SALEEM AKHTAR J.- The respondent filed an application for ejectment against the appellant in respect of the premises bearing No.2 on plot No.7 Road 19, Opposite Jamia Masjid, Aligarh Colony, Orangi Town, Karachi. It was alleged that the appellant is carrying on business of a restaurant from 1968. Initially the rent was Rs.350/- P.M. But it was raised to Rs.600/- P.M. In 1984. Since then there has been no change in the rate of rent. In December, 1968 the appellant had paid Rs.2000/- and again in 1978 he paid Rs.15,000/- to the respondent which according to the respondent are security amounts. The total amount of Rs.17,000/- was paid under an agreement between the parties. It was alleged that the appellant, has defaulted in payment of rent from May, 1968 and the premises is required for Respondent's personal use and occupation as well as for his son Khatibul Rahman for running business of grosery and general merchandise. The appellant filed his written statement and pleaded that Rs.17,000/- was paid as a good will under a tenancy agreement dated 24.1.1981 and not as a security as alleged by the respondent. It was denied that default has been committed by the appellant. The appellant had paid rent for the month of June, 1986 @ Rs.600/- P.M. But the respondent with mala fide intention issued receipt mentioning rate of rent as Rs.1000/- P.M. And obtained appellant's signature on the counter foil of both the receipts without disclosing the correct fact. When the appellant came to know about this fraud he protested and demanded issuance of fresh receipt at the correct rate but the respondent avoided and a legal notice was therefore served upon him. The appellant then remitted money order which was refused. It was denied that the premises is required for personal bona fide need. It was submitted that Khalilur Rahman is minor and unable to run any business. It was further alleged that the respondent is already running business since long on the same plot and has other business on other plots. It was pleaded that the appellant had paid good will of Rs.17,(XX)/- and he was assured that he would never be ejected. He was authorised to sublet or make additions or alteration in the premises which has been made accordingly. The learned Controller by the impugned order ejected the appellant on both the grounds.
When I had heard the arguments of Mr. Syed Ishtiaq Ali for the appellant the respondent and his advocate were not present. The judgment was reserved and in the mean time the learned counsel for the respondent has filed written argument which has been placed on record.
2. Mr. S. Ishtiaq Ali the learned counsel for the appellant has contended that as the respondent had accepted Rs.17000/- as good will he was debarred from ejecting the appellant on the ground of personal requirement. The learned counsel further contended that acceptance of good-will was prohibited under the Sindh Urban Rent Restriction Ordinance but there is no such prohibition under the Sindh Rented Premises Ordinance which according to him is applicable to the present case.
The parties had entered into an agreement on 24th January, 1978, clause 2 of which recites that a total sum of Rs.17000/- paid by the appellant to the respondent shall be treated as a "good-with" amount and the landlord shall not be bound refund the same to the tenant. The appellant as tenant was permitted to make such structure additions and alterations at his own cost and expense and he was further permitted to sublet the said premises to any third person and on information being given such subletter was to be accepted as tenant. This agreement was entered into between the parties before the promulgation of the Sindh Rented Premises Ordinance 1979 which was enforced on 21st November, 1979. Therefore, the agreement dated 24.1.1978 was entered into at a time when the Sindh Urban Rent Restriction Ordinance 1959 was in operation. Section 7 of the Sindh Urban Rent Restriction Ordinance prohibited charging of pugree or premium as a consideration for grant of, renewal or continuance of tenancy of any building or land. The agreement was thus void and not binding on the parties.
3. The learned counsel for the appellant has relied on Mohammad Hanif Vs. Mumtaz Ahmad PLD 1986 Kar.16 where ejectment case was Filed under the West Pakistan Urban rent Restriction Ordinance 1959 and question arose whether, a landlord who had accepted pugri could eject the tenant on ground of personal requirement. It was observed that:- "Pugri is prohibited by section 7 of the West Pakistan Urban Rent Restriction Ordinance, 1959, and if there is any agreement between the parties on that account then the relationship between the parties is different and is not same as contemplated under the provisions of the above said Ordinance and the landlord cannot claim relief which is available under the provisions of the above said Ordinance".
It was held that the landlord was not entitled to seek relief under THE provisions of West Pakistan Urban Rent Restriction Ordinance.
4. Pugri is accepted as premium mainly for inducting a person in the premises as tenant. In practice where pugri is charged the rent is kept at a lower amount than the normal rate. The landlord also permits subletting and transfer of tenancy but such transfer is subject to the consent of the landlord. The entire arrangement is for regulating the nature of relationship between the parties which is normally understood and accepted by them as landlord and tenant. Neither the owner agrees Mor intends to part with an iota of right of ownership. The right of subletting is with the consent of the landlord which is permissible under law. With respect I am unable to subscribe to the afore stated view of the referred judgment. As the agreement to charge pugri is void and hit by section 23 of the Contract Act the same is not binding and no right can be created on that basis, or any benefit can accrue to any party under it. From the facts stated in the referred judgment (1986 Kar.16) it is clear that the lease agreement was for an indefinite period and was not registered. The Controller had not exhibited it but in appeal it was considered. The landlord had denied charging pugri and the agreement did not have any reference to payment of pugri.
However, from the terms of agreement that the landlord will never eject the tenant who will have a right to sublet, it was inferred that 'pugri' was charged by the landlord. It is significant to note that the parties had not denied the relationship of landlord and tenant. The agreement being void was not enforceable but if the tenant pays rent and landlord accepts it the relationship is established by their conduct and subsequent actions. So far the agreement not to eject a tenant in any circumstances is concerned the same is in conflict with the statute and can not stand. The provisions of law permitting a landlord to eject a tenant on grounds specified in it, which not subject to any agreement, confer a statutory right and no one can contract out of it. Reference can be made to E.A. Evans Vs. Mohammad Ashraf PLD 1964 S.C. 536 and M.H, Wahabun Nisa Vs. Haji Abdul Sattar 1989 C.L.C.517. In Mohammad Yousuf Vs. District Judge 1987 S.C.M.R. 307 similar contention as raised in this appeal was repelled in the following manner;- "According to the lease agreement the shop has been It out to the tenant-petitioner for a fixed period of ten years with a right of re-entry reserved by the respondent-landlord, but it is not mentioned in the lease deed that the respondent-landlord had received Rs.11,000/- as pugree from the petitioner-tenant, although it is so stated by him in his statement before the Rent Controller (page 134 of the paper Book). However, that being mutual arrangement between the parties, would not debar the respondent-landlord from instituting eviction proceedings on the ground of bona i.e personal need".
5. Reference can also be made to Mohammad Ilyas Vs. Khursheed Begum 1989 CLC 506. Mst.
Fatima Bai Vs. Shaikh Mohammad Zaki & 6 others 1990 CLC 1064. All these judgments have taken a contrary view from the one expressed in Mohammad Hanins case (PLD 1989 Kar. 16). Sindh Rented Premises Ordinance does not prohibit pugri in the manner as provided under the West Pakistan Urban Rent Restriction Ordinance. So far rate of rent is concerned as held in Mrs. Zohra Begum's case PLD 1984 S.C. 38 it allows freedom of contract. However, such freedom is subject to fixation of fair rent by the Controller. The fact, however, remains that section 15 of the Sindh Rented Premises Ordinance permits a landlord to eject the tenant on the ground of default and personal bona i.e requirement. As no person can contract out of the statute and assert a superior right over the provision of law, any agreement contrary to it will be void. It is significant to note that section 15(2)
(vii) is not subject to the agreement of the parties. Therefore, no one can contract out of it and in a landlord for valuable consideration undertakes not to eject on the ground of personal bona i.e requirement the same would be void and hit by the provisions of section 23 of the Contract Act.
Therefore, under either of the statutes the landlord is not debarred from ejecting the tenant for personal bona i.e requirement even if he has illegally charged pugri. However, depending on the facts of each case charging of pugri may adversely reflect ^upon the bona i.e of the landlord as in Zohra Begum Vs. Pakistan Burmah Shell Ltd. PLD 1989 S.C.38.
6. The learned counsel then contended that personal requirement has not been proved. The respondent had applied for ejectment on THE ground of his need as well as the need of .His son.
Objection seems to have been taken that Khatibur Rahman is minor but no such proof has been produced. On the other had from the evidence it is sufficiently established that he is not a minor.
The second ground that the respondent is running a shop through his brother has not been established. The respondent has stated that he and his son are godless and will carry on business of grocery in the shop. In the facts and circumstances of the case, in my view the respondent has established his case.
7. The learned counsel contended that the default has not been established as the dispute was about the rate of rent and money was remitted on 28.8.1980 for Rs.2000/-. So far the dispute is concerned, the same has not been established, However, even if there was a dispute between the parties about the rate ! Of rent no valid and bona i.e reason has been shown not to have paid, deposited or remitted the rent as provided by law. The last rent was paid for April, 1986 and thereafter the remittance was made on 28.8.1986 which was not accepted by the respondent. Even if a grace period of 60 days is given there is a clear default for payment of rent for the month of May, 1986. Mr. Syed Ishtiaq Ali has contended that as the default would only be for one month and there is deposit of Rs.17,000/-the same could be adjusted towards the rept. The amount was paid under the agreement not for the purposes of adjustment but as a goodwill. As there was no agreement between the parties for adjustment of the rent in the amount of pugri the contention of the learned counsel has no force. The appeal is therefore, dismissed.
8. As the respondent has staled that he is agreeable to refund the pugri to the appellant in case he is evicted, the writ of ejectment shall be issued on respondent depositing Rs.17,000/- in Court which the appellant will be entitled to withdraw in case he vacates and hands over vacant possession to the respondent or he is ejected from the shops. Six months are allowed to the appellant to had over vacant possession of the disputed shop to the respondent.