IN THE HIGH COURT OF SINDH BENCH AT SUKKUR
C.P No.S-3305 of 2014
Petitioner M/s Telenor Pakistan (Pvt) Ltd through Mr. Sajjad Muhammad Zangejo advocate
Respondents Mst.SurreyyaKhatoon through Mr. Faisal Naeem Advocate
Date of hearing : 27.01.2016
ORDER
SHAHNAWAZ TARIQ,J:- Through captioned Constitution Petition, M/s Telenor Pakistan (Pvt) Ltd has impugned order dated 20.03.2013, passed by the Court of learned Ist Rent Controller, Sukkur, whereby Rent Application No. 20 of 2012, filed by respondent was allowed, and order dated 30.09.2014, passed by the Court of learned Additional District Judge (H), Sukkur, wherebyFirst Rent Appeal No.3 of 2013, filed by the petitioner, wasalso dismissed.
2. Necessary facts narrated in instant petition are that petitioner is a Company incorporated and engaged in business of Private Telecommunication Service with the name and style of M/s Telenor Pakistan Limited. Respondent Mst. Surreyya Khatoon filed rent application being owner of demised premises comprising of upper floor bearing CS No.B-2583/1/A, alongwith stair-case leading to the upper floor situated at Clock Tower, Sukkur (hereinafter referred to asthe demised premises). Previously demised premises was a joint and un-partitioned property, but subsequently, it was partitioned in accordance with law and respondent became exclusive owner of demised premises. Prior to the partition of demised premises, respondent alongwith other co-owners namely Mst. Jannat Rohi, Mst. Shahbaz Begum and Mst. Rana Jehan, through their attorney namely Mst. Jannat Rohi executed lease agreement dated 17.11.2007 (hereinafter referred to asthe saidrent agreement), with petitioner on advance payment of rent commencing from 17.11.2007 to 16.11.2008 on yearly rent of Rs.1,80,000/-, with its renewal till expiry on 16.11.2022. In the said rent agreement, it was also agreed in Clause 2(ii) that yearly rent shall be increased by 7% on expiry of every calendar year. Said rent agreementwas neither renewed by the parties nor was registered. The demised premises where petitioner has installed Mobile Cellular Tower and equipments for the purpose of establishing Micro Base Transceiver Station, is the roof of upper floor of premises and after partition of the property, respondent has become its exclusive owner and is lawfully entitled to deal with all affairs of the demised premises independently. Respondent served mandatory notice as required U/s 18 of Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as the SRPO, 1979), on 06.12.2010. In said notice it was also intimated to petitioner that power of attorney in favour of Mst. Jinnat Rohi is rectified/cancelled on 03.11.2010. Petitioner had paid rent in respect of demised premises for the 03 years and defaulted for the next 2 consecutive years anddefaulted in payment of rent to the tune of Rs.220,507/- and Rs.235,942/- respectively.
3. Petitioner filed written statement and denied all the averments of rent application and stated that the matter neither falls within the ambit of rent case nor is triable by the Court of Rent Controller according to law. The lease executed between the parties is lease in perpetuity, hence only suit for specific performance lies U/s 27-A of the Specific Relief Act, 1877. Civil appeal filed by petitioner against the respondent is still pending in the Court of learned II-Additional District Judge, Sukkur, hence rent application is also barred U/s 3 of the SRPO, 1979, and Section 27 of Pakistan Telecommunication Re-organization Act, 1996.No written agreement was executed between the parties and respondent is willfully avoiding to executerent agreement with petitioner to pay her due rent. The initial rent agreement executed between the parties is still intact and will remain operative for 15 years. After change of ownership, petitioner sent addendum papers to rectify and execute the terms of rent agreement but respondent refused to sign the same and failed to execute fresh rent agreement. As per terms of lease agreement, the tenant cannot be evicted from the demised premises. No cause of action to respondent has ever accrued against the petitioner; hence rent application is liable to be dismissed.
4. Attorney of respondent namely Saifullah filed his affidavit in evidence in support of the rent application vide Exh:49 who produced original General Power of Attorney, true copy of Extract from the Property Register Card, attested photo copies of lease agreement and legal notice for change of ownership. In rebuttal on behalf of the petitioner, Syed Usman Ali Bin Tahir, Real, Estate and Site AcquisitionExecutive filed his affidavit in evidence.
5. From the pleadings and evidence adduced by the parties, learned Rent Controller framed the following points for determination:-
1. Whether there is relationship in between the applicant and opponent as Landlord and tenant?
2. Whether the demised premises is hotel or not?
3. Whether the opponent is defaulter in payment of rent?
4. Whether the demised premises is required for the personal bonafide use by the applicant?
5. What should the order be?
6. Learned counsel for petitioner, inter alia, contended that instant rent application is barred bySection 27 of Pakistan Telecommunication (Re-organization) Act, 1996, Section 3 of SRPO, 1979, and Section 27-A of Specific Relief Act, 1877; that impugned orders passed by both the Courts below are illegal, unlawful and have been passed without considering the record properly; that rentagreement was executed for 15 years, whichwill expire on 16.11.2022, thus landlady cannot file ejectment application prior to the expiry of said period; that clause XII of the said rent agreement provides protection to the interest ofpetitioner for the lease period;that petitioner hadreceived notice for change of ownership of the demised premises,but no demand was raised for requirement of the demised premises for the personal bonafide use; that petitioner tendered rent with addendum paper which was requirement of the terms and condition of the said rent agreement but she refused to sign the same; that respondent intends to execute a fresh lease agreement on her own terms and conditions as mentioned in her legal notice; that respondent had admitted in evidence that demised premises is part and parcel of a Hotel, which was in running position at the time of execution of agreement and transfer of property in her favour,but these facts have not been mentioned in therent agreement; that learned Courts below have passed findings on assumption and presumption; hence rent application as well as first appeal are liable to be dismissed.Learned counsel relied on 1996 SCMR 1767, 1992 SCMR 1457, PLD 1980 SC 298, PLD 2012 SC 764 and PLD 2004 Karachi 17.
7. Learned counsel for respondent,at the very outset, contended that respondent does not press the ground of default of the rent and same may be treated as withdrawn.Learned counsel further emphasized that previously the demised premises was a joint property which was let out to the petitioner through the attorney of all the co-owners, but subsequently, same was partitioned amongst them, and respondent became exclusive owner of the demised premises; that respondent served written notice for change of ownership U/s 18 of the SRPO, 1979, and petitioner was directed to execute rent agreement with respondent within 15 days, but petitioner deliberately avoided to execute such agreement; that neither the first rent agreement was registered as provided under Registration Act nor the same was renewed;that there are concurrent findings infavour of respondent for her personal bona-fide need which could not be defeated on the basis ofan un-registered rent agreement; that after partition of the building, the demised premises i.e. stairs and roof are required for personal bonafide use of the respondent and her family members.
8. Firstcontention raised by learned Counsel for appellant regarding non-maintainability of the rent application underthelaw.It would be advantageous to examineSection 27 of Pakistan Telecommunication (Re-organization) Act, 1996, which is re-produced as under:-
“S.27- Privileges of licencee of public switched network: (1) Every licencee of public switched network shall subject to the conditions of the licence, be entitled to such rights and privileges as were available to the Federal Government and the Corporation on the commencing day in respect of telecommunication services and telecommunication system under the Easements Act, 1882 (V of 1882), Telegraph Act, 1885 (XIII of 1885), the Pakistan Telecommunication Corporation Act, 1991(XVIII of 1991), or an other law for the time being in force.
(2) For the purpose of the Land Acquisition Act, 1894 (1 of 1894) acquisition of land or any interest in land by a licensee of public switched network for the purposes of the licence shall be deemed to be acquisition for a “public purpose”.
Perusal of Section 27 ibid, it is crystal clear that applicability of provisions of the SRPO, 1979, has neither been restricted nor barred, hence Section 27 of Pakistan Telecommunication (Re-organization) Act, 1996, is not controverting to the maintainability of instant rent application.
Section-3 of the SRPO, 1979,deals with the applicability of the Ordinance, which emanates that all the premises other than those owned or requisitioned under any law by or on behalf of Federal Government or Provincial Government situated within the urban area, shall be subject to the provisions of the SRPO, 1979.Nevertheless, the demised premises in the present petition was never owned or requisitioned by the Federal Government or Provincial Government,hence instant rent application is not barred by S.3 of the Ordinance.
Section 27-A of Specific Relief Act, 1877, deals with specific performance in case of part performance of the contract to lease for immoveable property is made in writing and signed by the parties,but the section does not put any embargoregarding execution of rent agreement executed between the parties pertaining to any premises, hence instant rent application is not hit by section 27-A of Specific Relief Act, 1877. Considering the discussion made supra, instant rent application is not barred by the above referred laws.
9. Next contention raised for the period of tenancy and protection provided by virtue of the rent agreement, it would be beneficial to examine Clauses V and VI of para No.1 and Clause XII of paraNo.3.
Perusal of clause V ibidreflects that the lessee shall at its sole option and without the need to assign cause, terminate the lease deed during the initial term or any renewal thereof, upon 30 days’ prior written notice, whereupon the lessor shall refund to lessee, within 14 days of the receipt terminating the lease.
Perusal of clause VI ibid reflects that lessee shall vacate the demised premises upon the expiry of 30 days’ notice period. Lessee shall not be required to vacate and to continue its possession over the demised premises until such time the unutilized rent paid in advance has been refunded to the lessee by the lessor, provided further, that any advance rent not refunded in accordance with this clause, lessor shall bear a mark-up at the rate of 20% per annum for the days it remains un-refunded. Per Clauses V and VI of the rent agreement, the tenancy can be revoked by the tenant at any time with issuance of 30 days’ notice. Conclusively, the stance taken by the lessee that tenancy is irrevocable in view of lease in perpetuity and lessor cannot claim eviction of the lessee, is self-contradictory and devoid of any legal substance.
PerClause XII ibid, the rent agreement, the lessor shall not sell, gift, transfer, mortgage or convey the property or the demised premises to any third party, or create or allow the creation of any third party interest or right in the property or demised premises, during the initial term or any renewal thereof, without the prior written consent of the tenant.
Consequently, I am of the considered view that Clauses V, VI of para No.1 and Clause XII of para No.3 of the rent agreement are not only derogatory to the rights of the landlady but also contrary to the provisions of the SRPO, 1979, and utter violation of the fundamental rights of the landlady guaranteed by the Article 23 of the Constitution of Pakistan, 1973, thus same are not enforceable.
10. Perusal of record emanates that Mst. Shahab Begum, Mst. RanaJahan, Mst. Jannat,Mst. Jannat Rohiand Mst. Surreyya through co-owner and their attorney Mst. Jannat Rohi entered into the rent agreement with petitioner on 17.11.2007 for the period of 15 years and parties agreed for the tenancy w.e.f 17.11.2007 to 16.11.2022, with its renewal and increase of 7% annual rent for the demised premises. Subsequently, on the change of ownership of the demised premises in favour of respondent by the remaining co-owners, she served mandatory written notice as required U/s 18 of the SRPO, 1979, whereby petitioner was requested for execution of fresh rent agreement within 15 days, and pursuant to the said notice, petitioner transmitted addendum papers containing terms and condition for signatures to the respondent,which prima facie proves that the tenancy was subject to renewal of written agreement between the parties.Indeed, petitioner did not resist the execution of fresh tenancy agreement on the strength of earlier rent agreement but extended its willingness for fresh rent agreement, thus in manifestation of offer of petitioner being a tenant for execution of new rent agreement between the parties,has invalidated the plea of the tenant that earlier rent agreement was lease in perpetuity,nevertheless tenant has bartered away his right of tenancy, hence petitioner could not enjoy hot and cold as the same time.
11. It is well settled that a lease for a fixed period revocable under a written notice by either party is not a lease in perpetuity within the ambit of provisions of Transfer of Property Act,1882.
Section 17(d) of the Registration Act, 1908, requires compulsory registration of any instrument or lease agreement for tenancy executed between landlord and tenant for a period exceeding one year. Section 107 of the Transfer of Property Act, 1882, provides that a lease of immovable property from year to year or for any term exceeding one year or reserving a yearly rent can only be made by a registered instrument. Section 49 of Registration Act provides for effect of non-registration of documents,that no document required to be registered shall operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, to or in immovable property. Indeed, the un-registered lease agreement is not a legal document of the nature nor creates lease in perpetuity.Such unregistered deed is inadmissible in evidence.
In case of Habib Bank Limited v. Dr. Munawar Ali Siddiqui (1991 SCMR 1185),the honourable Supreme Court has observed as under:-
“6. At this juncture, it may be pertinent to deal with the question, whether a lease in perpetuity can be created by a lease agreement, and if not, what rights the petitioner acquired under the lease agreement in issue. In this behalf, it may be pertinent to refer to section 107 of the Transfer of Property Act, 1882, and sections 17(d) and 49 of the Registration Act. Above section 107 of the former Act inter alia provides that a lease of immovable property from year to year or for any term exceeding one year or reserving a yearly rent can only be made by a registered instrument, whereas section 17(d) of the latter Act requires compulsory registration of the Lease of the nature covered by section 107 of the former Act. Section 49 of the latter Act provides for effect of non-registration of documents required to be registered as follows:-
“No document required to be registered under this Act or under any earlier law providing for or relating to registration of documents shall,
(a) Operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, to or in immoveable property or,
(b) Confer any power to adopt, unless it has been registered”.
It may be advantageous at this stage to refer to the case of DarbarilalMudi and others v. Raneegano Coal Association Ltd., reported AIR 1944 Patna 30, in which a Division Bench of the Patna High Court held that a permanent lease, which has not been created by a registered instrument, is void under the provisions of section 107 and the tenancy is under section 106 deemed to be a lease from month to month terminable either on the part of the lessor or the lessee by 15 days’ notice. We are, therefore, of the view that the lease agreement, the copy of which has been filed with the above petition for leave, is not a legal document of the nature, on the basis of which the petitioner could have acquired lease in perpetuity. We may also point out that a covenant for perpetual renewal being a serious derogation from the right of the landlord is to be proved strictly. There must be unequivocal and unambiguous ground for holding that a lease containing such a covenant cannot otherwise be held to exist. In this regard reference may be made to the case of Maharaja Srish Chandra Nandi v. Doa Mohammad Byapart and others, reported in AIR 1939 Cal. 77, wherein a learned Single Judge of the Calcutta High Court inter alia observed that leaning of the Court is always against perpetual renewal and that in order to establish that there was covenant of perpetual renewal and that in order to establish that there was covenant of perpetual renewal, the intention must of unequivocally expressed. The case of Khayali v. Hussain Bakhsh and another, reported in 1886 ILR Allahabad Vol. VIII, page 198 is also pertinent to the point in issue.”
In the case of Muhammad Shafi Choudhary v. Saeed Ahmed (1996 SCMR1784), the honourable Supreme Court has observed that as follows:-
“S.15. Application for ejectment of tenant,tenant resisting ejectment application on the plea that he being lease holder in property was not liable to be ejected. Lease for more than one year was required to be registered while lease in question was an unregistered deed. Lease agreement purporting to create a lease in perpetuity without specifying any period being repugnant to provisions of the Ordinance would not be enforceable.”
In the case of Muhammad Rafique v. Messers Habib Bank Limited (1994 SCMR 1012), the honourable Supreme Court has observed as under:-
“Ss. 5 & 15. Bona fide personal need of the landlord. Unregistered tenancy agreement for a period of five year. Nature of right created by such agreement. Tenancy agreement purported in fact to create a lease in perpetuity but as the same was not registered, a statutory tenancy came into existence under the Sindh Rented Premises Ordinance, 1979, as the landlord accepted the rent from tenant from time to time. Rights of the parties, thus, were to be regulated under the provision of the Ordinance and not under the tenancy agreement, which was not a legal enforceable document. Landlord, therefore, could not be non-suited while relying upon the clauses of such agreement without enquiring into the question whether factually the landlord was able to prove his bona fide personal need on the basis of evidence.”
Adverting to the merits of instant petition,undeniably, the lease agreement executed between the parties was not registered as contemplated under Section 17 (d) of Registration Act, 1908, thus petitioner could not agitate its rightof tenancy for the period of 15 years on the basis of an unregistered rent lease deed.
12. So far as the contention raised regarding filing of rent application through attorney,it is well settled that tenant could not challenge the validity of power of attorney executed by the landlord in favour of his attorney to file rent application, it is exclusive prerogative of the landlord beingprincipalto controvert the authority of his agent.In present case landlady did not challenge the authority of her attorney, thus being anagent, herattorney has been permitted to do every lawful act which is essential in order to achieve the subject purpose, and every act done by the attorney shall be deemed to be done by the landlady. In the case of Master Enterprises(PVT) Ltd v. Additional District and Sessions Judge, Karachi South and 2 others (2012 CLC 1532), it was held as under:-
“Contention of the tenant was that the ejectment petition was filed by an unauthorized person. Section 188 of the Contract Act, 1872, stipulated that the agent had the authority to do every lawful thing which was necessary in order to do such act, and the person through whom the case had been filed, was authorized to do so and pursue the case. Ejectment case was filed with the authorization of the principal. No objection had been raised by the principal/landlord company; which showed that they had ratified the act of filing the ejectment case. While the leading of evidence and cross-examination tenant had not raised any point with regard to the authority of the said person. Constitutional petition was dismissed.”
13. While dealing with the question of personal bonafide requirement of the demised premises, admittedly, the averments of rent application have been verified by respondent through her attorney who filed his affidavit-in-evidence, maintaining the requirement of demised premises for personal bona-fide need of respondent, and during cross examination said statement on oath remained quite consistent with the averments of ejectment application.Neither said statement was shaken nor any thing adverse was brought in evidence to contradict the personal bona-fide requirement of respondent for the demised premises. Inthe case of Iqbal Book Depot and others v. Khatib Ahmed and 6 others (2001 SCMR 1197), the honourable Supreme Court has observed that sole testimony of the landlord is sufficient to establish his personal bona-fide need for the demised premises, and if the statement of landlord on oath was quite consistent with the averments made in ejectment application and neither his statement was shaken nor any thing was brought in evidence to contradict his bonafide requirement that would be considered sufficient for acceptance of the ejectment application.
14. It is well established that personal bona-fide need of the landlord for any specific premises couldor frustrated by the tenant by dictating the landlord to use or not use any specific premises to meet his bona-fide requirement for a premises. Landlord has a right to select and choose any of specific premises for his personal bonafide requirement and no restriction or embargo can be imposed upon such requirement by the tenant. In the case of S. M. Noorddin and 9 others v. Saga Printers (1998 SCMR 2119),the honourable Supreme Court has observed that landlord has a complete option to choose from one of the several tenements occupied by tenants to avail of the personal requirement and the discretion is not assailable, except in the rarest cases of bad faith. In the case of Jahangir Rustam Kakalia through legal heirs v. M/s Hashwani Sales & Services (PVT) Ltd (2002 SCMR 241), the honourable Supreme Court has observed that respondents being owner and landlord of the demised premises could not be deprived of their right and interest to use their property in a manner more suited to their requirements. No unreasonable restrictions can be placed on the exercise of right by landlord which would offend the fundamental rights guaranteed under Article 23 of the Constitution. In the case of United Bank Limited v. Mrs. Alafia Hussain (1999 SCMR 1796), the honourable Supreme Court has observed that landlord though had undertaken that he would not seek ejectment of tenant on any ground and even on ground of personal requirement so long as the tenant continued to pay monthly rent, but after expiry of lease agreement, when no other agreement had been executed by parties, relationship between parties would be governed purely by the Statute. Renewal clause in a lease agreement purporting to create a lease in perpetuity without specifying a period and thereby depriving landlord from filing ejectment application on ground of personal requirement in future, could not be enforced being repugnant to scheme of Sindh Rented Premises Ordinance, 1979.
15. There are concurrent findings of both the Courts below in favour of the respondent for requirement of the demise premises i.e. stairs and roof of the building, which could not be interfered in absence of any cogent reason by invoking the Constitution petition of this Court.
16. As the sequel of discussion of the facts, circumstances and case law referred supra, I have no hesitation to conclude that respondent has succeeded to prove her personal bonafide requirement in good faith. Petitioner has failed to point out any serious illegality,material infirmity or dis-appreciation of evidence adduced by the parties while passing impugned orders. Consequently, impugned concurrent findings passed by both the Courts below do not deserve for any interference, hence same are maintained and instant Constitutional petition stands dismissed. However, petitioner is directed to vacant and handover peaceful possession of the shops in question to respondent No.1 in 90 days positively, and in case of failure which learned trial Court shall issue writ of possession directly with police aid without issuing any notice to the petitioner, as the matter is sub-judice since the year 2006.
These are the detailed reasons for the short order dated27.01.2016, whereby instant Constitution Petition was dismissed.
JUDGE
Akber