' The plot to which the dispute relates is situated in Ghulam Hussain Kassim Quarters, Harris Road, Karachi. In 1955 the plot was leased out to the appellants by a registered lease deed by father and uncle of the respondent, who were then its joint owners for establishing a petrol pump thereon and to carry on business in petroleum products. On 13-12-1962 When the said lease was still subsisting the plot in question was gifted to the respondent by her father and uncle by an oral declaration dated 24-12-1962. The plot was once again leased out to the appellants by the father of the respondent, who was also her natural guardian at the time, by a registered instrument dated 28-9- 1971 on a monthly rent of Rs,1,800. The lease was valid for ten years and according to clause 3(d) of the lease agreement (Exh-6), the lease could be further extended for another ten years at the option of the appellants on payment of enhanced monthly rent of Rs,2,200 and after expiry of the said term, to a further period of ten years on the same terms and conditions except that the rent for such extended period was to be settled by mutual agreement of the parties.
2. As the period of tenancy was to expire on 31-3-1981, the appellants addressed a letter dated 24- 12-1980 to the respondent's father exercising their first renewal option for ten years in terms of the said lease agreement. A cheque for Rs,26,400 covering advance rent for one year was also sent to the respondent's father but the same was not accepted as the respondent's father requested for enhancement of rent. Thereafter correspondence was exchanged between the parties for some time when the cheque was finally encashed by the respondent's father. Thereafter, cheques offered for the years 1982-83 and 1983-84 were also accepted by the respondent's father but in 1984 the cheque sent by the appellants for the year 1984-85 was returned by the respondent's father with his lawyer's letter dated 14-4-1984 as the respondent had filed an application before the Third Rent Controller, Karachi (South) for eviction of the appellants from the demised plot.
According to the respondent, after the expiry of the term of the said lease deed, the tenancy had ceased to be valid in terms of section 6 of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as "the Ordinance") and therefore, the appellants had become liable to be ejected from the demised premises. The premises in question, according to the respondent, had also been leased out by the appellants without the consent of the respondent and they had also raised unauthorized construction by making addition of a cabin on the first floor with a staircase leading thereto which, according to the respondent, was in complete contravention of the terms of the tenancy. Lastly it was urged that upon attaining majority on 24-12-1976 the respondent required the premises for her own personal use.
3. The application was resisted by the appellants as, according to them, the lease deed had not expired on 31-3-1981 but had been renewed by the conduct of the respondent who had received rent from the appellants for three yeaRs, The appellants had also filed a suit for specific performance of the agreement dated 29-5-1971 seeking execution of a fresh lease deed in accordance with the terms of the said agreement. Section 6 of the Sindh Rented Premises Ordinance, according to the appellants, had also been repealed in the meanwhile. The appellants also disputed the respondent's claim that they had raised any unauthorized construction in violation of the terms of the agreement or that the premises had been sublet by them. According to them, M/s. Rehman Service Station who were in occupation of the premises were their local dealers who were only given a licence to sell their products at the disputed premises. It was also denied that the premises were needed in good faith by the respondent for her own personal use.
4. The parties thereafter adduced their respective evidence and upon such evidence, the learned Rent Controller found that the case of the respondent had been fully established and therefore, vide her order dated 13-1-1991, she directed the appellants to vacate the premises.
5. The first question that requires consideration is whether after expiry of the lease agreement dated 28-5-1971 the appellants could be ejected from the demised premises on such ground alone. Admittedly, the parties did not execute another written agreement in pursuance of the terms of the said agreement after its expiry on 31-3-1981. However, as has been pointed out earlier, the respondent's father continued to accept rent from the appellants till 1983-84. It has nevertheless been argued that the tenancy was terminated at least from the time when the respondent's father refused to accept rent from the appellants. Section 6 of the Ordinance although, has since been repealed by Sind Ordinance IV of 1984 but there can hardly be any controversy in regard to the fact that when the eviction application was filed on 7-4-1984 the said section was still in force. Section 6 of the Ordinance provided as under:- "6. 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:.
' Provided that nothing in this section shall affect any tenancy existing immediately before coming into force of this Ordinance."
' Clause (i) of subsection (2) of section 15 of the Ordinance, which was also repealed by Ordinance IV of 1984, further authorized the Rent Controller to make an order directing the tenant to put the landlord in possession of the demised premises if he was satisfied that-- "(i) the tenancy has ceased to be valid under, section 6."
' Clauses (c) and (e) of section 4 of the West Pakistan General Clauses Act provide; "4. Effect of repeal.--(1) Where this Act or any other West Pakistan Act repeals any enactment then, unless a different intention appears, the repeal, shall not affect any right, privilege, obligation or liability acquired accrued or incurred under any enactment so repealed; or affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture to punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the Repealing Act had not been passed."
' Since section 6 of the Ordinance was repealed alongwith clause (i) of subsection (2) of section 15 of the Ordinance during the pendency of the ejectment proceedings instituted by the respondent, sections 3 and 4 of Ordinance IV of 1984 which respectively repealed the said provisions cannot operate retroactively by virtue of clauses (c) and (e) of section 4 of the West Pakistan General Clauses Act, as not only pending proceedings have been saved thereby but all vested rights have been saved. However, the proviso to the section 6 of the Ordinance indicates that it cannot be invoked by the landlord in case of a tenancy existing immediately before coming into force of the Ordinance. There was, therefore, a clear intention to provide protection to tenancies which already existed at the time when the Ordinance came into force and not to give retrospective operation to section 6 of the Ordinance. In the present case, when the Ordinance came into force, the tenancy already was in existence by virtue of the said lease agreement dated 28-5-1971 and after its expiry on 31-3-1981, it continued to be governed under the terms of the Ordinance. As was observed by the Supreme Court in the case of MRs, Zarina Khawaja v. Agha Mahboob Shah (PLD 1988 SC 190), on termination of a tenancy agreement the relationship of the landlord and the tenant would continue to be determined and regulated in accordance with the terms of the general law and the terms of the tenancy agreement between the parties but subject to a condition that in case of repugnancy of either of the two elements to any of the provisions of the rent laws, the latter shall prevail.
Therefore, by no stretch of imagination it can be held that after the expiry of the written agreement between the parties the tenancy also terminated and thereafter a new tenancy came into existence. The same tenancy;, therefore, continued after expiry of the said lease agreement which was being governed either by the terms of the expired agreement or the statute, as observed by the Supreme Court. Consequently, the tenancy being an existing tenancy immediately before coming into force of the Ordinance, the provisions of section 6 of the Ordinance were not applicable in the present case, and hence they could not be invoked by the respondent. The findings of the learned Controller on the first issue, therefore, cannot be sustained.
6. The second ground upon which ejectment was sought was that the appellants without obtaining a written consent of the respondent had leased out the premises to M/s. Rehman Service Station in place of M/s. Sultan Autos. By clause 2(e) of the lease agreement, the appellants had agreed not sublet the premises or any part thereof without the previous consent in writing of the lessor.
According to section 15(2) (iii) (a) of the Ordinance, one of the grounds upon which eviction of a tenant can be sought is that, the tenant without the written consent of the landlord has handed over the possession of the premises to some other person. The case of the appellants in this regard, however, was that M/s. Rehman Service Station who were in occupation of the premises were neither their sub-lessees nor the premises had been subleased by the appellants to any person. The contention on the other hand was that M/s. Rehman Service Station were the appellants' local dealers who only had licence to sell the appellants' products in accordance with a pro forma agreement Exh. 0/14. This was further confirmed by the appellants' witness, S. Azharul Haq Hussaini in his affidavit-in-evidence. It may be pointed out that the mere fact that another person has been put into possession by the tenant may not constitute either breach of such covenant in the lease agreement or the terms of section 15(2) (iii) (a) of the Ordinance. No doubt, when he tenant admits that some other person was in possession of the demised premises, the onus would lie upon him to explain the circumstances under which the premises are being occupied by such person. Mr. A. I. Chundrigar, learned counsel for the respondent, has contended that since the actual agreement executed between the appellants and M/s. Rehman Autos was not produced by the appellants the pro forma agreement was hardly sufficient to prove the alleged dealership agreement between the parties as claimed by the appellants. However, in my opinion, the plea raised by the appellants is also supported by the evidence of their witness. There is nothing on record to indicate that the appellants were no more concerned with the business carried on the demised premises. Clause 4(b) of the said tenancy agreement further indicates that the appellants had been fully authorized to affix, place or display main boards, sign boards, advertisement boards etc. In relation to their business or that of their sub-tenants or licensees. The lease agreement, therefore, clearly contemplated that the appellants could run their business through their sub-tenants or licensees. This is further confirmed by clause 2(e) of the said agreement which, although, restricted the lessee's freedom to let out the premises or part thereof without the written consent of the lessor, but provided at the same time that such consent would not be withheld by the landlord in case of a respectable or a responsible lessee. Consequently, nothing can be spelt out from the evidence on record that M/s. Rehman Autos were the sub- tenants of the appellants and were doing their independent business on the premises.
Consequently, the findings of the learned Controller on the second issue also cannot be sustained.
7. It was next alleged by the respondent that the appellants had raised unauthorized construction by addition of a cabin on the first floor with a staircase leading thereto which was in contravention of the terms of the said registered lease agreement and thereby the appellants had impaired the material value and utility of the premises. In this regard, my attention was once again invited by Mr. Sarwana to the lease agreement, clause 4(a) whereof authorized the appellans to construct, fix or erect upon the demised premises office, trade fixtures and fittings, partitions, shelves, gas and electric fittings, underground petrol tank and petrol delivery pump and other appurtenances and buildings etc. The said clause further stipulated that at the expiration or determination of the tenancy, the appellants were bound to make good damage which might have been caused to the demised land. It is pertinent to point out that what had been let out to the appellants was an open plot of land. According to clause (iv) of section 15(2) of the Ordinance, a tenant would make himself liable for eviction from the demised premises if he "has committed such acts as are likely to impair the material value or utility of the premises". As is clear from the language of the said clause, unauthorized construction by the tenant by itself is not sufficient to make him liable for ejectment under the said clause without a finding being given by the learned Controller that such unauthorized construction is likely to impair the utility or value of the rented premises. Reference to clause 4(a) of the lease agreement not only indicates that the appellans were permitted to raise any construction necessary for running their business but the premises having been rented out as an open plot, the same could always be restored to its original condition at the expiration of the period of lease or determination of the tenancy. The, learned Controller has decided the issue in favour of the respondent without giving a specific finding that the construction raised by the appellants was unauthorized or the same was likely to impair the value and utility of the land in question. I am, therefore, unable to agree with the findings of the learned Controller on the third issue as well.
8. Lastly, it was urged on behalf of the respondent that the premises were required by her in good faith for her personal use. The respondent filed her own affidavit-in-evidence to support the said contention and that .Of her father, Ahmedali Hashwani. The respondent stated in her affidavit-in- evidence that after attaining majority on 24-12-1976 she had taken reins of the affairs in her own hands and that she needed the premises in question for building shops on the ground floor and residential house on he upper floor as she wanted to do business from the shops which had a very good potential commercial value since they were strategically situated on a busy main road in a thickly populated area of Kharadar where a number of people belonging to Ismaili and Gujrati communities resided and were doing thumping business. Her evidence was fully supported by that of her father. According to section 15(2) (vii) of the Ordinance, the landlord is only required to establish that the premises were required in good faith for his own occupation or use or occupation of his spouse or any of his children. The expression 'good faith' has been defined in clause (27) of section 2 of the West Pakistan General Clauses Act, 1956 to mean as follows:-- "A thing shall be deemed to be done in 'good faith' where it is in fact done honestly, whether it is done negligently or not."
So far as the case of the respondent in respect of her personal requirement is concerned, her bona fides have prima facie been established and nothing can be spelt out from the evidence adduced by the other side, which can militate against her bona fides. The question as to the proof required by the landlord under section 15(2)(vii) of the Ordinance to establish his "good faith" or bona fides was considered by the Supreme Court in the case of Mst. Saira Bai v. Syed Anisur Rahman (1989 SCMR 1366) and it was observed by Naimuddin, J. Who delivered the judgment for the Supreme Court: "Regarding the non-mentioning the nature of the business in application it may be observed that an applicant has to state in his application, the material facts i,e, facts which constitute cause of action. In a case of present nature the applicant has to state those facts which prima facie show that the requirement is according to law, and is made in good faith. It is not essential as it is not part of the cause of action to state the nature of business which the applicant intends to carry on."
' It was further held in this case that a demand of higher rent by the landlord by itself does not cast any doubts about the personal bona fide requirement, if the factum of bona fide requirement has been independently proved. Reference was made in this case to the case of Badruddin Hasan Farooqui v. Manghi Industrial Home (PLD 1976 Karachi 620). However, the contention of Mr. Sarwana has been that the father of the respondent had executed a registered lease agreement with the appellants permitting them to hold the demised premises for a term of ten years which was further renewable for two similar terms of ten years each at the option of the appellants. Such option was in fact exercised by the appellants at the expiration of the term of the lease agreement dated 28- 5-1971. No doubt, a fresh agreement, as contemplated by the said lease agreement, was not executed by the respondent but the tenancy was nevertheless renewed for three years by acceptance of rent from the appellants for the demised land and the contract having been thus renewed by the conduct of the respondent's father, the respondent was estopped from seeking ejectment of the appellants on the ground of personal use. Reliance was placed by the learned counsel upon the judgment of the Supreme Court in MRs, Zehra Begum v. M/s. Pakistan Burmah Shell Ltd. (PLD 1984 SC 38). This case was relied upon by a learned Single Judge of this Court in another case, namely, Pakistan Burmah Shell Ltd. v. Khalil Ahmed (1988 MLD 210). Support was also sought by Mr. Sarwana from the case of MRs, Zarina Khawaja v. Agha Mahboob Shah reference to which has earlier been made in this judgment, although in a different context. In the first case cited by Mr. Sarwana, leave to appeal was granted by the Supreme Court to examine the question: whether the provisions of section 15(2)(vii) of the Sindh Rented Premises Ordinance read with section 3(1) of the said Ordinance could override the terms of the lease deed to enable the landlord to obtain possession of the premises on the ground of personal use. In this case, a bungalow built on the plot in question was demolished and the plot was leased out by the appellant to the respondent-company for establishing at its own cost and investment a petrol pump and service station. The lease was initially for a period of ten years with two options made available to the lessee to get it renewed. The lease deed was registered and as one of the conditions of the lease the lessor had undertaken not to evict or interrupt the enjoyment of the lessee if he continued paying rent reserved for the premises and observed the other covenants. After the first renewal had taken place and the lease agreement was still in force, the appellant instituted ejectment proceedings under section 15(2)(vii) of the Rented Premises Ordinance on the ground of personal need. The application was contested and when the matter ultimately reached the Supreme Court, it was held that:- " In this view of the matter if at the time of entering into lease agreement in 1965 the landlord knew that he was bartering away his personal need under the law then in force for a period of thirty years, he cannot under the statutory provision made in the Ordinance turn back to repudiate the term of the agreement. In the first place the Ordinance keeps alive the contract, lends it continued validity and force and professes to protect as much the right of the tenant as that of the landlord, referable always to a valid subsisting contract. 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.
' The bona fide requirement of the premises by the landlord for 'his own occupation or use or for the occupation or use of his spouse or any of his children' is, to begin with, a need personal to him. He has only to place certain facts before the Controller to make the objective assessment, and review in appeal, of his need and good faith possible. When an owner vacates the only house possessed by him, gets it demolished, lets out the plot for commercial exploitation on best market rent on a long lease giving up his right to recover possession if the rent was paid and the covenants observed he cannot on the ground of same need then existing or one which could then be visualized get the tenant evicted. It would not be a requirement justifying eviction. It would not be in good faith. It would be in repudiation of contract."
' In the case reported as Pakistan Burmah Shell Ltd. v. Khalil Ahmad which was decided by my learned brother Haider Ali Pirzada, J., the respondents had leased out the premises in question to the appellants for a period of ten years and according to the terms of the lease agreement, the lessee had an option to renew the lease for another period of ten years on the same terms and conditions subject to a condition that the rent was to be decided mutually by the parties. However, before the expiry of the said term the respondents sought to evict the tenant by filing an application under section 15 of the Rented Premises Ordinance before the Rent Controller but on an appeal being filed by the tenant, the order passed by the Rent Controller was reversed. It was held in this case that the eviction of the tenant can only be possible on expiry of the period mentioned in the registered lease deed and so long as the contractual period of tenancy was subsisting the landlord could not avail himself of the grounds of eviction enumerated in section 15 of the Rented Premises Ordinance unless tenancy was duly determined either by notice to quit or by efflux of time or under any of the other clauses of section 111 of Transfer of Property Act. However, Zehra Begum's case was not relied upon by the Supreme Court in Habib Bank Limited v. Dr. Munawar All Siddiqui (1991 SCMR 1185) as the facts of the case were found to be distinguishable. There was no registered lease deed in this case and the lease agreement between the parties failed to specify the period for which the lease could be renewed, except for the first period of renewal which was to be valid for four years; otherwise it purported to create a lease in perpetuity. Another factor which distinguished the case was that when the lease was executed, the West Pakistan Urban Rent Restriction Ordinance was in force, section 13 whereof had expressly provided that in case the tenancy was for a specified period, the landlord could not apply under the said section until the expiry of such period.
9. It is pertinent to point out that in the case of Zehra Begum or Khalil Ahmed, eviction of the tenant was sought by the landlord when a registered lease deed executed by the parties was still subsisting. In Zehra Begum's case the tenant had already exercised its second option and during the subsistence of a registered agreement the provisions of section 15(2)(vii) of the Rented Premises Ordinance were invoked by he landlord when according to the terms of lease an undertaking had been given not to eject the tenant so long as it complied with the covenants.
Similarly in the case decided by my learned brother, Haider All Pirzada, J., eviction application was filed by the landlord during the subsistence of the lease agreement. The facts of the instant case are, however, distinguishable inasmuch as that after the agreement dated 28-5-1971 had expired no other written agreement had been executed either by the respondent or her father. No doubt, rent was ultimately accepted from the appellants by the father of the respondent after expiry of the term of the lease agreement, which further extended the tenancy, but again when the eviction application was filed by the respondent before the Rent Controller, rent for the year 1984-85 was not accepted. No doubt, as has been pointed out earlier, a suit for specific performance of the agreement dated 28-5-1971 had been filed, nevertheless admittedly no written agreement was executed by the parties after expiry of the earlier agreement. Admittedly, the respondent was a minor at the time of execution of the said agreement, which had been executed on her behalf by her father as her natural guardian. From the correspondence which was exchanged between the appellants and the respondent's father and was brought on record of the Rent Controller, nothing can be spelt out to indicate that the respondent after attaining majority had shown any desire to continue the lease after expiry of the said agreement even on enhanced rent or that she had expressly authorised her father to extend the lease. Although, a minor's guardian is Competent to enter into a contract on behalf of the minor but such contracts derive their validity from the doctrine of legal necessity or benefit. However, in case of lease granted by a minor's guardian, unless the contract is approved or ratified by the minor on his attaining majority, it is questionable if the minor can be compelled to perform his obligations under the contract which was entered on his behalf . by his guardian. Reference in this regard may be made to the case of Tikait Umed Narain Singh and another v. Equitable Coal Co. Ltd. And others (AIR 1942 PC 1). In this case, while a person was a minor, his guardians had entered into an arrangement with a company under which the company had entered into possession of the minor's lands. This transaction was evidenced by two registered documents, an Ekrarnama executed by the company, and an Amalnama executed by the guardians. On attaining majority the minor executed a Patta of the lands in question to the company. By it he stated his title to the lands in question, the giving of them during his minority by his guardians under the Amalnama, the occupation of them by the company eversince, and that he had attained majority and was himself managing the estate. He also approved the grant of the Amalnama by his guardians. It was held by the Privy Council that rights and liabilities of the parties were governed by the Patta and the corresponding Kabuliyat alone and not by all the terms of the Amalnama executed by his guardians, except such terms as were expressly or by necessary implication varied or excluded from the Patta. It was further held that the confirmation by the minor of the arrangements made by his guardians merely recorded his approval of their action and he was free on attaining majority to strike his own bargain with the company and that it was the Patta and the Kabuliyat alone which recorded the bargain between the parties and governed their respective rights and liabilities. Although this case was not cited by the learned counsel for the respondent during his arguments, but the case clearly supports his contention that the respondent being a minor at the time of execution of the lease agreement was not bound by its terms as the same had been executed by her guardian. Even the subsequent conduct of her guardian by accepting Tent from the appellants for three consecutive years upon expiry of the lease agreement cannot bind the respondent, notwithstanding the fact that during such period she did not repudiate the tenancy agreement. In my opinion, the fact that the lease agreement dated 28-5- 1971 was executed by her guardian and that after its expiry no other written agreement was executed between the parties, and that at no stage the respondent gave her consent or approval to the said agreement after she attained majority, clearly distinguish the present case from the two cases cited by Mr. Sarwana. There was also no subsisting registered lease agreement between the parties as in case of Zehra Begum or Khalil Ahmed. Reference to the case of MRs, Zarina Khawaja under the circumstances, in my opinion, is also misconceived. Consequently, there was no insurmountable obstacle in the way of the respondent to seek ejectment of the appellants from the demised premises.
10. Now, if there is no clog placed by the law on the respondent right to seek eviction of the appellants from the demised premises, the "eke of the respondent for personal requirement has been fully established, as pointed out earlier. The application filed by the respondent discloses cause of action and her bona fides and good faith. Although the learned Controller has observed in the end that issue No,4 (which related to respondent's personal requirement) has not been proved but, as has been pointed out by Mr. Chundrigar, it is an obvious error, as what the learned Controller meant was that the plea of mala fides raised by the other side had not been proved. This is in consonance with the findings otherwise arrived at by the learned Controller while dealing with the said issue. However, even assuming that issue No,4 was decided by the learned Controller against the respondent, now, while defending the impugned order the respondent, notwithstanding the fact that no cross-objections have been filed by her, can still support all the grounds upon which ejectment of the appellants was sought before the learned Controller. There is, therefore, no force in this appeal as the impugned order can be maintained at least on the ground of personal requirement.
11. In the result, this appeal is dismissed. The parties are left to bear their own costs in view of the questions raised.