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Civil Petition No. 730 of 1983, decided on 17th August, 1983.
(From the judgment dated 12th October, 1982 of the Lahore High Court passed in Writ Petition No. 135 of 1981).
‑‑ Art. 185 (3) read with West Pakistan Urban. Rent Restriction Ordinance (VI of 1959), S. 13(3) (ii)(c), first proviso Ejectment proceedings‑‑Tenancy for ten years by oral agreement ‑ Leave to appeal granted to consider (i) contention that a valid agreement of tenancy, even for purpose of first proviso to S. 13(3) (ii)(c) of Ordinance, must conform to other laws generally applicable to and governing such agreement such as S. 107, Transfer of Property Act (IV of 1882), and (ii) whether Muhammad Yousuf v. Muhammad Ahmad P L D 1978 Lab. 519 lays down correct law.
National Steel Ltd. Afsar P L D 1979 S C 819 ref.
Awan Muhammad Hanif Khan, Advocate Supreme Court instructed by Sh. Abdul Karim, Advocate‑on‑Record for Petitioners.
Nemo for Respondents.
Date of hearing : 17th August, 1983.
The petitioners' plea for ejeciment of respon dent No. 1 tenant for bona fide personal use was successfully resisted by the latter on the ground that the tenancy, which was by oral agreement for ten years was still subsisting and as such the ejectment application was barred by the first proviso to subsection (3) (ii)(c) of section 13 of the Rent Restriction Ordinance. In their challenge before the High Court in its constitutional jurisdiction, the petitioners had disputed the applicability of the said proviso in view of the provision of section 107 of the Transfer of Property Act which requires that a lease of immovable property for any term exceeding one year can be made only by a registered instrument. The learned Judge repelled the contention with the observation that :‑
"This controversy, however, need not detain me for in view of the commanding language of subsection (1) of section 13 of the Rent Restriction Ordinance, which expressly prohibits the ejectment of a tenant except in accordance with the provisions of this Statute, such tenancies are no longer governed by the Transfer of Property Act."
In this regard he also relied on Muhammad Yousaf v. Muhammad Ahmad (P L D 1978 Lah. 815) wherein an eviction application having been filed before the expiry of the period of five years which was the period of the tenancy was held to be premature and barred by the proviso.
2. In National Steel Ltd. v. Afsar (P L D 1979 S C 819), where the question of the ejectment application having been filed before the expiry‑of the lease period had been raised at a belated stage in the High Court, this Court bad disposed of the objection in the following works :‑,
"There is no substance in this contention for it had been raised before the Rent Controller the respondent would still have had an opportunity of filing the application on the expiry of the period and since eight years have now elapsed, we do not see any propriety in entertaining this objection at this belated stage which would lead to injustice in the respondent particularly when she could have otherwise rectified the defect."
The applicability of section 107 of the Transfer of Property Act or any other law had not come for discussion there.
3. The contention is that while a tenant in possession cannot it be evicted except in accordance with the provision of the said Ordinance, it does not mean that in construing the validity of an agreement of tenancy, the appli cability of other laws, otherwise relevant to such agreement, stands also excluded. It is, therefore, urged that for a valid agreement, even for the purpose of the proviso, it must conform to the other laws generally applicable to and governing such agreement, such as section 107 of the Transfer of Property Act.
4. We are inclined to the view that the point raised requires considera tion by this Court, as also whether Muhammad Yousaf v. Muhammad Ahmad (supra) lays down the correct law. Security Rs. 2,500. The appeal shall be heard on the present record and shall be listed for hearing in November this year.
S. Q, Leave granted.
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