S.A.O. Nos. 56 of 2003 and 174 of 2003, are being disposed of together, as both involve common questions of law and facts.
2.The property in question, which is a double storied building,built upon about 15 Marlas of land, situate in Sialkot, was owned by one Muhammad Asmat Pervaiz, who vide registered sale-deed dated 18-5-2000, has sold the said property in favour of the appellants; however, at the time of the sale, the property was in occupation of the respondents, as a tenant, who were inducted in possession thereof, by Muhammad Asmat Pervaiz, through an unregistered tenancy agreement dated 10-7-1997 between them. Anyhow, on acquiring the title to the property the appellants filed an eviction application against the respondents on the ground of personal need. While resisting the application, the respondents set out the defence that, under the said agreement, the tenancy is for a specified period of 10 years commencing 1-7-1997 till 30-6-2007, thus, the ejectment application is not maintainable, and the appellants, who are the successors of the original landlord and having 'stepped into his shoes, and were aware of the terms of tenancy, thus, they cannot seek the eviction for their personal need till the expiry of the period of tenancy; on merits also, the bona fide personal need of the appellants was refuted. The learned Rent Controller, framed the following issues:-- ISSUES.
(1) Whether the ejectment petition is not maintainable in its present from? OPR.
(2) Whether the ejectment petition is false and frivolous one? OPR.
(3) Whether the Court has no jurisdiction to deal with the ejectment petition of the case? OPR.
(4) Whether the plaintiff has personal need of the disputed building? OPA.
(5) Whether the petition is liable to be dismissed according to the terms and conditions of the agreement? OPR.
(6) Relief.
' The parties were put to trial; their evidence was recorded, and the learned Rent Controller, while answering the material issues in favour of the appellants and against the respondents, came to the conclusion that because the tenancy agreement is an unregistered document, resultantly, it shall only be effective for. 11 months, and will not create the tenancy for a period of 10 years, therefore, the appellants can maintain the eviction action for their personal requirement before the expiry of the said period. Besides, on factual premises, it was held that the appellants, have been able to prove their personal bona fide requirement as they intend to establish their own business in the said property, resultantly, the ejectment application was allowed, through the order dated 22-1- 2003. Aggrieved of the above, the respondents-preferred an appeal, which has been accepted, and the learned Court of Appeal, by reversing the findings of the learned Court of Appeal, by reversing the findings of the learned Rent Controller, on the relevant issue, has come to the conclusion that:- "So far as the personal need of the respondents is concerned, they were fully aware of the agreement with the appellants and they had purchased the said property with all its liabilities and rights and duties. As such they were fully aware of the fact that in case of the purchase of the demised premises they would not be getting the possession of the property prior to 30-6-2007 but in spite of the fact they purchased the said property and only after one year of their purchase they filed the instant ejectment petition. Hence, plea of personal need on part of the respondents is not bona fide, as such cannot be allowed."
' It may be pertinent to state here that, other issues, which were decided against the respondents by the learned Rent Controller, were not touched by the learned Court of Appeal, thus, assuming that the findings on these issues have been affirmed, the respondents have also brought S.A.O.
No,174 of 2003 against the same decision.
3. Ch. Khurshid Ahmad, learned counsel for the appellants by relying upon the judgments reported as M. K. Muhammad and another v. Muhammad Abu Bakar (1993 SCM R 200 at 206), Muhammad Rafique v. Messrs Habib Bank Limited (1994 SCM R 1012 at 1015), Asad Ejaz Ahmed v. Rent Controller, Multan and 2 others (2000 UC 242 at 243), Anwar Sultana and others v. Pakistan Co-operative Housing Society Ltd. (PLD 1964 (W.P.) Karachi 116) and Naimat Siddique v. Farooq Umar and others (1984 CLC 969) and Habib Bank Limited v. Dr. Muhammad Ali Siddiqui (1991 SCM R 1185), has argued that the tenancy between the predecessor-in-interest of the appellants and the respondents, admittedly, was created vide agreement Exh.R-1, but it is an unregistered document, therefore, it does not create or purport to create the valid tenancy for a period beyond 11 months, as the tenancy beyond the period of one year in view of section 107 of the Transfer of Property Act and sections 49 & 17 of the Registration Act, can only be created through a registered document.
Therefore, according to Ch. Khurshid Ahmad, the bar contained in proviso to section 13(3) of the Rent Restriction Ordinance, shall not come in the way of the appellants. It is further argued that, the appellants, had fully proved their personal requirement of establishing a clinic/hospital in the premises. Appellant No,1 is a surgeon and appellant No,2 gynecologist, they have no other property in their ownership or the occupation, to meet their need, and nothing hasbeen brought on the record by the respondents, to show the factors militating against their personal requirement.
4. Mr. Ghulam Haider Alghazali, learned counsel for the respondents, on the contrary, has placed reliance upon the judgment reported as Muhammad. Nazir v. Muhammad Khan and another (2003 CLC 803), and has stated that even if the agreement of tenancy was compulsorily register able, but was not registered, however, when it has been acted upon, therefore, the valid tenancy for the period of 10 years came into being, preventing the appellants to seek the eviction of the respondents, till the expiry of the lease period on the ground of personal requirement. It is submitted that, the appellants were fully aware of the agreement Exh.R-1, they themselves have filed a copy of this document along with their ejectment application and nowhere have taken up the plea that, such agreement on account of non-registration, is invalid, for the tenancy beyond 11 months. It is also submitted that, in order to make the premises suitable to cater their needs, the respondents under a bona fide belief that, they shall continue to be in possession thereof for a particular period, have spent considerable amount of money, which amount, if the eviction order is passed, shall go waste. Lastly, it is argued that the. Courts below, have erroneously decided other issues against the respondents, which finding should be reversed and for that matter the respondents have brought the connected S.A.O.
5. I have heard the learned counsel for the parties. In the case reported as 1993 SCM R 200 (supra), which is based upon an earlier judgment of the Hon'ble Supreme Court reported as 1991 SCM R 1185 (supra); it has been held that: "The above agreement needed registration as it purports to be for a period longer than 11 months keeping in view the ratio of the judgment of this Court in the case of Habib Banks Limited v. Dr. Munawar Ali Siddiqui 1991 SCM R 1185. Apart from the fact that the above agreement was violative of section 7 of the late Ordinance and, therefore, was not enforceable as held by the High Court, the same was also bad in law because of non registration."
' From the aforementioned dictum, it is clear that if there is an agreement of tenancy, between the parties, which covers the period beyond one year and is not registered, it should only be considered as creating a valid tenancy for less than a year but for the remaining period mentioned therein, the agreement shall have no legal effect. The expression that where the tenancy is for a specified period agreed upon between the landlord and the tenant" appearing in the proviso to section 13(3), undoubtedly refers to such contract of tenancy, which is valid in law. But if on account of the consequences of non-registration the contract is invalid, there shall be no bar upon the landlord to seek the eviction of the tenant even before the period stipulated in the agreement, because such a condition has no legal effect at all. In such circumstances, where the agreement is unregistered, the first proviso to section 13 (3), would not come into play and deter the landlord, to seek eviction of his tenant on the ground of personal requirement.
6. I am not convinced with the argument of the learned counsel for the respondents that, the agreement having been acted upon, resultantly, even if it is invalid after one year period, yet it may be considered as valid for the purpose of creating tenancy for 10 years. If this argument is accepted, then in every case, the parties may enter into an agreement for longer period, without getting it registered and can raise the above plea. This would make the provisions of law requiring compulsory registration of the instruments constituting tenancies beyond 11 months and its consequences, as nugatory. This is not permissible under the law.
7. The other argument that, the appellants were aware of this agreement (Exh.R-1), as they had filed the same along with the eviction application, suffice it to say, that irrespective of their knowledge and awareness about the agreement. As the same because of non-registration was invalid and unenforceable under the law, therefore, did not create or purport to create any right of tenancy in favour of the respondents, for a fixed period of time i,e, from 1-7-1997 to 30-6-2007. Thus, under no principle of law including the rule of estoppel, the appellants were debarred to seek the eviction of the respondent.
8. The other submission that, the tenancy agreement can be used for collateral purpose, it may be held that the question of the tenancy being for a fixed period of time or otherwise, is not a collateral purpose, rather it is a matter about the creation of legal rights of the parties to the agreement; the enforcement and implementation of the terms and conditions of the same, which by no means can be said to be a collateral purpose.
9. I have also considered the matter on merits and find that, appellants, who are the doctors, want to make use of the premises for their requirement as a clinic/hospital for practicing their specialties, and there are no factors, which militates against their bona fide personal requirement.
It has not been established by the respondents, if they are in possession of any suitable property for their such use, and have no skill and expertise to conduct the business they intend to commence in the premises. Only for the reasons that, they knew about the tenancy agreement and yet purchased the property, in the light of the discussion made above, would not have any reflection upon their bona fide requirement.
10. In view of the above, this appeal is allowed, the connected S.A.O. No,174 of 2003, is dismissed. The order of the learned Additional District Judge, dated 25-4-2003, is set aside and by upholding the order of the learned Rent Controller, dated 22-1-2003, the respondents are granted four months' time to vacate and handover the vacant possession of the demised premises to the appellants.