On 15-12-1992, Mrs. Asma .Masood (hereinafter referred to as "The Landlady" or "the respondent") let out her bungalow built on Plot No.30/1, Street No.21, Phase V, Defence Housing Authority, Karachi (hereinafter referred to as "the bungalow" or the "demised premises") to Amanat Hussain Khan (hereinafter referred to as "the tenant" or "the appellant") under a written lease agreement, although the lease was for two years from 16th December, 1992, to 15th December, 1994, at the rate of Rs.12,000 per month paid in advance, but it was also the term of the agreement that after completion of said lease the rent from 25th month i.e. 16th December, 1994, shall be Rs.14,000 per month to be paid for full one year in advance and unless a lower rent was mutually agreed between the parties the rent will increase by Rs.2,000 after every two years.
2. The tenant had paid the tent for first term of tenancy period, i.e. Two years in advance. He also paid the rent for the third year commencing from 16th December, 1994, and ending on 15th December, 1995, in advance at the rate of Rs.13,500 per month instead of Rs.14,000. The amount of Rs.500 per month is said to have been deducted towards the expenses borne by the tenant on some repairs works of the bungalow. However, after expiry of second term of two years the tenant did not increase the rent as agreed in the lease agreement. In December, 1996 he filed MRC No.447 of 1996 and deposited monthwise rent with the Rent Controller at the same rate of Rs.13,500.
3. On 23-12-1998, the landlord filed an application under section 17(2)(4) of the Cantonments Rent Restriction Act, 1963 (hereinafter referred as "The Act") for eviction of the tenant on the ground of default in payment of rent and share of water conservancy and fire charges. She also took the ground of personal requirement.
4. The tenant admitted the execution of tenancy agreement dated 15-12-1992, and non :payment of the increase in the rent after 15-12-1996. He pleaded that the lease agreement although signed by him was a void document as it being for more than one year was not registered under the Registration Act, therefore, his status was of statutory tenant and the terms of agreement relating to the increase in the rent were not applicable to the tenancy. He also controverted the personal requirement pleaded by the landlord.
5. After framing the issues and recording the evidence of the parties the Rent Controller Clifton Cantonment ordered the eviction of the tenant on 5-11-2002 holding him responsible of willful default in payment of rent and share of water conservancy and fire charges. He, however, repelled the plea of personal requirement. That order dated 5-11-2002, has been assailed through present appeal.
6. Mr. Khalid Latif learned Advocate for appellant contended that firstly the power-of-attorney executed by the landlady in favour of Manzoor Durrani does not contain authorization to depose and file an affidavit in evidence on her behalf, therefore, his deposition is simply to be excluded of consideration.
7. His next contention was that although the execution of lease agreement dated 5-12-1992 and its terms stand admitted still the tenancy is not to be accepted as contractual one and is deemed to be statutory from its very inception for the reasons that the lease agreement was void firstly, being 'unregistered although required to be registered secondly, stamp duty was not paid upon it as required by section 35 of the Stamp Act. In support of his . Contention the learned Advocate referred to the case of Habib Bank Ltd. v. Dr. Munawar Ali Siddiqui 1991 SCM R 1150, Mr. Khalid Latif, however, admitted that the rent from December, 1990 was not paid by his client according to the terms of the lease agreement for the reasons that it was of no legal effect being void agreement.
8. Miss Samina Essa, learned Advocate for the landlady/respondent has defended the impugned order arguing that the appellant who admits the covenants of the tenancy under an agreement and had been accepting and performing its terms even after expiry of first term became unfair afterwards and bothered the landlady without any fault on her part. Turning to the point agitated by appellant's learned Advocate Miss Samina contended that the general power-of-attorney executed on 7-11-1997 by the respondent/landlord in favour of Manzoor Durrani does contain the authorization to the attorney that he shall pursue the legal proceedings on behalf of landlady and to do all or every lawful acts in those proceedings which is nothing but an express authorization to depose on behalf of the landlady. In presence of all that it cannot be inferred that the landlady did not permit or authorize the attorney to depose on her behalf. In the alternate Miss Samina contended that even otherwise Manzoor Durrani was the person who had negotiated with the appellant through the Estate Agent for letting out the bungalow and it was he who had been collecting the rents throughout, therefore, he could very well depose on the question of default.
9. As regards the validity of the agreement Miss Samiha contended that no doubt the agreement was for two years with the provisions of further extension of the tenancy yet it cannot be treated void from its inception for want of registration specially when the execution thereof has been admitted and terms acted upon not only for the first term of two years but during subsequent two years also. She referred to the fact that the tenant/appellant paid the rent of full one year i.e. From 16-121 994 to 15-12-1995 in advance as required by the agreement. Although he paid Rs.500 less than the fixed rate of rent i.e. Rs.14,000 per month but that was with the consent of Rent Collector, Manzoor Durrani as the expenses incurred on the repairs of the bungalow, therefore, the parties had been acting upon the terms of agreement of lease.
10. She also contended that after its admission in evidence the lease agreement could not be questioned in absence of any order of its admission subject to the payment of deficit stamps or penalty. She referred to section 36 of the Stamp Act.
11. I must mention at the very outset that present is the case where unfair tenant has attempted to take refuge behind the technicalities after violating the agreed terms of the tenancy/lease but they too do not provide him any shield, for the following reasons.
12. Contention of Mr. Khalid Latif relating to the power-of-attorney is without substance. The first look at the general power-of-attorney shows that it does authorize Manzoor Durrani to initiate, pursue, conduct and proceed with the ejectment application filed by the landlady against the tenant "Amanat Hussain Khan" which power includes the authority to depose also. Moreover, Manzoor Durrani is the person who admittedly had negotiated with the petitioner at the time of leasing out the bungalow and had acted as Rent Controller also, therefore, he even did not need any power-of- attorney.
13. As concerns the objection relating to the violation of the requirements of section 35 of the Stamp Act the arguments of Miss Samina have much substance. The agreement though not stamped properly was admitted in evidence without any condition, therefore, the objection about its being unstamped is not entertainable. Section 36 of the Stamp Act protects the document once admitted in evidence unconditionally.
14. The tenancy agreement referred to in section 17(2)(i) of the Registration Act is not required to be in a particular form. The provision speaks of an agreement disclosing the terms to which the parties agree upon for regulating the tenancy. In present case admittedly the parties agreed to the terms for regulating the tenancy and reduced them into writing upon Rs.5 non judicial stamp paper. Thus, it is the tenancy agreement/lease agreement under the provisions of the Act.
15. It is the lease agreement, the execution and contents/terms thereof have been admitted. Also the terms were acted upon for the first term of two years as the possession of the bungalow was handed over to the tenant under the agreement and the rent for the two years was paid by the tenant according to its terms. In these circumstances, the document is a valid lease agreement. In support of this view the principle laid down by the Honourable Supreme Court in case of Messrs Jamal Jute Baling and Co., Dacca v. Messrs M. Sarkies and $ons, Dacca PLD 1971 SC 784 can be referred to. Thus, although the lease agreement was for two years and was not registered as required by section 17 of the Registration Act yet it is a valid agreement. Non-registration does not affect its status and character. In view of section 49 of the Registration Act such agreement is admissible in evidence for proving the nature and covenants of the contract.
16. As mentioned above, present is the case where possession of the bungalow had been transferred to the tenant and he paid the rent for two years to the landlord in performance of the lease agreement, therefore, the principle of part performance is applicable to it under the principles of equity. No doubt, section 53 of the Transfer of Property Act makes the principle of part performance available for defence only but is always subject to the principle of equity which has judicial recognition in Pakistan also. When under section 53-A of the Transfer of Property Act the transferor is not permitted to attack the transferee's right of possession over the property in part performance of an unregistered agreement the transferee also cannot deny the transferor's right for consideration of his possession under the principles of equity. In support of this view the decision of Privy Council in case of Muhammad Musa and others v. Aghore Kumar Ganguli and others AIR 1914 Privy Council 27 can be referred to. In that case contract partly carried to execution was held binding on the parties under the principles of equity. In the circumstances the pronouncement referred to by Mr. Khalid Latif is not helpful to him. In that case the tenancy in perpetuity was being claimed on the basis of an unregistered agreement:
17. Also Article 115 of the Qanun-e- Shahadat estops the tenant from denying the right of landlord under the agreement which both of them acted upon A materially.
18. As the agreement of lease was valid one and had also been acted upon materially the tenancy shall continue to be regulated by its terms specially when none of .The parties claim those terms to be repugnant to the provisions of the Act. The prineiple laid down in case of Mst. Zareena Khawaja reported in PLD 1988 SC 190 can be referred to in support of this view. Although, in that case the term "expired agreement" was used but the principle is that the tenancy is to be -regulated by the agreed terms under which it had started. In other words the agreed terms having been acted upon at the initial stage of the tenancy or for sometime thereafter are to regulate the tenancy.
18. After reaching the conclusion that the tenancy had to be regulated under the terms of the lease agreement dated 15-12-1992 the question of default on the part of the appellant/tenant needs no detailed discussion as according to the terms of the lease agreement the rent after 15-12-1996 was to be Rs.16,000 and the tenant had to deposit 12 months rent in advance but he admittedly, deposited the same in MRC No.447 of 1996 at the rate of Rs.13,500 per month and that also monthwise, therefore, he was rightly held responsible of wilful default and liable to eviction.
20. In the result of above, the appeal fails and is dismissed with costs.