' This is tenant's second appeal under section 15(4) of the West Pakistan Urban Rent Restriction Ordinance, 1959. He has been ordered to be evicted on the ground of personal requirement of the respondent (landlord).
2. The property in dispute is a shop. It was already with the appellant on a monthly rent of Rs, 200 when, on 21-5-1973, the appellant purchased a stamp paper worth Rs, 105 for executing a rent note in favour of the respondent. A rent note was accordingly written by the petition-writer on the said stamp paper which is described as {{URDU TEXT}}. This document was signed by two witnesses but does not bear the signatures of the appellant. There is controversy as to who was responsible for the omission of the signatures of the appellant-according to the respondent, the appellant was not agreeing to a condition for further enhancement of the rent after the period of five years while according to the appellant, despite his willingness and effort in this behalf, the respondent dodged him in so far as his signing the document is concerned. The writing in Exh. P. 1, among others, contains the stipulation that the period of tenancy would be from 1-7-73 to 30-6-78 and that for this period of tenancy the rent would be Rs, 272.50 p.m. And further that after the period of five years the appellant would hand over the possession to the respondent without any objection. He also undertook to pay the expenses and damages to the respondent in case he failed to vacate the shop after the period of five years and as a security for this undertaking, it is further mentioned in the document, the appellant had deposited Rs, 1,000 with the respondent on 18-5-1973.
3. The defence of the appellant to the eviction application regarding ground of personal requirement of the respondent, was that the application was hit by the bar contained in the proviso to sub-clause (ii) of section 13(3)(a) of the Ordinance, which reads as follows:- "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 subsection before the expiry of such period."
' The precise argument being that there being agreement between the parties, for the appellant to continue as tenant for period of five years--1-7-73 to 30-6-78, the application could not be entertained by the Rent Controller.
4. The appellant's plea was repelled on the ground that the document Exh. P. 1 was not signed by the appellant. Therefore, in law, it would not be deemed to have constituted an agreement between the parties and, in any case. Even if there was an agreement regarding continuance of the tenancy, the period of tenancy cannot be read into that agreement on account of the afore noted reason of absence of appellant's signatures.
5. Learned counsel for the appellant has, relying on Messrs Jamal Jute Baling & Co., Dacca v.
Messrs M. Sarkies & Sons, Dacca (1) contended that notwithstanding the absence of signatures of the appellant on the document Exh. P. 1, the stipulations therein having been acted upon, the respondent cannot challenge the right of the appellant to continue as tenant for five years in accordance with the agreement. He has also cited Mian Allah Bakhsh v. Fazal Karim and others (2).
Learned counsel argued that the fact that document Exh. P. 1 was not signed by the appellant would not make any difference because even if it is not to be treated as a formal rent note, it would furnish supporting material for proof of the fact that the parties had agreed to certain terms of tenancy which were put into writing.
6. Learned counsel for the respondent, in reply, contended that unless the document Exh. P. 1 had been signed by the appellant, it could not in law (1) PLD 1971 5 C 784 (2) PLD 1969 Quetta 13 be treated as having been executed. If it was not executed, there was no agreement with regard to the stipulations contained therein. He has relied on the obvious facts not denied from the appellant's side that the document Exh. P. 1 does not contain his signatures and that he had not sent a reply to the notice served on him by the respondent requiring him to sign the document. He highlighted the above argument by further arguing that if it is held that execution can be possible without signatures and thumb-impressions, this would lead to a mischief, which would be irremediable.
Proceeding on the above suppositions, learned counsel further argued that there being no proposal and acceptance there was no contract. He also contended that the landlord has a right to eject his tenant on ground of personal requirement. The proviso quoted above places a clog on this right, therefore, it should be construed very strictly and no agreement should be accepted as the agreement mentioned therein, unless it is properly "executed". With regard to the agreement having been acted upon, he contended that the appellant was already in possession of the property, therefore, his continuing occupation would not mean that the so-called agreement was acted upon. So far as increase in rent is concerned, he submitted that the same by itself would not show that the period of tenancy was agreed to be five years.
7. Certain facts are admitted: One, that the appellant was a tenant under the respondent before 1- 7-73 and he was paying Rs, 2C0 p.m. This was admitted by the respondent in his cross- examination; two, after the expiry of the previous period whatever, whether it was for 11 months or more, the appellant had agreed to take the property on rent for further five years-this is also admitted by the respondent in his cross-examination; three, the appellant paid the enhanced rent for period after 1-7-73-this has not been so disputed in this Court; four, the eviction application was moved nearly three years after the so-called renewal of the tenancy-during this period, there is nothing to show that the tenancy was either from month to month or from year to year or for 11 months; five, the document Exh. P. 1 written by the Petition-writer (P. W. 4) in presence of the witnesses who signed it and on directions of the appellant. It was also in presence of the respondent and this fact stands established from the examination-in-chief of the respondent; and lastly, the respondent never objected to the renewed tenancy being for five years-on the contrary, he insisted that the agreement with the stipulations, whatever are contained therein, must be signed by the appellant. This is evidenced by the admitted fact of the respondent having served the appellant with a notice (P. 3) requiring him to sign the document as it is. There is nothing in the notice to show that the respondent wanted any modification either relating to rent or with regard to the period of tenancy.
8. The learned Rent Controller as also the learned lower appellate Court ignored some of the above noted aspects of the case and, in any case, misread the evidence in this behalf. There is no denying the fact that there was an agreement between the parties for further continuance of the tenancy for a period of five years commencing from 1-7-73, the enhanced rate of rent as also on the question of the appellant vacating the shop on the expiry of period of five years. According to the respondent (in cross-examination, the difference of the parties was not on any of the stipulations contained in the agreement which related to period of five years, but on an extraneous matter, namely, that the respondent wanted that after the expiry of five years the appellant would pay double the rent while the appellant did not want to bind himself in this behalf. Although this question of fact is controversial, the fact remains that not only that this controversial condition is not mentioned in the agreement, therefore, the appellant could not have any cause for not signing the same, but, further, it cannot be ignored that the respondent wanted the appellant to sign the agreement Exh. P. 1 as it was without any addition or modification-none was proposed in the notice (P. 3).
9. It has to be held that the parties having verbally agreed on the conditions of tenancy commencing from 1-7-73, got them written on a stamp paper, 1. e., Exh. P.
1. The provision contained in the proviso to sub-clause (ii) of section 13(3)(a) does not contain any mandatory direction that the agreement mentioned therein must be in a particular form. It can be verbal. It can be in the form of mere stipulations without any formality. It can be in the form of a unilateral note as also a bilateral formal agreement. This supposition gets strengthened from the provisions of sub-clause (1) of section 13(2) 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. Even if it be assumed for the sake of argument that a 'formal' agreement was not as such 'executed' between the parties by appending signatures thereon, there is no denying the fact the parties did reach an agreement, the conditions of which are mentioned in the document Exh. P.
1. I agree with the learned counsel for the appellant that if the said document cannot be treated as a formally executed agreement, the facts that this document was written in the' presence of both the parties; that till the service of notice (P. 3) and subsequently also the respondent accepted its stipulations as binding on both the parties; and till today the appellant accepts them as binding on him,' because he has nowhere raised a plea of denial, furnished strong evidence supporting corroborating the appellant's case. I do not agree with the learned counsel for the respondent that there was no acceptance on the part of the appellant. The agreement was acted upon by him. He started paying the enhanced rent. Even when he was served with a notice (P. 3), he did not object to it by conduct or by a specific reply to the contents of the agreement. On the other hand, his case is that he insisted on signing the document. Therefore, the agreement was acted upon.
10. The argument of the learned counsel for the respondent that the appellant was already in possession would not make any difference because there is nothing to show that his continued possession was only for 11 months, as stated by the learned counsel. On the contrary, the respondent's admission in his cross-examination that the agreement was for five years shows that whatever the nature of other stipulations, there was no doubt with regard to the period of tenancy being five years. The apprehension of the learned counsel for the respondent that if the document Exh. P. 1 is treated as a formalised and properly executed agreement it would lead to some mischief, is unfounded. It is in the peculiar context of the provisions of the Rent Restriction Ordinance and the circumstances of this case that the document in question has been treated as furnishing material support to the case of the appellant, that there was agreement between the parties with regard to the period of tenancy. If a law, by express provision or by implication, requires a certain document to be completed and executed in a certain form and manner, the decision in this case would not affect the same and there would be no danger of any mischief. The rulings cited by the learned counsel for the appellant support him to a considerable extent. In so far as the ruling of the Supreme Court in the case of Messrs Jamal Jute Baling & Co., Dacca is concerned, the principle laid down therein would fully apply to this case.
11. In the light of the above discussion, it is held that the parties had agreed to the period of tenancy being five years, i. e., commencing from 1-7-73 and ending with 30-6-78. The application for eviction moved in 1976 was obviously premature and was barred under the proviso to sub-clause
(ii) of section 13(3)(a) of the Ordinance. The respondent could not apply for eviction of the appellant on the ground of personal requirement. The application merited dismissal. Accordingly, this appeal is allowed. Both the impugned orders are set aside. There shall be no order as to costs.