REHMAT KHAN Versus KHUDA BUX

1. This appeal under section 21 of the Sind Rented Premises Ordinance, 1979, arises out of the order of Rent Controller, dated 22‑2‑1982, granting ejectment of appellant on the ground that the lease agreement existing between the appellant and the respondent ceased to be valid under section 6 of the Ordinance.

2. The ejectment case was filed by the Respondent on ground of causing damage to the property and that the tenancy has ceased to exist. However, before the Controller, only one ground, namely, that the tenancy has ceased to be valid was pressed. The Rent Controller found that the agreement executed by the appellant was valid for only 11 months and after its expiry it was not renewed and therefore, it ceased to be valid under section 6 of the Ordinance and accordingly granted ejectment application of respondent. The learned counsel for the respondent raised the following contentions in the appeal:‑--

(i) It is firstly contended that the appellant being in possession of the premises on the date of commencement of Ordinance XVII of 1979 was outside the mischief of main section 6 ibid;

(ii) That the ground that the tenancy had ceased to be valid under section 6 of the Ordinance was not specifically raised in the application and as such the appellant did not get the opportunity of meeting the point before the Controller; and

(iii) That the application as presented on 21‑2‑1981 was premature as the period of tenancy admittedly expired on 28‑2‑1981.

3. The learned counsel for the respondent on III" other hand contended that the fact that the tenancy agreement expired after 11 months of its execution is clearly and specifically pleaded in the rent application filed by the respondent. He further contended that the agreement of tenancy was admitted by the appellant in his evidence before the Controller and this agreement of tenancy was executed by him after coming into force of Ordinance XVII of 1979 and as such his case did not come within the scope of proviso to section 6 of the Ordinance. In order to dispose of the above contentions of the parties it is necessary to examine here in some details the provision of Sind Rented Premises Ordinance XVII of 1979. The Ordinance was promulgated in the Province of Sind on 21‑11‑1979 and for the first time a landlord became entitled under section 15(2)(i) of the Ordinance to evict his tenant on the ground the tenancy has ceased to be valid under section 6 ibid. Section 6, which was later on omitted completely by an amendment dated 30‑7‑1984, reads as under:‑-

4. "6. No tenancy shall, at a time, be valid beyond such period as the landlord and tenant have, by mutual agreement, fixed before or after the commencement of the tenancy:

5. Provided that nothing in this section shall affect any tenancy existing immediately before coming into force of this Ordinance."

6. A careful reading of the above provision will show that where the landlord and tenant have mutually agreed that the tenancy of a premises will be for a specified period, then the tenancy will not be valid beyond such period. It further provides that such period of tenancy could be fixed by the parties either before commencement of tenancy or after it has commenced. No doubt the proviso to section 6 enacts that where any tenancy existed immediately before commencement of Ordinance XVII of 1979, it will not be affected by the Ordinance but there is nothing in this proviso which restricted the rights of landlord and tenant to mutually agree to a fixed period of tenancy in respect of a tenancy which already exist on the date of commencement of Ordinance XVII of 1979. It was, therefore, permissible for a landlord and his tenant in a case where the tenancy existed between them on the date of enforcement of Ordinance XVII, to enter into a mutual agreement to provide that the tenancy shall be valid for a specified period under section 6 ibid.

7. In the present case the agreement of tenancy which is admitted by both the parties is dated 24‑3‑1980. It is clearly entered by the parties after the enforcement of Ordinance XVII of 1979 and, therefore,) provision of section 6 ibid applied to the case. Para. 5 of the tenancy agreement between the parties reads as under:‑----

8. "5. That on the expiry of 11 (eleven) months (the validity of this agreement) the Lessee shall hand over vacant and peaceful possession of the said running Hair Cutting Saloon to the Lesser directly in good running and perfect condition along with fittings etc."

9. It is an admitted position that one month's notice required in clause 6 of the agreement was also served on the appellant though the period of notice did not coincide with the expiry of agreement of tenancy.

10. The learned counsel for the appellant also contended that the ground of expiry of agreement and tenancy becoming invalid in consequence thereof were not specifically pleaded in the rent application and, therefore, the appellant had no opportunity of meeting this plea before the controller. The argument has not impressed me. The ground that the tenancy was for a specified period only is sufficiently pleaded para. 2 of application which reads as follows:‑

11. "2. That the applicant had established a Saloon in the said premises with all the necessary fittings, fixtures etc. and on the request and at the instance of the Opponent above‑named, "the Applicant let out the said premises to him, on monthly lease/rental basis, vide Agreement, dated 24‑3‑1980 at a monthly rental at Rs.150 per month for a specific period of eleven (11) months only from 1‑4‑1980 and to expire on 28‑2‑1981.

12. The photo copy of the said lease agreement dated 24‑3‑1980 is annexed herewith and marked as Annexure 'A'."

13. From the order of Rent Controller and the evidence led by the he question of validity of tenancy under section parties it is clear that the question 6 of the Ordinance was very much in issue between the parties. In fact, it was argued by the appellant before the Controller that hiss case' falls within the purview of proviso to section 6 ibid and therefore he is not liable to be ejected but this contention was repelled by the Controller. I, therefore, find no substance in the contention of learned counsel. The last contention of the learned counsel for the appellant is that the application for eviction was filed on 22‑2‑1981 while the lease agreement expired on 28‑2‑1981, and, therefore, the application was premature and incompetent on the date of its institution. This contention equally has no force in view of the decisions of Supreme Court in the cases of Rai Muhammad v. Haji Muhammad Zareen 1980 S C M R 339 and Mst. Amina Begum and others v . Mehar Ghulam Dastgir P L D 1978 S C 220. No other point was raised.

14. As a result of above discussion, the appeal fails which is accordingly dismissed but there will be no order as to costs. The appellant is allowed four months time to vacate the premises.

15. H.B.T. Appeal dismissed.