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---Ss. 13 & 15--Provisional Constitution Order (1 of 1981), Art. 9--Points not urged before Appellate Court raised in constitutional petition--Point regarding alleged error committed by Rent Controller in mode of recording evidence was not urged by petitioner before Appellate Court below- Petitioner, held, could not be allowed to raise such point in constitutional petition.

Malik Aman v. Haji Muhammad Tufail P L D 1976 Lah. 1446 and Sh. Muhammad Ashraf and others v. Sh. Muhammad Almas P L D 1981 Lah. 52 ref.

---S. 13--Transfer of Property Act (IV of 1882), S. 107--Registration Act (XVI of 1908) Ss. 17 & 49--Rent agreement- Expiry of term- Non-registration--Effect--Rent agreement in respect of property in dispute was executed only for 11 months and was not got registered after expiry of that term--Rights and liabilities of tenant after expiry of that agreement, held, would be governed by provisions of Ordinance VI of 1959 and not on basis of expired and unregistered agreement-- Document unless got registered would not create any right, title or interest by virtue of mandatory provisions of S. 49 of Registration Act, 1908.

Jogesh Chandra v. Makbul Ali Ch. and others A I R 1921 Cal. 474; Muhammad Aziz Bari v. Maulvi Raziuddin Idris Khan and others AIR 1932 Cal. 423; A.P. Bagchi v. Mrs. F. Morgan A I R 1937 All. 36; Muhammad Yusuf v. Abdullah P L D 1980 S C 298; Niamat Siddiq v. Farooq Umar and 8 others 1984 C L C 969 ref.

- -Ss. 13(3)(a)(i)(a) & 15--Personal need--Concurrent findings- Concurrent findings of fact recorded by Tribunals below regarding personal need of landlord appearing to be justified on record, held, stood . concluded and could not be interfered in constitutional jurisdiction of High Court.

Mian Saeedur Rehman Farrukh for Petitioner.

Sh. Abdul Nasar for Respondents.

Date of hearing: 9th October, 1984.

The petitioner through this Writ Petition seeks a declaration to the effect that the order of the learned Rent Controller, Faisalabad, dated 21-11-1981 evicting the petitioner from a shop and the judgment, dated 7-7-1982 of the learned Addl. District Judge, Faisalabad upholding the order of eviction are without lawful authority and of no legal effect.

2. The respondents Nos. 3 to 10, the successors-in-interest of deceased Shahab-ud-Din filed an application for eviction against the petitioner on 10-12-1979 from Shop No. 53, Ward No. 1, Street No. 1, Mandar Gali, Rail Bazar, Faisalabad before the learned Rent Controller, Faisalabad, which shop was held by the petitioner on a monthly rent of Rs.200. The ejectment was sought on the ground of personal need for running some business.

3. The petitioner resisted the application by maintaining that the predecessor of respondents Nos. 3 to 10 namely Shahab-ud-Din received Rs.17,000 from the petitioner as advance/Pagri. A rent note was executed where it was inter alia stipulated that if the petitioner continued to Pay the rent regularly the predecessor-in-interest of the respondents would not be entitled to seek the ejectment of the petitioner. The rent was enhanced to Rs.225 per month but the respondents Nos. 3 to 10 wanted the enhancement of rent to Rs.400 per month which was not agreed by the petitioner. It was denied that the need of the property for business was bona fide.

4. The learned Rent Controller dealt with issue Nos. 1 and 2 that whether the petition was maintainable and whether the predecessor-in interest of the respondents Nos. 3 to 10 had waived the right to eject the tenant out of the disputed premises, if so that was to what effect, together and found that since the agreement entered into had the effect of restraining a person from enforcing his right through any Court, therefore, under section 28 of the Contract Act any agreement in restraint of legal proceedings was void. The agreement relied upon was executed for 11 months which time expired in 1972 and the condition, thereafter, was no longer binding upon the respondents Nos. 3 to 10. He regarded the clause of the agreement as void and not binding upon the respondents and held that the respondents were not estopped and the application for ejectment was maintainable.

As to the personal need the learned Rent Controller gave his finding that the requirement of respondents Nos. 3 to 10 was for running their own business and that was not mala fide; that was to be a great injustice to respondents Nos. 3 to 10 if they were not given the opportunity of availing their own property. As a result of the above finding the learned Rent Controller ordered the ejectment of the petitioner.

5. Being aggrieved therefrom the petitioner filed an appeal which came to be decided by the learned Addl. District Judge, Faisalabad. The learned Addl. District Judge, observed,

"It is clear from the evidence on record that the respondents Nos. 2 to 6 are real brothers and their father died 4-5 years back and he has rented out two shops owned by him to appellant Abdul Sattar and one Babu, the respondents are running their business on Rehrees and they have no permanent place for carrying on their business. All the respondents being married have children and they would like to have a permanent place for carrying on their business and need of respondents in these circumstances is genuine and bona fide."

As to the agreement the learned Addl. District Judge held that the agreement was executed in 1971 by the deceased and the undertaking was given by the deceased in his personal capacity and any such undertaking would not bind the heirs of the deceased. Any agreement restraining the other party from taking legal proceedings was void and the clause could not be invoked in aid by the petitioners for perpetuating his possession over the property. He upheld the finding of the learned Rent Controller in that behalf, as a result thereof he dismissed the appeal, vide his order, dated 7-7-1982.

6. The learned counsel for the petitioner has contended that the learned Rent Controller committed an error in law in copying out the evidence of the applicants recorded in the ejectment proceedings as to another shop against Babu Khan, in verbatim which has the effect of vitiating the entire proceedings because the learned Rent Controller lacks such a jurisdiction to proceed on and treat the evidence recorded in one case as evidence in one case as evidence in the other. The learned counsel in support of his contention has relied upon Malik Aman v. Haji Muhammad Tufail p L D 1976 Lah. 1446, in this case it was observed that since the learned Rent Controller recorded evidence in one case and copied in verbatim the same in all other cases without giving an opportunity to all the appellants to examine and cross-examine the witness in their cases, therefore, that had resulted in grave prejudice to the case of the appellants. That was also opposed to the principle of natural justice and orders passed by the Courts in that behalf could not be sustained in law. The cases were remanded for the proceedings afresh.

7. The learned counsel for respondents Nos. 3 to 10 in his reply to this contention has submitted that the mode of recording the evidence that way was agreed by the parties. For this he referred to a statement made by the counsel of the parties where the counsel for respondents Nos. 3 to 10 stated that he closed the evidence in affirmative except the evidence of Ghulam Rasool which would be led later on Munshi, Babu and Muhammad Bashir (applicants) were present whom he wanted to examine but the counsel for the petitioner of his own stated that their evidence in law was not necessary and thereafter he would also not raise any objection as to the absence of the statements of rest of the applicants. Instead that would be regarded as if their statements were recorded. This statement was signed on 28-5 1981 by the counsel for the petitioner namely S.A. Khan, Advocate and others as well as the learned Rent Controller. The learned counsel for the contesting respondents relies upon Sh. Muhammad Ashraf and others v. Sh. Muhammad Almas P L D 1981 Lah. 52 in which case the learned Judge has observed that it is no doubt true that in Malik Aman v . Haji Muhammad Tufail P L D 1976 Lah. 1446 also the evidence of both the parties was recorded in one case and copied in verbatim in other six cases. The witness having been subjected to examination and cross-examination in one case only it was held that this was the case where the parties had not been given an opportunity to cross-examine the witnesses in each case separately and the proceedings resulted in grave prejudice to the tenant/appellants. This principle cannot be applied to the facts of the present case in which it appears that there was implied consent of the appellants in the procedure adopted by the learned Rent Controller.

8. The statement of the counsel referred to above by the learned counsel for respondents Nos. 3 to 10 reflects that some sort of arrangement as to the mode of recording the evidence so as to treat a part of the evidence recorded in one case as evidence in the other was accorded to by the parties. There is nothing otherwise to indicate that the counsel for the petitioner anywhere during the proceedings before the learned Rent Controller insisted for recording of the evidence of certain witnesses in the case of the petitioner independently or ever asked the learned Rent Controller for cross-examining the witnesses himself on behalf of the petitioner. However, this point Was never) urged as it appears before the learned Addl. District Judge, Faisalabad, therefore, the petitioner cannot be allowed to raise it here.

9. The second contention of the learned counsel for the petitioner is that the rent note Exh. R.1 has in fact taken away the right of the respondents/landlords to seek ejectment on any ground other than the default as to the payment of rent. The children step into the shoes of their father and inherit the rights subject to liabilities, the agreement is lawful with consideration within the meaning of section 25 of the Contract Act, the agreement is not hit by section 28 of the Act. The learned counsel in relying upon the agreement has maintained that it is a lease for an indefinite period so it prima facie enures for grantee's lifetime if he goes on. paying the rent regularly. In this behalf he has referred to Jogesh Chandra v. Makbul Ali Ch. and others A I R 1921 Cal 474, Muhammad Aziz Bari v. Maulvi Raziuddin Idris Khan and others A I R 1932 Cal. 423 wherein it has been held that the terms of the lease in the case clearly showed an intention to allow the lessee to continue for an indefinite period so long as he paid the rent regularly and performed the other conditions of the lease. The lease, therefore, enured for the lifetime of the lessee.

10. The learned counsel for the contesting respondents has submitted in reply that the petitioner cannot make use of the agreement for any, term exceeding one year unless it is a registered instrument. The agreement as it stands is operative for eleven months. He has referred to section 107 of the Transfer of Property Act which reads:

"A lease of immovable property from year to year or for any term exceeding one year or reserving a yearly rent can be made only by a registered instrument."

He has referred to A.P. Bagchi v. Mrs. F. Morgan A I R 1937 All. 35; in which it has been held that a lease for more than a year and' continuing in perpetuity is not effective without registration; Muhammad Yusuf v. Abdullah P L D 1980 S C 298 wherein it has been observed that an agreement can only be made by the consent of the parties and if any agreement is for a fixed period it comes to an end on the expiry of the agreed period unless it is renewed by the parties. An " agreement of tenancy means an agreement which is in force and not an agreement which has expired and is dead; Niamat Siddiq v. Farooq Umar and 8 others 1984 C L C 969 in which it has been held that under section 17 of the Registration Act in case of a lease for one year or more such documents require compulsory registration. An unregistered document does not create any right, title or interest and cannot be pressed into service for proving such rights etc. for a period exceeding 11 months by virtue of the mandatory provisions of section 49 of the Registration Act. The document is to be regarded as having expired before the expiry of one year of its execution. After the said expiry the tenancy is to continue by virtue of the provisions of the West Pakistan Urban Rent Restriction Ordinance, 1959 and not on the basis of the expired agreement.

11. Viewed in its true perspective the agreement relied upon by the petitioner came to an end in year 1972 on the expiry of its term according to which it was to enure only for 11 months because there was no further renewal. So after the expiry of the agreement the rights and liabilities of the tenant fell to be governed by the provisions of the West Pakistan Urban Rent Restriction Ordinance, 1959 which regulate the terms as to ejectment.

12. The last contention of the learned counsel for the petitioner is that the finding regarding personal need recorded by both the Tribunals is based upon gross misreading of the evidence.

13. Nothing of the sort has been shown from the record. The matter stands concluded by a finding of fact concurrently held by both the Tribunals which appears to be justified on the record. No interference can be afforded within the scope of the Constitutional jurisdiction with that.

14. For the foregoing reasons this petition is dismissed with costs.

H . B . T . Petition dismissed.

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