KASSIM ALI Versus PAKISTAN BURMAH SHELL LIMITED

1. The predecessor of appellants‑‑the owner of plot bearing Survey No. 439, Garden West, Nishter Road, Karachi, had let out its portion measuring 93.5 ft. x 100 ft. to the respondents on payment of rent of Rs.1,5000. per month through registered agreement. The portion of the plot let out to the respondents was given a sub‑divided No. 439/1.

2. The rent agreement was registered on 15th March, 1962 while the tenancy commenced with effect from 20th June, 1961. The agreement contained a clause that the Respondents shall have two consecutive options to renew the lease for a further period of 10 years on expiry of the each period on the terms and conditions mutually agreed upon between the parties.

3. On expiry of initial period of 20 years the opponents exercised their first option for renewal of the lease of the plot for another period of 10 years commencing from 20th June, 1971. This agreement was registered on 27th September, 1973:

4. In the second agreement the rent was increased to Rs. 2,000 per month. The second agreement contained similar clause allowing two options for renewal for 10 years each time. Accordingly, the term of the lease was to expire in the year 1991.

5. The appellants filed an application for ejectment of the respondents from the rented premises (plot) on the following two grounds:‑

(1) That the condition of renewal of the lease for subsequent two periods was not bona fide as it was not known to the appellants.

(2) That two of the appellants needed the plot in question for their personal bona fide use. The remaining appellants had allowed the two to use the plot for their use.

6. The assertions made by the Appellants in the ejectment application were denied and the Rent Controller settled the following three issues:‑

7. "(1) Whether the present ejectment application is maintainable?

(2) Whether the applicants require the premises for personal use of applicants Nos. 4 and 6 bona fidely?

(3) What should the order be?"

8. Appellants examined one of the appellants, who produced certain documents. Appellant ' No.4 was also examined . in support of the application.

9. Mr. Farhat Ali Khan was examined on behalf of the respondents who produced certain letters from the appellants.

10. The Rent Controller on the basis of evidence recorded his findings on the first two issues in the negative and dismissed the application by his judgment passed on 23‑9‑1987. It is against this judgment that the present appeal has been filed.

11. Mr. Nisarally, Advocate for the appellants, contended as follows:‑

(i) That after 1981 lease deed was never registered and, therefore, after 1981 the relationship between the parties was to be governed by the Sindh Rented Premises Ordinance, 1979.

(2) The second period of option has expired during the pendency of appeal, therefore, the Court can take note of the changed situation.

(3) Personal bona fide need of the two appellants has been proved by evidence, which has not been considered by the Rent Controller in correct perspective.

12. In support of his contentions Mr. Nisarally, Advocate for the appellants, relied on the cases reported in PLD 1984 SC 38, PLD 1985 SC 148, 1984 CLC 969, 1991 SCMR 1185, PLD 1978 SC 220, PLD 1964 SC 106; 1986 PLC 735, 1980 SCMR 339, 1992 SCMR 1152, 1989 SCMR 1356, 1981 SCMR 895 and 1992 MLD 1155.

13. Syed Amjad Hussain, Advocate for the respondents, contended as follows:‑

(i) That major portion of the plot is in possession of the landlords and personal requirement, if. any, can be satisfied out of it. Besides, according to him, requirement of the two appellants is not bona fide.

(2) Some of the appellants examined in the case have admitted that if the rent was increased from Rs.2,000 to Rs.8,000 per month no case might have been filed by the Appellants. The assertion of bona fide use is therefore mala ride.

(3) Throughout the correspondence entered into with the respondents, the appellants, never indicated their personal requirement.

(4) That the application has been filed prematurely as the period of tenancy would expire in 1991 while application for ejectment has been filed in 1985.

(5) That the two appellants are admittedly agriculturists and working in Sabzi Mandi. Their claim to start motor repair workshop is not supported by any evidence.

14. Syed Amjad Hussain, Advocate for the Respondents, referred to the cases reported in PLD 1971 SC 82, PLD 1965 SC 698 and PLD 1988 SC 191.

15. The Appellants had mainly contended before the Rent Controller that on expiry of the lease agreement in the year 1981 and in absence of fresh registered agreement renewing the lease for further period of 10 years clearly indicated that Appellants were not ready to renew the lease. Appellants raised a plea of personal bona fide use. The Rent Controller after carefully examining the evidence and law concluded that in fact the rent agreement was valid for a period of 30 years expiring in the year 1991 and the application was filed prematurely in the year 1984. He was also not satisfied with the assertion that the two of the Appellants needed the premises for their personal bona fide use and accordingly he rejected the application.

16. I have gone through the entire record. In fact, the Appellants wanted to lead evidence contrary to the written agreement which they cannot be permitted to do so as not warranted under the Oanun‑e‑Shahadat. The Appellants had been hasty in filing the ejectment application ahead of time and the application was rightly rejected on this ground. So far as the personal requirement of two of the Appellants is concerned, the evidence shows that the application for ejectment would not have been filed if the Respondents had increased the rent to Rs.8,000 per month. This clearly indicates that the requirement of the two Appellants is not bona fide. Most of the cases referred to by Mr. Nisarally, Advocate for the appellants, had already been considered by the Rent Controller in his judgment and do not need recapitulation.

17. The period of lease has since expired during the pendency of appeal. Mr. Nisarally, Advocate for the Appellants, wanted this Court to consider.this fact and order ejectment. He referred to the cases reported in PLD 1971 SC 82 and PLD 1965 SC 698.

18. There appears to be no force in this appeal for the reasons mentioned above and it is dismissed.

19. It well, however, be open to the Appellants to file a fresh application for ejectment as the period of lease has since expired and if so advised.

20. H.B.T./K‑336/K Appeal dismissed.