(a) Cantonments Rent Restriction Act (XI of 1963)---
----S. 17---Transfer of Property Act (IV of 1882), S. 107---Registration Act (XVI of 1908), S. 17(d)---Ejectment petition---Lease agreement for a period of ten years not registered---Effect---Lease of immovable property from year to year or for a term exceeding one year or reserving a yearly rent could only be made through a registered instrument, as mandated by S.107 of the Transfer of Property Act, 1882 and S.17(d) of the Registration Act, 1908---In case a lease agreement was so required to be registered but not registered with the Registrar of documents then the lease agreement was bad in law---Consequently, the relationship between such a landlord and the tenant beyond the initial period of eleven (11) months was to be regulated by the provisions of the statute in question i.e. the Cantonments Rent Restriction Act, 1963---Such a tenant became a statutory tenant and the tenancy continued on a month to month basis---In the present case, the lease agreement was for a period of ten years, however it was not registered---Admittedly, the initial eleven (11) months of the tenancy had already lapsed---Tenant was, therefore, a statutory tenant thereafter and the tenancy was to continue on a month to month basis---Plea of tenant that the lease agreement was for a period of 10-years and was not terminable prior to the lapse of the stipulated 7-years was not sustainable and was accordingly repelled---Appeal was dismissed in circumstances.
Messrs Shama Factory, Faisalabad v. Commissioner of Income Tax, Zone, Faisalabad 2006 PTD 178; Habib Bank Limited v. Dr. Munawar Ali Siddiqui 1991 SCMR 1185 and Mst. Rukhsana Bhatti v. K&N'S Foods (Pvt.) Ltd. and others PLD 2013 Lah. 119 ref.
(b) Civil Procedure Code (V of 1908)---
----O. XLI, R. 27---Cantonments Rent Restriction Act (XI of 1963), S.17---Ejectment petition---Appeal---Additional evidence, production of---Scope---In order to be able to produce additional evidence whether oral or documentary at the appeal stage a party was required to establish that the Court against whose decree/order the appeal had been filed refused to admit evidence which ought to have been admitted---Moreover, the appellate Court while exercising its power to allow additional evidence did not normally favour a delinquent litigant---Such power was only exercised in genuine cases---In the present case, the documents that the tenant/appellant was trying to produce at the appellate stage were in its possession and power at the time of the trial of the ejectment petition and the appellant was fully aware of their existence---Explanation that the documents were not adduced in evidence during trial due to mistaken legal advice was, therefore, not tenable---Appeal was dismissed in circumstances.
Rana Abdul Aleem Khan v. Idara National Industrial Co-Operative Finance Corporation Defunct through Chairman Punjab Cooperative Board for Liquidation, Lahore and another 2016 SCMR 2067; Muhammad Tariq and others v. Mst. Shamsa Tanveer and others PLD 2011 SC 151 and Abdul Hameed and 14 others v. Abdul Qayyum and 16 others 1998 SCMR 671 ref.
Syed Muhammad Kalim Ahmed Khurshid for Appellant.
Mian Imran Mushtaq for Respondent.
Date of hearing: 13th September, 2018.
JUDGMENT
MAMOON RASHID SHEIKH, J.----The instant appeal tiled under Section 24 of the Cantonments Rent Restriction Act, 1963, is directed against the ejectment order, dated 16.05.2018, passed by the Addl. Rent Controller, Lahore Cantt., whereby the appellant has been directed to vacate the premises in dispute (H.No.36/2, Khalid Lane, Sarwar Road, Lahore Cantt.) and hand over its vacant possession to the respondent within 30 days.
2.The appellant has also filed C.M.No.2/2018 for adducing, additional evidence. C.M.No.2/2018 shall be decided along with the main appeal.
3.The brief facts giving rise to the appeal are to the effect that, on 11.02.2015, the parties entered into a Lease Agreement (Ex.P2), in respect of the premises in dispute. The tenure of the lease was 10-years commencing 15.04.2015. The rent was fixed as Rs.120,000/- per month.
However, on 09.05.2016, the respondent filed an ejectment petition against the appellant, inter alia, on the grounds that the appellant has defaulted in payment of monthly rent to the respondent w.e.f January, 2016; the appellant has violated the terms and conditions of the lease agreement; and the appellant has violated section 17(2) of the Act ibid., therefore, he is an illegal occupant.
The petition was resisted by the appellant by way of filing of a reply. Out of the divergent pleadings of the parties the Addl. Rent Controller, on 16.11.2016, framed the following Issues:-
"1.Whether the respondent has committed default in payment of monthly rent? OPP
2.Whether the petitioner is entitled for recovery of Rs.300000/- deducted from the rent for renovation of building? OPR
3.Whether the respondent has violated the terms and conditions of rent agreement? OPP
4.Whether the petition is maintainable in its present forum? OPR
5.Whether the instant petition is false, frivolous and filed to harass the tenant? OPR
6.Whether the respondent issued the cheque Nos. 13996234 and No.13996237 on dated 13.1.2016 to the representative of petitioner in term of payment of rent? OPR
7.Relief."
The parties led their evidence for and against the Issues. On the basis of evidence so led the Addl. Rent Controller decided Issues Nos.1 and 3 to 6 in favour of the respondent whereas Issue No.2 was decided in favour of the appellant. As a consequence, the appellant was directed to vacate the premises in dispute in the terms mentioned in Para 1 above.
4.The learned counsel for the appellant submits that the ejectment order suffers from misreading and non-reading of evidence. The impugned order is against the law and contrary to the facts of the case. The Addl. Rent Controller erred in law by not adjusting Rs.1,20,000/-, deposited by the appellant as security, against the monthly rent. Since there is no condition in the Lease Agreement for refund of the security deposit, therefore, the appellant was entitled to the said adjustment under the law. Further submits that the Lease Agreement could not have been terminated prior to the lapse of the stipulated 7-years. Refers to Clause 3 of the mutual covenants reserved in the Lease Agreement. The Addl. Rent Controller further erred in not deciding Issue No.2 in accordance with the law, in that, the appellant spent Rs.500,000/- on renovation of the premises in dispute, however, the benefit thereof was not given to the appellant.
5.Further submits that the respondent received the rent of the property through cheques and direct deposits in her account. The respondent duly acknowledged receipt of the said amounts by putting her signatures on the requisite documents. Submits that the appellant wants to produce the said documents as additional evidence. Further submits that the petitioner also seeks permission to produce as additional evidence the other documents mentioned in C.M.No.2/2018 and also to adduce the evidence of the bank official concerned.
6.Submits that the appellant was precluded from leading the said evidence at the time of trial of the ejectment petition due to mistaken legal advice. As a consequence, C.M.No.2/2018 has been filed for adducing additional evidence. Prays that the appellant may be allowed to produce the documents appended to C.M.No.2/2018 by way of additional evidence. The said documents are essential to the proof of the appellant's case.
7.Relies on the judgments reported as "Superintending Engineer, Lower Bari Doab, Sahiwal v. Messrs Aziz Tanneries Ltd." (1979 SCMR 384), "Muhammad Ijaz Ahmad Chaudhry v. Mumtaz Ahmad Tarar and others" (2016 SCMR 1), "Commissioner Multan Division, Multan and others v. Muhammad Hussain and others" (2015 SCMR 58), "Syed Sharif ul Hassan through LRs v. Hafiz Muhammad Amin and others "(2012 SCMR 1258) and "Iqbal Ahmad and others v. Khurshid Ahmad and others" (1987 SCMR 744).
8.The learned counsel for the respondent supports the impugned order. Submits that it was established on the record that the appellant is a willful defaulter. Further submits that the documents being sought to be brought on the record as additional evidence by the appellant through C.M.No.2/2018 were in the possession as also in the knowledge of the appellant at the time of the trial of the ejectment petition. In view thereof there is no justification under the law for the appellant to submit that it may be allowed to produce the said documents by way of additional evidence. Prays that C.M.No.2/2018 may be dismissed.
9.Relies on the judgment reported as "M Abid v. Ahmed Azad and 96 others" 2017 CLC 59 [Supreme Court (AJ&K)].
10.Heard. Record perused.
11.It is an admitted position that the parties entered into the Lease Agreement, dated 11.02.2015, for a period of 10-years commencing 15.04.2015. It is an further admitted position that the Lease Agreement is not registered. It is settled law that a lease of immovable property from year to year or for a term exceeding one year or reserving a yearly rent can only be made through a registered instrument. Section 107 of the Transfer of Property Act, 1882 and Section 17(d) of the Registration Act, 1908, so mandate. In case a lease agreement is so required to be registered and is not registered with the Registrar of Documents then the lease agreement is bad in law. As a consequence, the relationship between such a landlord and the tenant beyond the initial period of eleven (11) months is to be regulated by the provisions of the statute in question. In other words, such a tenant becomes a statutory tenant and the tenancy continues on a month to month basis.
12.In the instant case, the statue in question is the Cantonments Rent Restriction Act, 1963. Admittedly, the initial eleven (11) months of the tenancy have already lapsed. The appellant was, therefore, a statutory tenant thereafter and the tenancy was to continue on a month to month basis. In view thereof the contention of the learned counsel for the appellant that the Lease Agreement was for a period of 10-years and was not terminable prior to the lapse of the stipulated 7-years is not sustainable and is accordingly repelled.
13.Reliance for the above proposition is placed on the judgments reported as "Messrs Shama Factory, Faisalabad v. Commissioner of Income Tax, Zone, Faisalabad" (2006 PTD 178), "Habib Bank Limited v. Dr. Munawar Ali Siddiqui" (1991 SCMR 1185) and "Mst. Rukhsana Bhatti v. K&N'S Foods (Pvt.) Ltd. and others" (PLD 2013 Lahore 119).
14.I further note that the ground which has proved fatal for the appellant's case is that the respondent was able to establish that the appellant has defaulted in paying the monthly rent of the premises in dispute w.e.f. January, 2016. Having gone through the record I do not find that the Addl. Rent Controller has erred in holding that the respondent has defaulted in payment of rent since the said month. The learned counsel for the appellant has been unable to establish otherwise from the record.
15.As to the arguments of the learned counsel for the appellant that the appellant may be allowed to lead evidence in terms of the prayer made through C.M.No.2/2018, suffice it to say that I am not persuaded by the said arguments. The reasons therefor are to the effect that admittedly the documents in question were in the appellant's possession and power at the time of the trial of the ejectment petition and the appellant was fully aware of their existence. The explanation that the documents were not adduced in evidence due to mistaken legal advice is, therefore, not tenable. Even otherwise, the appellant's witnesses RW-1 and RW-2 admitted that they have no proof that the respondent had received the amounts in question at the relevant time. In such circumstances the stand now taken by the appellant does not appear to be plausible. Moreover, it is settled law that in order to be able to produce additional evidence whether oral or documentary at the appeal stage a party is required to establish that the Court against whose decree/order the appeal has been filed refused to admit evidence which ought to have been admitted. Moreover, the appellate Court while exercising its power to allow additional evidence does not normally favour a delinquent litigant. This power is only exercised in genuine cases. In the instant case, however, the appellant has not been able to establish that he tried to produce in evidence the documents in question or to produce the bank official as a witness during the trial of the ejectment petition. The appellant on the contrary has all along maintained that he was precluded from leading the said evidence due to mistaken legal advice. The said argument in the facts and circumstances of the case is not tenable and is accordingly repelled.
16.Reliance for the above is placed on the judgments reported as "Rana Abdul Aleem Khan v. Idara National Industrial Co-operative Finance Corporation Defunct through Chairman Punjab Cooperative Board for Liquidation, Lahore and another" (2016 SCMR 2067), "Muhammad Tariq and others v. Mst. Shamsa Tanveer and others" (PLD 2011 Supreme Court 151) and "Abdul Hameed and 14 others v. Abdul Qayyum and 16 others" (1998 SCMR 671).
17.Under the circumstances, C.M.No.2/2018 fails and is accordingly dismissed.
18.The learned counsel for the appellant has also been unable to establish that the impugned order suffers from misreading and non-reading of evidence or that it is arbitrary or perverse.
19.The appeal, therefore, fails and is accordingly dismissed.
There is no order as to costs.
MWA/S-23/LAppeal dismissed.
0 Comments