogation from the right of the landlord is to be proved strictly.
There must be unequivocal and unambiguous ground for holding that a lease containing such a covenant cannot otherwise be held to exist. In this regard reference may be made to the case of Maharaja Srish Chandra Nandi v. Doa Muhammad Byapart and others, reported in AIR 1939 Cal. 77, wherein a learned Single Judge of the Calcutta High Court inter alia observed that leaning of the Court is always against perpetual renewal and that in order to establish that there was covenant of perpetual renewal, the intention must be unequivocally expressed. The case of Khayali v. Husain Bakhsh and another, reported in 1886 ILR Allahabad Vol. VIII, page 198 is also pertinent to the point in issue. The facts were that a Kabuliyat dated 6th May, 1880 executed by the lessee of a house in favour of the lessor for letting out the said house at an annual rent of Rs.3 for a term as one year, contained following clause"-- "----I (the lessee) do declare that I shall continue to pay the annual rent every year, and that if I should fail to pay the rent in any year, the owners of the house shall be at liberty to recover the rent through the Court."
In a suit for possession filed by the lessor against the lessee, it was pleaded by the latter that the lessor was not entitled to eject him so long as he paid the annual rent of Rs.3. It was held by a Division Bench of the Allahabad High Court that the (case was for one year only and, therefore, it was a lease at will after the expiry of one year.
7. Even if we were to overlook the above legal defect of the lease agreement, further question arises, whether such a renewal clause which purports to create a lease in perpetuity will prevail over the provisions of the Ordinance. We may again point out that the late Ordinance contained the aforesaid proviso (1) to sub-clause (ii) of clause (a) of subsection (1) of section 13 expressly providing that if the tenancy was for a specified period, the landlord shall not be entitled to apply under the above provision before the expiry of the specified period but there is no parallel provision in the Ordinance. Subsection (1) of section 3 of the Ordinance provides that- "(1) Notwithstanding anything contained in any law for the time being in force, all premises other than those owned or requisitioned under any law, by or on behalf of the Federal Government or Provincial Government, situated within an urban area, shall be subject to the provisions of this Ordinance."
Whereas subsection (2) of section 15 of the Ordinance entitles a landlord to apply for ejectment inter alia on the ground that he requires premises in good faith for his own occupation or use or for the occupation or use of his spouse or any of children. A renewal clause in a lease agreement or a lease deed purporting to create a lease in perpetuity without specifying a period and thereby depriving the landlord from filing an ejectment case on the ground of personal requirement for all times may not be enforceable as being repugnant to the scheme of the Ordinance. However, we may clarify that the ratio of the above judgment of this Court in the case of Mst. Zehra Begum still holds ground and that the same is distinguishable for the reasons recorded hereinabove in para. (5).
Even otherwise grant of leave to appeal is a matter of discretion and can be refused if the dictates of justice so demand. In the instant case as pointed out here in above that the above legal submission does not find place in any of the two impugned judgments of the two Courts below. The bona fide requirement of the respondent stands proved in view of the concurrent finding of the two competent forums, it will not be just and proper to grant leave in this case particularly when the above legal submission is founded on the lease agreement, of which legality and enforceability is questionable for the reasons recorded hereinabove Leave is, therefore, refused. The petition is dismissed.