' AJMAL MIAN, J.---This is an appeal with the leave of this Court against the concurrent judgments dated 30-4-1989 and 22-9-1992 of the learned IIIrd Senior Civil Judge/Rent Controller (Central), Karachi, and a learned Single Judge of the High Court of Sindh passed in Rent Case No, 1376 of 1987 and F.R.A. No, 473 of 1989, respectively, dismissing the appellant's above rent case filed for ejectment on the ground of his personal requirement for the reason that the lease agreement contained a clause for renewal for a further period of five years and thereafter for further renewal from time to time. Reliance was placed by learned Judge in Chambers on the judgment of this Court in the case of Mrs. Zehra Begum v. M/s Paldstan Burmah Shell Ltd. (PLD 1984 SC 38).
Thereupon, the appellant had, filed a petition for leave to appeal. Leave to appeal was granted to consider the question, whether the ratio in the case of Mrs. Zehra Begum (supra) has been rightly applied to the present case or whether the ratio of the case of M/s. Habib Bank Ltd. v. Dr. Munawar Ali Siddiqui 1991 SCM R 1185 was applicable.
2. The brief facts are that the appellant who is the owner of a building, situated on a plot bearing No, R. 694/15, Federal B. Area, Karachi, hereinafter referred to be as the building, inducted the respondent as the tenant of the ground floor of the building, hereinafter referred to as the suit premises in May, 1971 under an unregistered tenancy agreement for a period of five years. It appears that the last tenancy agreement, hereinafter referred to as the tenancy agreement between the parties was executed on 1-8-1981 w,e,f. 19-5-1981 containing inter alia clauses 3, 8 and 9, which reads as under: "(3) Period.---The lease shall be initially for a period of 5 years commencing from 19th May, 1881. 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 five years and thereafter to further renew the same from time to time after the expiry of such renewed period or periods. The renewal of lease shall be on the terms, and conditions mutually agreed upon between the parties.
(8) 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 object the bank only if 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 acknowledgement due both at the demised premises and at the Head Office of the Bank, demanding payment, within one month from the delivery thereof; of ' The bank has sublet the demised premises in contravention of this agreement.
(9) Renewal.---After expiry of the initial period of Lease the owner shall renew the same on the terms and conditions mutually agreed upon between the parties for such period or periods as may be required by the bank in the exercise of its option of renewal as provided herein above."
It appears that before the expiry of the above five years period mentioned in the above-noted clause 3 the respondent requested for the renewal of the tenancy agreement. However, it appears that the appellant did not respond to the above request and consequently there was no mutual agreement as to the terms and conditions of the tenancy agreement, on which it was to be renewed in terms of above-quoted clauses 3 and 9. It further seems that upon expiry of five years period on 18-5-1986, the appellant stopped accepting rent from the respondent, with the result that the respondent filed a miscellaneous rent application for depositing rent with the Rent Controller, and started depositing rent therein.
3. The appellant filed Rent Case No, 1376/87 on or about 23-12-1987 against the respondent for the ejectment on the ground of his personal requirement, by averring inter alia as follows in paras. 5, 6 and 7 of the memo of the rent case:- "5. That the applicant requires the demised premises for bona fide personal need in good faith for self and for his family consisting of 13 members (i,e. Five sons, four daughters, wife, self, aged father and one younger brother) as under:-
(1) Muhammad Rafique self 55 years.
(2) Maqsooda Begum wife 51 years.
(3) Muhammad Atique Siddiqui son 30 years.
(4) Muhammad laved Siddiqui son 24 years.
(5) Muhammad Junaid Siddiqui son 19 years.
(6) Muhammad Atif Siddiqui son 15 years.
(7) Muhammad Saqib Siddiqui son 13 years.
(8) Atiya Rafique Siddiqui daughter 26 years.
(9) Safiya Rafique Siddiqui daughter 25 years.
(10) Rafiqa Siddiqui daughter 23 years.
(11) Shazia Rafique Siddiqui daughter 17 years.
(12) Barkat Ali Sidiqui father 80 years.
(13) Muhammad Hafiz Siddiqui brother 50 years.
' As the children of the applicants are grown up and are of marriageable ages and their marriages had not been solemnalized and upheld on account of lack of accommodation.
6. That the applicant is belonging to the respectable family, residing at present in his small house at Liaquatabad built on 86 sq. Yards, which is not sufficient for the need of the applicant's family and the applicant requires extra accommodation for his family.
7. That three sons are graduate while fourth is in Matric and Fifth one is in Eight Class, whereas my one daughter Atiya Rafique Siddiqui is Double Graduate, and other daughter Rafiqa Siddiqui is B.Sc.
And third Sofia Rafique is Matric and the fourth Shazia Rafiq Siddiqui is the student of Inter Science and all the children of the applicant are highly educated and sons and daughters are unmarried."
4. The respondent resisted above rent case inasmuch as it filed a written statement, in which besides raising a preliminary objection as to the maintainability of the above rent case on the ground that no cause of action accrued to the appellant, it was pleaded that the respondent was the tenant of the suit premises since 18-5-1971 and that the original rent was Rs,392.85 per month, which was increased to Rs, 1900 per month gradually upon the appellant's demands.
' The respondent also reproduced above-quoted clause 8 of the tenancy agreement in order to demonstrate that the appellant had expressly waived all his statutory and other rights of ejectment of the respondent from the denised premises and that ejectment could be sought if there was default in paymeit of rent of consecutive two months' despite service of notice and on the grouni of subletting.
' As regards above quoted paras. 5, 6 and 7 of the memo. Of rent case the following reply was made in paras. 6 and 7 of the written statement, which read as follows: "6. That since the opponent has no knowledge about the family members of the applicant the contents of paras. 5 and 6 are not admitted. The applicant is put to strict proof of the family members. It is further submitted that the applicant has his own double-storeyed House No, 15/7, B-1 Area, Liaquatabad, which is in his own occupation and is sufficient for him and for his family. Some of the family members were adult at the time of entering into the said lease agreement wherein he waived all his rights for ejectment except on two grounds mentioned in the agreement.
7. With regard to para. 7 of the application, it is again submitted that the opponent has no knowledge about the family members mentioned in the application and as such the contents thereof are not admitted and the applicant is put to strict proof thereof'.
5. The learned Rent Controller on the basis of the pleadings of the parties framed the following two issues:-
(1) Whether the applicant requires the premises in good faith as alleged?
(2) What should be the order?
' After recording evidence and hearing the parties, the learned Rent Controller by his judgment dated 30-4-1989 dismissed the above rent case inter alia on the ground that under the tenancy agreement, the appellant agreed to grant initial lease of five years with the condition that the same shall not be determinable by efflux of time but the bank shall have the option without being obliged to do so to get renewal of the same for a further period of five years and thereafter to further renewal from time to time after the expiry of such renewed period or periods. Reliance was placed by him on the judgment of this Court in the case of Mst. Zehra Begum (supra). Against the above judgment, the apart filed the above F.R.A. Which was dismissed by the learned Judge in Chanibers through the judgment under appeal for the following reasons:-- "From the facts of the present case mentioned above, I find that the decision of the Honourable Supreme Court of Pakistan taken in the case of Mrs. Zehra Begum v. Messrs Pakistan Burmah Shell Limited published in PLD 1984 SC 38 is applicable and nothing has been pointed out by the Advocate for the appellant to take a different view of this case from the decision arrived at by the Rent Controller. For such reasons I find no merit in this appeal which is dismissed."
' After that the appellant filed a petition for leave to appeal, which was granted to consider the above question.
(5. In support of the above appeal Mr. Khalid M. Ishaque, learned counsel for the appellant has vehemently urged that the judgment of this Court in the case of M/s. Habib Bank Ltd. v. Dr. Munawar Ali Siddiqui (supra) was on all fours applicable as the tenancy agreement executed on 1- 8-1983 purported to create a lease for five years with a covenant to renew the same for a further period of five years and thereafter from time to time without getting it registered. Hence, the same could not have been relied upon by the two Courts below and that the relationship between the appellant and the respondent was statutory under the provisions of the Sindh Rented Premises Ordinance, 1:979, hereinafter referred to as the Ordinance.
' On the other hand Mr. A.R. Akhtar, learned counsel for the respondent has vehemently contended that even though the tenancy agreement was not registered, the respondent was entitled to protect its tenancy against the ejectment on the basis of section 53-A of the Transfer of Property Act of 1882, (hereinafter referred as the Act). His further submission was that the respondent could even file a suit for specific performance under section 27-A of the Specific Relief Act against the appellant for specific performance of the tenancy agreement.
7. In our view the basic question which requires consideration is what rights in favour of the respondent were created by the execution of the tenancy agreement by the appellant. In this regard, it may be pertinent to mention that in the case of Habib Bank Ltd. v. Munawar Ali Siddiqui (supra) more or less identical provisions of an unregistered tenancy agreement were the subject- matter with the variation that the initial period of the lease was two years with the convenant to renew the same for a further period of four years and thereafter to further renew the same from time to time after the expiry of such renewed period or periods. The landlord had also waived his all statutory and other rights of ejecting against the bank.
' In the above case also reliance was placed on the judgment of this Court in the case of Mrs. Zehra Begum (supra). This Court after referring to the provisions of section 107 of the Act and sections 17
(d) and section 49 of the Registration Act pointed out that the effect of non-registration as provided in the latter provision, is namely 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".
' After quoting the effect of non-registration as provided in the above section 49 the following observations were made about the nature of the rights created under the unregistered lease agreement: "It may be 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 Banch 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."
' As regards the case of Mrs. Zehra Begum (supra) the following distinctions were pointed out in para. 5 of the above judgment:- "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."
8. We are inclined to hold that the above judgment of this Court on all fours is applicable to the case in hand, particularly keeping in view that in the above report the petitioner was M/s. Habib Bank Ltd., which is the respondent in the present case and had relied upon more or less on an identical tenancy agreement containing more or less identical terms.
' However, Mr. A.R. Akhtar, learned counsel for the respondent has vehemently urged that in the above case the effect of section 53-A of the Act has not been considered, which according to him is applicable even to a case of lease. Reliance was placed by him on the judgment of this Court in the case of Kalimuddin Ansari v. Director, Excise and Taxation (PLD 1971 SC 114) particularly on the following observation:- "In short, but for the technical objection that no registered lease has been executed the lands are leased out in perpetuity, and it would indeed be very difficult for the Government to oust them. In any proceedings for ejectment section 53-A of the the Transfer of Property Act would afford a valid defence against the ejectment. The agreements clearly show that the Government has intended to divest itself and to vest the lands in the sub-licensees, but the latter have apparently mala fide omitted to execute the lease as they were required to do under the terms of the agreement. In these circumstances to accept the appellants' contention is not only to act directly against the intention of the Legislature as contained in section 4 of Act V of 1958 but also to help the appellants in their wrongful efforts to evade the payment of tax under the said Act."
' We may observe that the above-quoted observations are to be viewed in the factual background of the above-reported case, namely that the allottees of the plots in P.E.C.H.S. Had challenged the right of the Provincial Government and the K.M.C. To levy property tax on the bungalows/house etc. Constructed by them on the allotted plots on the ground that the ownership of the land was vested in the Federal Government and that the society was merely a licensee, which in turn had granted sub licences to the allottees and, therefore, section 4(a) of the West Pakistan Urban Immovable Property Tax Act, 1958 (which provides that no tax shall be leviable in respect of buildings or lands vested in the Federal Government) was applicable. The above contention was repelled as follows:- "As regards the contention on behalf of the appellants that the properties in dispute are exempt from payment of the tax under Act V of 1958 it may be stated that a true construction of the agreement in question leaves no room for doubt that the appellants were not merely licensees as they were labelled to be. They have much more interest in the lands over which they have constructed buildings with the express consent of the Government, than those of mere licensees.
The licensees have constructed pucca buildings on almost all the lands allotted to the different licensees, and what is more the agreements have specifically mentioned that on the construction of the buildings of the licensees shall at once be entitled to obtain registered leases from the Government."
In our view the above-cited case does not advance the case of the respondent. Since the tenancy agreement purported in fact to create a lease in perpetuity and as the same was not registered, a statutory tenancy came into existence under the provisions of the Ordinance as admittedly the appellant accepted rent from the respondent from time to time. In this regard reference may be made to the case Hakim Ali v. Muhammad Salim (1992 SCM R 46). The rights of the parties were to be regulated under the provisions of the Ordinance and not under the tenancy agreement, which was not a legal and enforceable document. Mr. A.R. Akhtar is unable to cite any case to indicate that a statutory tenant under the Ordinance can press into service sec-tion 53A of the Act in order to contend that he is entitled to claim a lease in perpetuity. If we were to accept Mr. Akhtar's above submission, it would run counter to the provisions of the Act and the Registration Act. It may be pointed out that one cannot do that indirectly, which he is prohibited from doing directly.
We may point out that this Court has declined to allow tenants to plead section 53-A of the Act even in case, in which the landlords entered into agreement to sell the tenements to the tenants in absence of a clause in the sale agreement to the effect that the relationship of that landlord and tenant ceased to exist and that the possession of the tenant was of that of a purchaser after execution of the sale agreement. In this regard reference may be made to the following judgments of this Court:--
(1) Shamim Akhtar v. Muhammad Rasheed (PLD 1989 SC 575).
(2) Mst. Azeemun Nisa Begum v. Ali Muhammad (PLD 1990 SC 382).
(3) Iqbal and others v. Mst. Rabia Bibi and another (PLD 1991 SC 242).
On the parity of the above reasoning, we are also unable to agree with Mr. Akhtar's contention that a statutory tenant can invoke section 27-A of the Specific Relief Act.
9. The upshot of the above discussion is that both the Courts below have wrongly relied upon the clauses of the tenancy agreement for non-suiting the appellant, they failed to enquire into the question whether factually the appellant was able to prove his bona fide personal requirement on the basis of the evidence. We would, therefore, allow the above appeal and would set aside the judgments of the two Courts below and would remand the case to the learned Rent Controller with the direction to decide the question of personal bona fide requirement afresh keeping in view the observations contained hereinabove. The appeal stands disposed of in the above terms with no order as to costs.
(Sd.)
Ajmad Mian, J.
(Sd.)
' Sajjad Ali Shah, J. SALEEM AKHTAR, J.--A separate note of concurrence has been appended.
(Sd.)
Saleem Akhtar, J.
' SALEEM AKHTAR, J.---I agree with the judgment of my learned brother Ajmal Mian J., but wish to express my views in respect of the observations made in Hakim Ali v. Muhammad Salim (1992 SCM R 46), which has been referred to in the judgment. In Hakim All while referring to section 5 of the Sindh Rented Premises Ordinance it was observed as follows:- .
"There is no doubt that section 5 of the Ordinance does not provide that if the tenancy agreement containing the terms and conditions on which the premises is let out, is not in writing and executed in the manner provided in section 5, then that would be the consequences. But, it is well settled that when the law gives direction to do a thing in a particular manner, it shall be done in that manner or not at all. In my opinion, in such a case one consequence would be that no relationship of landlord and tenant between the parties in respect of the premises will come into existence. If the existence of the relationship is otherwise admitted but the agreement is not in writing or executed in the manner provided in section 5 of the Ordinance, the terms and conditions which are contained in such an agreement, if they are inconsistent with any provision of the Ordinance, they would be invalid to the extent of inconsistency. In other words if the tenancy is admitted the parties shall be deemed to have held the tenancy in accordance with the provisions of the Ordinance. The object of section 5 seems to avoid any controversy as to the existence of relationship of landlord and tenant between the parties and to provide documentary proof thereof, and also to provide documentary proof of the terms and conditions on which the premises is let out to the tenant."
In my humble view the principle that if the law gives a direction to do a thing in a particular manner, it shall be done in that manner is well-settled, but to say that it "shall not be done in any other manner at all" will be stretching the principle too far and applying it generally without considering whether the provision of law is mandatory or directory. The words 'or not at all' do find place in the Reference No, 1 of 1988, made by the President of Pakistan PLD 1989 SC 75 where the Court was considering the mandatory provisions of Article 86 of the Constitution with reference to a particular emergent situation which had arisen in that case. In cases of ordinary day to day relationship between the parties like that of landlord and tenant, such strict construction may not be permissible because section 5 does not specify any penalty for non-compliance and further that it is procedural in nature. With utmost respect, I adhere to my view as expressed in Mst. Fatima v. Mst. Hanifan (1986 CLC 1613). In the observation quoted above, a deviation has been made and there seems to be an exception carved out for such tenancies which are admitted by the parties though they may not have been in the form provided by section 5. If mere admission of tenancy is to be accepted, which is not provided by section 5, then such admission if not in pleading, has to be proved by oral or documentary evidence independent of any agreement as contemplated by section 5. In this ordinary relationship of landlord and tenant to restrict creation of tenancy in a watertight compartment and to deny the relationship merely on a technical ground will not serve the cause of justice. In the absence of any written agreement as required by section 5, if a party is able to prove that he is a tenant by producing evidence admissible in law, mere defect of non- compliance of section 5 will not deprive him of such tenancy.
(Sd.)
Saleem Akhtar, J.