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Civil Petition for Leave to Appeal No. 27‑R of 1986, decided on 15th February, 1986.
(On appeal from the judgment of Lahore High Court, Rawalpindi Bench, dated 11‑1‑1986, in C.R. 22‑D/86).
‑‑‑S. 13‑‑Ejectment‑‑Termination of tenancy‑‑On terms agreed between parties and reduced in writing in lease deed, either party had .to give notice of termination of lease one month prior to termination of lease‑deed, in absence of which automatic renewal operated‑‑Landlord serving tenant with a notice of ejectment one month prior to termination of period of lease which tenant claimed not a notice expressly referring to refusal of landlord to renew lease‑‑Onus of proof that said notice was not in regard to refusal of renewal not discharged by tenant and original notice in possession and power of petitioner not produced by him before Court below raising thereby a presumption that if same had been produced it would have gone against him‑‑Required notice, held, was served on tenant in circumstances and lease stood terminated on expiry of initial period.
‑‑S. 13‑‑Ejectment‑‑Lease‑‑Renewal of lease by holding over‑‑Trial Court giving a finding of fact that tenant had not paid due rent to landlord after date when lease period under terms of lease‑deed expired‑‑Held, there was no question of holding over of lease, an essential condition of which being that lessor had accepted rent after determination of lease and thereby agreed to continue lease‑‑No other indication was appearing in evidence that respondent landlord accepted tenant as a lessee after expiry of period of lease‑‑Order of ejectment passed by trial Court upheld.
A.G. Chaudhary, Senior Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for Petitioners.
Mahboob Ahmad, Senior Advocate Supreme Court and Imtiaz Muhammad Khan, Advocate‑on‑Record for the Respondent.
Date of hearing: 15th February, 1986.
Petitioner was inducted by the respondent as a tenant in his House No.15, Street 44, F.8/1, Islamabad, on terms agreed between the parties which were reduced in writing in a lease‑deed, dated 31st August, 1980, executed by both parties. The agreed rent was Rs.2,275 per month and the stipulated period of lease, in the first instance was two years automatically renewable for a further period on the same terms and conditions, "if no notification is made by either of the parties one month prior to the termination of the lease".
2. On 30th June, 1983, the respondent brought a suit for possession and mesne profits against the petitioner seeking his eviction, on the ground that the lease had determined after notice, dated 28th June, 1982, served more than a month prior to the expiry of the initial period of lease. The petitioner resisted the suit and contended that the lease stood automatically renewed on the same terms and conditions on the expiry of the initial period of lease as notice in accordance with the terms of the lease‑deed was not served on him. He, however, admitted the receipt of notice, dated 28th June, 1982. An additional plea was also taken by the petitioner to the effect that the lease was renewed on the same terms and conditions by holding over, in that, the respondent had received monthly rent even after the termination of the initial period of lease.
3. On the pleadings of the parties the trial Court framed amongst others the following material issue:
"Whether the notice given by the plaintiff is not in accordance with the terms of lease agreement, if so, its effect OPD."
On the evidence adduced by the parties the trial Court found that the petitioner had admittedly failed to pay due rent to the respondent from August, 1982, and that the notice was admittedly served on him. The suit was accordingly decreed by judgment, dated 19th February, 1985.
4. Being aggrieved the petitioner filed an appeal before the District Judge, Islamabad, which was dismissed by judgment, dated 11th December, 1985. Finally the petitioner sought to challenge the decree passed against him in a revision petition in the Lahore High Court, Rawalpindi Bench, Rawalpindi, which was also dismissed by a learned Single Judge in limine by his judgment, dated 11th January, 1986. Hence this petition for leave to appeal.
5. It is mainly contended by the learned counsel for the petitioner that notice, dated 28th June, 1982, on which reliance was placed by the respondent was not a notice as contemplated by the terms of the lease‑deed notifying the option of the lessor not to renew the lease for a further period. In this behalf reliance has been placed by the learned counsel on a document purporting to be the copy of the said notice which deals with the question of repairs to be carried out by the lessee. The argument is that since this was not a notice expressly referring to the refusal of the landlord to renew the lease, the clause providing for automatic renewal operated by its own force as a result of which the lease stood renewed. It is an admitted position that notwithstanding the fact that the onus of the issue framed On this question was placed upon the petitioner, he did not produce this notice in the evidence, with the result that the Courts below came to the conclusion that as the averments regarding the service of notice were admitted in the written statement by the petitioner, the finding would be against him. We are in agreement with the reasons that have prevailed l with the Courts below that in this state of pleadings, the onus of proof was on the petitioner that notice, dated 28th June, 1982, was not in regard to the refusal of renewal. The original notice was in the possession and power of the petitioner and failure to produce the same before the Court during his evidence raised a presumption that if the same had been produced it would have gone against him. This seems to be the true position because learned counsel for the caveator/respondent submitted that there was another notice of the same date which was the notice intimating the petitioner the option of the respondent refusing to renew the lease, but the same was withheld by him. In any case the document now produced before us cannot be looked into as the same does not form part of the evidence on the record of the trial Court. Be that as it may even this notice does not advance the case of the petitioner as it clearly states as under:‑
"It may also be noted that I have already issued a notice to the P . N . C . A . for the termination of the lease."
We are, therefore, satisfied that the required notice was served by the respondent and the lease stood. terminated on the expiry of the initial period. The only other argument half‑heartedly pressed by the learned counsel was that the lease stood renewed by holding over. As already observed the trial Court gave a finding of fact that admittedly the petitioner had not paid due rent to the respondent from August, 1982, which is the date when the lease period under the terms of the lease‑deed expired. There is, therefore, no question of holding over of the lease, an essential condition of which is that the lessor had accepted rent after the determination of the lease and thereby agreed to continue the lease. There is also no other indication in the evidence that the respondent accepted the petitioner as a lessee after the expiry of the period of lease.
6. For all these reasons, the order of the High Court isle unexceptionable and the petition is accordingly dismissed.
M.Y.H. Petition dismissed.
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