' I intend to dispose of F.A.O. Nos.123 to 129, 136 and 137 of 2000, which have been filed against an eviction order, dated 31-5-2000, passed by learned Senior Civil Judge-cum-Controller, Quetta, on the ground of personal requirement of the respondents after making certain alterations to use the premises in question as a hotel and restaurant.
' The brief facts necessary for the purpose of disposal of these appeals are that the respondents own a building named "Al-Shahab Building" situated on Jinnah Road. Quetta comprising a number of shops and offices. It is the case of respondents that the building as it originally existed was partitioned amongst the owners and "property in dispute" fell to their share. Respondents themselves in their eviction application gave break-up of the building, the particulars of the tenants, rate of rent and amount of advance rent received-adjusted or otherwise. However, respondent Hamayyun Jaffer in his statement in Court under took to return (balance of) advance rent at the time of eviction: S. No.Name of TenantPremises Municipal NumbersRent per month.
1. Haji Abdul Qadir 9-6/9-J 800 2.Nasim Ahmed A.K. Traders9-6/9-J 450
3. Haji Abdul Qadir 9-6/9-K 800 4.Nasim Ahmed A. K. Traders9-6/9-M 400
5. Haji Abdul Qadir 9-6/9-J 700 6.Haji Foojan Haji Abdul Qadir9-6/9-N 9-6/9-O750 750 7.Khawaja Jalil Mining & General Machinery9-6/9-D 500
8. Imdad Ali 9-6/9-S 500
9. Allmal Travel Agency9-6/9-T 400 10.Hafeez & Co. 9-6/9-KV 800
11. Dawod Yamaha Ltd.9-6/9-W 2000 Advance Received 30,000 up to No. 2003 22,950 from Oct.
1999 to Dec. 2003 38,000 up to Nov. 2005 20,400 from Oct.
1999 to Dec. 2003 21,000 up to Dec. 2000 51,000 up to Dec. 2000 Received up to Dec.2000 Received up to Dec.2000 Received up to July, 2001 Received up to Dec. 1999 120,000 received up to 31-3-2000Amount of Rent Adjusted from Advance 400 450 400 400 350 750 1,000Date of receipt of Advance 1-9-1997 1-10-1999 1-1-1998 1-10-1999 2-1-1996 7-5-1995 1-4-1990 ' The above application filed on 23-10-1999 was resisted by the appellants and it was inter alia contended that respondents were not entitled to evict the appellants as according to their own showing, they had received advance rent, which means creation of fixed tenancy, and therefore, eviction application on the ground of personal requirement was not competent. The learned Rent Controller after framing issues, recording evidence and hearing the parties allowed the above rent application by her order dated 31-5-2000.
' Syed Ayaz Zahoor, learned counsel for the appellants argued that receipt of advance rent amounted to creation tenancy for a specified period and, therefore, he claimed immunity from ejectment by the landlord on the ground of personal requirement. He referred judgment reported in 1992 SCM R 943. Mr. H. Shakeel Ahmed, learned counsel for some of the appellants added that as the requirement of respondents was for the building as whole after alteration, so no eviction can be ordered even against the tenants, whose advance rent has been adjusted.
' On the other hand, Mr. Basharatullah, learned senior counsel vehemently argued that receipt of advance rent cannot be equated with an agreement as required by first proviso of section 13(3)(a)
(ii), it would amount to a clog to the right of respondents for their bona fide requirement and that in any case plea was not raised in the written statement or memo. Of appeal. He sought support from 1997 SCM R 1819. Although lengthy arguments were addressed on merits, it is not necessary to make any reference, in view of the order, I purpose to pass.
' It would be appropriate at this stage to reproduce relevant provisions of law:-- "13. Eviction of tenant.---(1) A tenant in possession of a building or rented land shall not be evicted therefrom in execution of a decree passed before or after the commencement of this Ordinance, or otherwise, and whether before or after the termination of the tenancy, except in accordance with the provisions of this section.
(2) A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied that-
(i) the tenant has not paid or tendered rent due by him in respect of the building or rented land, or in the absence of any such agreement, within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord within sixty days from the period for which the rent is payable."
(3)(a) A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession.
(i) in the case of a non-residential building or a scheduled building or rented land if
(a) he requires it in good faith for his own use or for the use of any of his children;
(b) he or his said child is not occupying in the same urban area in which such building is situated for the purpose of his business any other such building or rented land, as the case may be, suitable for his needs at the time; and
(c) he was not vacated such a building or rented land without sufficient cause after the commencement of this Ordinance, in the said urban area: ' Provided that where the tenancy is for a specified period agreed upon between the landlord and the tenant the landlord shall not be entitled to apply under this subs. Before the expiry of such period."
(Underlining is mine)
' Before examining the respective contentions of parties, it would be useful to refer valuable discussion of Hon'ble Supreme Court of Pakistan in reported case Mrs. Zarina Khawaja v. Agha Mahboob Shah (PLD 1988 SC 190) at pages 199-200 and which may be relevant to the context, in my understanding: "We have carefully considered the implication of various judgments of the Supreme Court which deal with the question of continuance of the terms of agreement of tenancy, after its termination.
Leaving aside the theoretical possibilities all of them can be interpreted consistently on the following lines: ' One: notwithstanding the enactment of the rent laws the relationship of landlord and tenant would continue to be determined and regulated in accordance with:
(a) the general law; and,
(b) The terms of tenancy between the parties, But, subject to a very important condition that in case of repugnancy of either of these two elements to any of the provisions of the rent law the latter shall prevail; meaning thereby that the provisions of the general law and/or the covenants, in the agreement to the contrary, shall have no effect; Two: during the continuance and subsistence of the agreement of tenancy, the Question of relationship of landlord and tenant, the regulation of that relationship particularly vis-a-vis the determination and payment of rent; as also the eviction, shall be governed by the covenants contained in the agreements; provided that those covenants do not come in conflict with the provisions of the rent law and in case of conflict the provisions of that law will prevail notwithstanding any term of agreement to the contrary; Three: after the expiry of the agreement of tenancy the general law of holding over by the tenant has not been repealed or modified by the rent laws except to the extent that it comes in conflict with the provisions of the Rent Restriction Law. On the contrary, it was specifically provided in the definition of a 'tenant' in section 2 of the West Pakistan Urban Rent Restriction Ordinance, 1959, that a tenant would include a tenant continuing in possession after the termination of the tenancy in his favour. The definition of tenant in the present Sindh Law also provides that a tenant would include 'any person' who continues to be in possession or occupation of the premises after the termination of his tenancy'. Not only this, tile. Present Sindh Law made it more clear when the provisions contained in sections 6 and 15(2)(i) of the Sindh Rented Premises Ordinance, 1979, providing that no tenancy would remain valid beyond the mutually agreed period and that a tenant would be liable to be evicted on termination of such period were repealed. The obvious reason was that the pre-existing law before the re-enactment was kept intact; namely, that the previous tenancy arrangements between the parties will continue to operate notwithstanding the termination of the period and will govern the continuance of tenancy as 'visualized in the definition of the tenant holding over. However, notwithstanding the continued operation of the terms of the agreement after the termination of the agreement; by process of law as aforesaid, its provisions whenever they are in conflict with the rent law, shall not be operative. For example, if a special method of eviction of the tenant is provided in the terms of the agreement which are repugnant to the provision contained in the relevant Rent Restriction Law, the latter shall prevail to the extent of repugnancy. Section 15 of the Sindh Law is explicit on this point. Same was the position in the repealed Law. Similar would be the case relating to some other situations, for example, the determination of the fair rent. Similarly, the vice versa position would also be correct. The terms of the so-called expired agreement which are not repugnant to the rent law shall continue to operate.
For example, the rate of rent, the mode of payment thereof including its advance payment or deposit, provision for agreed increase in rent provided it is not after the determination of fair rent, provision for re-entry of a tenant after he vacates the premises for reconstruction, all covenants which support the conditions in section 15 of the Sindh Law and section 13 of the Law repealed by it, and similar other conditions and comments. There is useful discussion on this aspect in the case of Muhammad Yunus Malik v. Mst. Zahida Irshad 1980 SCM R 184. We accordingly answer the 4th question in the negative and hold that the terms of any expired agreement as such, continue in operation, to the extent they are not repugnant to the Rent Law. Indeed same would be the position with an unexpired agreement also."
The proviso hereinbefore mentioned does not contain any condition that the agreement must be in a particular form. It may be verbal. This conclusion gets support from the provisions of section 13(2)(i) where the agreement mentioned has been interpreted as any type of agreement without any insistence on formalities. Verbal agreement of tenancy has always been accepted as an agreement under the said provision. An oral agreement of tenancy is neither in conflict with the provisions of the rent law nor Contract Act. Therefore, even the oral agreement is biding on the parties. Although there is no agreement in writing, it can easily be spelled out from the column five of the chart filed by respondent themselves that they had not only received rent in advance but the same was on account of rent up to a specified period. The advance rent, therefore, is to be adjusted by the landlord when the same fell due. It has to be adjusted in accordance with the terms of the oral agreement, which is proved by the admission of respondents themselves and as mentioned in Column No,5 of the Chart. The provisions of the Rent Ordinance permit freedom of contract based on equality of bargaining power in both parties. The landlord at the time of receipt of advance rent were supposed to know that they were bartering away their personal need. After accepting advance rent up to a specified date, landlord rendered themselves ineffectual because they have imparted to the tenant something more than the current tenancy. After receipt of advance rent, the respondents were not competent to file eviction application against the tenants on the ground personal requirement, till such time the amount received is adjusted. The intention of the parties is very clear and tenants cannot be deprived from the benefit of the proviso. The stand of landlord that they are prepared to return this amount in case the tenant vacant the premises would be of no help to them as the purpose for which this amount had been paid was to cover the accruing rents. Also that it is not the case of even respondents that unutilized amount was refundable on delivery of vacant possession. As this amount can be applied to accruing rents only, therefore, the intention of the parties is clear that tenancy was for a specified period, the first proviso of section 13(3) of the Ordinance applies. And the plain meaning of the proviso is that, if the tenancy is for a particular period, then the landlord cannot evict the tenant before the expiry of that period, except of course on ground of damage, sub-letting, nuisance but certainly not on the ground of personal requirement. As a matter of fact, case of the appellants is on much better footing. Assuming, there is an agreement between the parties for a specified period and rent is payable on month to month basis but if in that case, protection of proviso is available, I fail to understand, why it is not available in the instant case, where tenants had already performed their part of obligation of payment of rent. The respondents cannot be allowed to unilaterally terminate the agreement, particularly when they are still keeping the amount and return of balance amount has been offered subject to vacant possession. Equity and the object of the Ordinance VI of 1959 both are also in favour of the appellants. The judgment referred by learned counsel for the respondents is not relevant, in that payment of 'pagri' was pleaded, which was not a term and condition of tenancy and also found against public policy.
In the events of the background and the case-law it could be concluded that the terms of agreement (may be oral) being not inconsistent to the Rent Ordinance would be operative and binding upon respondents/ landlord, therefore, they were bound to it.
' The contention of learned counsel 'for the respondents that plea was neither raised in written statement nor in memo. Of appeal, is without substance, as the same has been specifically raised.
However, in my view, the appellants 'ire entitled to press the objection particularly when the receipt of advance rent up to a specified date has been admitted by the respondents, without any further -.Planation, as to the purpose for which the amount had been paid. The landlord had disentitled themselves to seek relief under the provisions of West Pakistan Urban Rent Restriction Ordinance, 1959, as they had accepted advance rent, as such, die impugned order passed by the Rent Controller granting eviction on the ground of personal need is not sustainable.
' Reverting to the question of period of tenancy, it may be stated that as per particulars provided by the respondents themselves in application and affidavit, they had received rent from the tenants up to July, 2001; November, 2003; December, 2003 and November, 2005. The receipt of other advance payments are not relevant, as the same have been adjusted. So, tenancy with them is for a specified period and eviction application against them on the ground of personal requirement is not . Even competent. However, it is important to point out that building consists of shops on the ground and offices on the first floor. Respondents filed a single eviction application against all the tenants on the ground that after making necessary alteration and addition (for which they had also obtained approval from Municipal Corporation), the same would be required for their personal use and occupation to run a hotel and restaurant therein. But their need is of the building as a whole and that too after necessary alternation/addition but as no eviction order can be passed regarding premises at Serial Nos.1 to 4 and 9, proposed alternation/addition (indicated from approved plan) is not possible without vacant possession of all the tenants.
I, therefore, without entering in the merits of their case, dismiss the application against them, as well, particularly when joint eviction application was filed against all the tenants. Accordingly, appeals are accepted and order of Controller, dated 31st May, 2000, granting eviction on the ground of personal requirement is set aside, with no order as to costs.