Find a Lawyer

Present: Aslam Riaz Hussain, Nasim Hassan Shah, Zaffar Hussain Mirza and M. S. H. Qureshi, JJ

Civil Appeal No. 53‑K of 1985, decided on 10th September,1985.

(On appeal from the judgment, dated 19‑8‑1984, of the High Court of Sind Kara‑chi in F.R.A. No. 371 of 1983).

Rented Premises Ordinance (XVII of 1979)‑‑

‑‑‑‑S, 15 (2)(vii)‑‑‑Ejectment‑‑Personal requirement‑‑Maintainability of application during subsisting lease agreement between parties‑‑Lease deed initially for 11 months‑‑Renewable at option of tenant subject to one month's prior written notice‑‑Tenant claiming that lease being in nature of perpetuity, renewable at the exclusive option of tenant, landlady had waived her right of claiming possession even on ground of bona fide requirement‑‑Required notice not having been given, period of extended lease stood expired and lease agreement ceased to be effective‑‑No valid tenancy subsisting when ejectment application was filed‑‑Plea that time not being essence of requisite notice for exercise of option by tenant for renewal of tenancy and option having been exercised before expiry of lease period, tenancy stood renewed even though thirty days clear notice was not given, repelled‑‑Option for renewal of lease must be exercised strictly within time limit for purpose otherwise it will lapse‑ ‑Ejectment order upheld and appeal dismissed.

Mrs. Zehra Begum v. Messrs Pakistan Burmah Shell Ltd. P L D 1984 S C 38 distinguished.

Halsbury's Laws of England,, Vol. IX (Fourth Edition), para. 483 cited.

(b) Sind Rented Premises Ordinance (XVII of 1979)‑‑

‑‑‑S.

15(2) (vii) ‑‑Ejectment‑‑Bona fide personal need‑‑Concurrent finding of fact by two Courts below‑‑Supreme Court declined to interfere with concurrent finding of fact‑‑Appeal dismissed.

Khalid M. Ishaque, Advocate Supreme Court and A . Aziz Khan Advocate‑on‑Record for Appellant.

H . A . Rehmani, Advocate Supreme Court and M . Shabbir Ghaury Advocate‑on‑Record for Respondent.

Date of hearing: 10th September, 1985.

‑‑The facts, which form the background of this appeal, have been accurately summed up in the judgment of the High Court and it appears there from that the appellants acre a partnership firm carrying business of a snack bar in a commercial premises situated in Delhi Mercantile Co‑operative Housing Society, Tipu Sultan Road, Karachi. These premises were rented out to the appellants vide an agreement of tenancy, dated 29th September, 1972, et Rs.625

per month. In 1976, the rent was increased by Rs. 225 so as to include water, gas and electric charges; that total rent being Rs.85u per month.

2. According to the Lease Agreement the tenancy was for 11 months in the first instance it was renewable for 11 month b at a time at the option of the tenant (the appellants herein) on one month's clear notice. The clauses of the Agreement relevant for purposes of decision of this appeal are clauses 5 and 19. These are in the following terms:‑

"5. That the period of lease and rent shall commence with effect from 1st day of October, 1972. The lease shall be initially for eleven months always renewable at the option and written request of the Lessee for not more and not less than eleven months at a time.

19. The Lessee hereby agree and undertake to give one month's clear notice in writing to the Lessor for exercising their renewal options or of their intention to vacate the demised premises."

3.It appears that the period of tenancy was extended from time to time at the option of the appellants in pursuance of the above‑mentioned clauses of the Agreement upto 28‑2‑1979, but no extension was sought beyond 28‑2‑1979, by the appellants by giving one month's clear notice. The respondent thereupon filed an ejectment application on 30th May, 1979, alleging that her son Waseem Ahmed, who was a minor at the time of the lease agreement, had attained maturity and wanted to start a super market in the premises in question and thus she required the rented premises bona fide for use of her son for commercial purposes. It was also alleged by the respondent that the appellants had sublet the premises without her consent.

4. In their written statement the appellants denied that the premises have been sublet or that the same were required by the landlord for the personal use of her son. It was also pleaded that before the expiry of the last extended period of lease i.e. 28‑2‑1979, the appellants had made a written request for extension of the lease in pursuance of clauses 5 and 19 of the Agreement and as such the ejectment application was not maintainable.

On the pleadings of the parties the following issues were struck by the learned trial Court:‑

"(1)Whether the application is maintainable in law

(2)Whether the opponent has sublet the premises without the consent of the applicant

(3) Whether the applicant requires the demised premises for the use and occupation of her eldest son namely Waseem Ahmad Shafi

(4) What should the order be "

5. After recording evidence of the parties the learned Court found that Issue No. 1 had not been pressed by the tenants (the appellants herein) and stood dropped; that no evidence was due to establish that the demised premises had been subletted by the tenants hence it was decided against the respondent, as not proved. However, as regards the third issue the learned trial Court found that the landlord (respondent herein) did require the demised premises for her son Waseem Ahmad Shafi in good faith and, accordingly, decided Issue No. 3 in her favour. In view of the said finding he allowed the application and ordered the ejectment of the appellants from the demised premises.

6. On appeal the findings on Issue No. 3 alone were disputed before the High Court. The appellant contended that in view of the option for renewal clause the tenancy was always renewable for 11 months at a time at the option of the appellants and that before the expiry of the last extended period (28‑2‑1979) a written request had been made to the respondent for extension of the lease, therefore the ejectment application was not maintainable it was also contended that the finding of the learned trial Court that the premises were required by the landlady in good faith for the use of her eldest son was not correct.

7. In support of these contentions it was submitted that the lease was in the nature of a lease in perpetuity because the question of extension of lease period or its termination depended exclusively at the option of the appellants. In these circumstances the respondent must be deemed to have waived her right of claiming the possession of the rented premises even on the ground of bona fide requirement. Reliance was placed upon a recent decision of this Court in the case of Mrs. Zehra Begum v . Messrs Pakistan Burmah Shell Ltd. P L D 1984 S C 38, wherein it was, inter alia, observed that in view of a valid subsisting contract between the parties the landlord cannot invoke the ground of personal requirement and that his application made during this period would be premature. This plea raised assumed that a valid tenancy was subsisting when the landlady filed the application for ejectment.

The learned Judge in the High Court while dealing with this plea observed that the situation in the present case was different from that obtaining in the case of Mrs. Zehra Begum. He added that in the present case the period of lease was for 11 months in the first instance and though it was renewable at the option of the tenant (the appellant herein) but this was to be done by giving one month's clear notice. However, the requisite notice was not given in this case. In this connection it was nosed that the last period of the extended lease expired on 28‑2‑1979 and if the appellants intended further extension of the lease they should have given the notice of such extension on or before 28‑1‑1979. However, the notice given by them was issued on 23‑2‑1979. This was followed by a telegram, received by the respondent on 25‑2 1979 i.e, only three days before the extended lease period. Since neither the notice nor the telegram were in accordance with the Lease Agreement the said agreement must be deemed to have ceased to be effective on and from 1‑3‑197.4. The ejectment application was filed after the expiry of the lease period on 30th May, 1979; hence the present case was distinguishable from the case of Zehra Begum. The discussion on this point was summed up by the learned Judge in the following words:‑

"In the Supreme Court case, it was held that the tenant who paid the rent and observed covenants, could not be ejected during the pendency of the lease period. The appellants in this case did not give one month's notice in terms of clause 19 of the agreement and thus did not observe the covenants. This case is, therefore, distinguishable from the Supreme Court's case."

< [if supportLists]>8. Coming to the second plea that the premises were not required by the landlady bona fide for the use and occupation of her son, the learned Judge concurred with the findings of the learned trial Court and held that the bona fide requirement of the landlady had been fully proved from the evidence on record. He accordingly, dismissed the appeal filed by the tenant. Hence this appeal, by leave of this Court.

< [if supportLists]>9. Mr. Khalid M. Ishaque, learned counsel for the appellants, has contended that the learned High Court was in error in holding that this Court's decision in Zehra Begum's Case was not relevant in the facts and circumstances of the present case simply on the basis of the circumstance that the option of renewal of the tenancy had not been exercised before its expiry and, therefore, there was no valid tenancy agreement subsisting when the application for ejectment was filed. According to the learned counsel the time was not the essence of the requisite notice for exercise of option by the appellants for renewal of the tenancy and as the option for renewal had been exercised some time before the lease period actually expired, the tenancy stood renewed even though thirty days clear notice had not been given.

< [if supportLists]>10. We cannot agree with this submission. The law is that an option for renewal of a lease must be exercised strictly within the time limit for the purpose otherwise it will lapse: (see Halsbury's Laws of England Vol. 1X (Fourth Edition), para. 483). In fact, the appellant himself was conscious that the original tenancy agreement stood expired and had resisted the ejectment on other grounds. In his affidavit of evidence, fur instance, tie submitted that I say that even otherwise there are no reasons or grounds for eviction of the opponents. Upon expiry of the original tenancy agreement, the opponents have been enjoying use and occupation of the case premises as statutory tenants'. Again, in the grounds of appeal filed before the High Court he admitted that 'the tenancy agreement was lastly extended for 11 months on 1‑4‑1978 which expired on 28‑2‑1979' but went on to urge that his ejectment should not have been ordered because of certain other considerations. It was only during the arguments before the High Court when the decision in Zehra Begum's case

had been reported in legal journals that the plea was taken that the appellants could not be ejected because their tenancy was still subsisting. This plea besides being an afterthought is also not tenable as we fully agree with the view of the learned Judge to the High Court that the dictum of this Court

in Zehra Begum's case is. not attracted in the facts and circumstances of the present case.

11. As for the other plea that the respondent did not require the demised premises bona fide for the use and occupation of her son Waseem Ahmad Shafi there is a concurrent finding of fact by the two Courts below that she did so require the demised premises. We find no l ground for interfering with the said concurrent finding of fact.

12. The result is that this appeal must fail. It is, therefore, dismissed hereby. However, the parties will be left to bear their own costs.

M. I. Appeal dismissed

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.