Stereo.

HCJDA 38 Judgment Sheet

IN THE LAHORE HIGH COURT AT LAHORE

JUDICIAL DEPARTMENT W.P NO. 7794 OF 2012

JUDGMENT
Date of hearing: 06.04.2012 Appellant by : (SYED BAHADUR ALI SHAH) Syed Sarwar Hussain Shah Advocate Respondent : (A.D.J etc) Nemo Shujaat Ali Khan J. By means of this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, Syed Bahadur Ali Shah (petitioner) has called in question the vires of order, dated 9.3.2011, passed by the learned Special Judge (Rent), Lahore whereby the Ejectment Petition, filed by Mst. Anwar Begum (respondent No.3) was accepted as well as that of order dated 06.03.2012 by virtue of which the learned Additional District Judge, Lahore while dismissing the appeal filed by respondent No.3 upheld the order passed by the learned Special Judge (Rent), Lahore. 2. Succinctly, the facts, forming factual background

of this petition, are that respondent No.3 being owner of a shop bearing Property No.SE-3-R-127 situated at Shalamar Link Road, Lahore, filed an Ejectment Petition against the present petitioner on 7.05.2008 which was accepted by the

learned

Rent

Controller,

Lahore

vide

order

dated

27.10.2008 subject to the condition that respondent No.3 would deposite 10% of the annual rent in the Government Treasury within one month. Aggrieved by the said order, the present petitioner filed an appeal before learned District Judge, Lahore. The said appeal came up for final hearing before the learned Additional District Judge on 27.10.2008 when the appeal filed by the present petitioner was accepted and the case was remanded back to the learned Rent Controller, Lahore for decision afresh. Being

dissatisfied with the said order too, the present petitioner filed Writ Petition (bearing No.6817/2010) before this court which was dismissed by Mr. Justice Sheikh Ahmad Farooq (as he then was) vide order dated 16.6.2010. During post remand proceedings, the present petitioner filed Petition for Leave to Contest before the learned Special Judge (Rent), Lahore which was dismissed vide order dated 09.03.2011 against which the present petitioner preferred an appeal before the learned District Judge, Lahore which too was dismissed by the learned Additional District vide order dated 06.03.2012; hence this petition. 3. The present petition came up for preliminary hearing

before this court on 30th March, 2012 when notice was issued to respondent No.3 for 04.04.2012. Though, as per office record, notice was issued to respondent No.3 for the

said date, neither respondent No.3 nor any of his representative entered appearance on 04.04.2012. On 04.04.2012 the hearing of this petition was postponed for today due to non-availability of learned counsel for the petitioner. Even today respondent No.3 is un-represented inasmuch as neither he nor anybody else has entered appearance on his behalf. Consequently, respondent No.3 is proceeded against ex-parte as this petition cannot be kept pending for an indefinite period awaiting presence of respondent No.3 as the said approach runs contrary to the spirit of National Judicial Policy enunciated by the Honble Chief Justice of Pakistan. 4. The arguments put forth by the learned counsel for

the petitioner at the bar can be summed up in the words that the orders passed by both the courts below are bereft of any reasoning; that while passing the impugned orders the lower forums have not attended to the merits of the case as the petitioner was knocked out on the basis of technicalities inasmuch as his Petition for Leave to Contest was dismissed and he was not allowed to contest the petition filed by respondent No.3 due to sheer mala fides on her part; that the learned courts below having not attended to an important aspect of the case that deposit of 10% of the annual rent did not mean to oblige the learned Special Judge (Rent), Lahore to dismiss the Petition for Leave to

Contest filed by the petitioner; that both courts have not appreciated that earlier respondent No.3 filed an Ejectment Petition under Punjab Rent Restriction Ordinance, 1959 whereas after withdrawing the same she filed a petition for the self-same relief under the Punjab Rented Premises Act, 2009; that both the forums below have not taken into consideration that respondent No.3 miserably failed to comply with the provisions of sections 5 and 6 of the Punjab Rented Premises Act, 2009; that in absence of any written Tenancy Agreement the learned Special Judge (Rent), Lahore was not obliged to entertain Ejectment Petition; that the learned courts below failed to appreciate that the Ejectment Petition was filed by respondent No.3 as counterblast to the suit filed by the petitioner for permanent injunction and that both the courts below have passed orders in violation of Honble Supreme Court Judgment rendered in an unreported case titled Allah Ditta Sajid vs. Muhammad Saleem Qureshi & others

(Civil Petition No.349-L/2010). 5. I have given ardent hearing to the learned counsel for

the petitioner and have also gone through the documents appended with this petition, in particular the judgment of the Honble Supreme Court referred to by the learned counsel for the petitioner. During the said exercise I have noted that tenancy between the petitioner and respondent

No.3 regarding the shop in dispute is admitted as under Preliminary Objection No.3 in the first application for Leave to Defend, the petitioner averred that the landlord

(respondent No.3) did receive the rent up to the month of May 2008 and subsequent thereof, the tenant had been depositing monthly rent in the Government Treasury. Further, the said question stood determined by this Court in the earlier round of litigation while dealing with Writ Petition.6817/2009. Now the question left for

determination by this court is that if the parties continue with the tenancy despite expiry of the Tenancy Agreement what would be the effect of such Tenancy. In this regard, a reference can safely be made to a case reported as Khalid Javed v. Muhammad Imran (2004 MLD 577) wherein while dealing with somewhat similar question, it was inter alia held as under:*****Under law when a tenant enters into a rented premises under some written agreement, after lapse of period mentioned therein, terms and conditions settled between the parties through written agreement, continue to govern the terms and conditions of the tenancy and it by no stretch of imagination becomes oral tenancy...... In view of the law laid down in the afore-quoted case, it is crystal clear that as the petitioner continued in the rented premises as tenant, he was bound by the terms and conditions of the earlier agreement executed between

parties and the petitioner cannot seek any escape from the said tenancy. Now adverting to the petitioners contention that the Ejectment Petition was filed as a counterblast to the suit filed by the present petitioner, I am of the view that according to section 10 of the Punjab Rented Premises Act, 2009, an agreement to sell or any other agreement entered into between the landlord and the tenant, after the execution of a tenancy agreement, in respect of premises and for a matter other than a matter provided under the tenancy agreement, shall not affect the relationship of land and tenant unless the tenancy is revoked through a written agreement entered before the Rent Registrar in accordance with the provisions of section 5. Since, execution of a Tenancy Agreement between the present petitioner and respondent No.3 is not denied, therefore, filing of a suit by the petitioner is of no help to him rather their status would be governed by the Punjab Rented Premises Act, 2009. Insofar as the petitioners plea that as the Tenancy Agreement was not in conformity with the Punjab Rented Premises Act, 2009, the Ejectment Petition could not be entertained by the learned Special Judge (Rent) Lahore, suffice it to observe that as per section 9 of the Punjab Rented Premises Act, 2009, if the landlord deposits 10% of the annual rent, then any defect in his tenancy would

stand cured. In the case in hand, respondent No.3 has already deposited the amount of fine, therefore, the objection raised by the learned counsel for the petitioner is hereby spurned. Now while dealing with the petitioners assertion that after remand of case, the learned Special Judge (Rent) was not obliged to straightway dismiss the Petition for Leave to Defend filed by the petitioner rather he should have decide the case on merits, I am of the humble opinion that in view of section 22(4) of the Punjab Rented Premises Act, 2009 a Rent Tribunal is not supposed to decide an application for Leave to Defend in a casual manner rather the Tribunal is duty bound to see as to whether the application discloses sufficient grounds for production of oral evidence or not. Further, in the case reported as Pakistan Bail-ul-Mal v. Umar Mahmood Kasuri and another (2008 C.L.R 910) it has inter alia been held that 11. As is clear from the above language, it is not in fact a discretion of the learned Rent Controller. The law says if the tenant makes default his defence shall be struck off and landlord put in the possession of the property without taking any further proceedings in the case. It is therefore, not an option for the learned Rent Controller. In the presence of this language, since there was no option, the order dated 30.4.2005 even otherwise was not enforceable. This a party of the continuation of the same proceedings. The learned Rent

Controller directed for production of the evidence which was subject to payment of determined amount of rent. On non-fulfilment of the obligation in terms of default and non-payment, he was legally bound to strike off the defence and was thus obviously obliged to do what he did. A survey of the above quoted paragraph of the reported case, it is evident that it is obligatory on the Rent Tribunal to see as to whether requisite grounds for grant of Leave to Defend are available or not. Insofar as the case in hand is concerned, a perusal of the order passed by the learned Special Judge (Rent), Lahore brings it to light that while dismissing the application of the petitioner for Leave to Defend the learned Rent Tribunal given plausible reasons. Thus, the said order is not amenable to interference by this court and that too in exercise of its constitutional jurisdiction. As far as the petitioners objection regarding

maintainability of Ejectment Petition under the Punjab Rented Premises Act, 2009 after withdrawal of earlier Ejectment Petition filed by respondent No.3 is concerned, I am of the considered view that by virtue of sections 35 & 36 of the Punjab Rented Premises Act, 2009 a saving clause has been introduced for the matters already pending under Punjab Urban Rent Restriction Ordinance, 1959 and the Punjab Urban Rent Restriction Ordinance, 2007. Even

otherwise the cause of action on the basis whereof respondent No.3 filed Ejectment Petition was subsisting at the relevant time and petitioner has no cheeks to urge that the said petition was not maintainable. Now coming to the judgment of Honble Supreme Court supra I am of the humble view that the same is not applicable to the case in hand due to peculiarity of the facts and circumstances involved in the said matter inasmuch in the said case the landlord despite direction by the Rent Tribunal did not deposit the amount of fine. Further, in the said case, the order regarding deposit of 10% of the annual rent by the landlord was not challenged by the tenant whereas in the case in hand the petitioner himself challenged the order of remand by the learned Additional District Judge, Lahore before this court by way of filing of Writ Petition No.6817/2010 which was dismissed vide order dated 16.6.2010 and order of dismissal of the said petition having not been challenged before any higher forum has attained finality. Thus, it does not lie in the mouth of the petitioner to agitate at this juncture that the Ejectment Petition was not maintainable before the Special Judge (Rent), Lahore. Even otherwise this court rarely exercises its constitutional jurisdiction to upset the findings of facts recorded by to forums below rather this court can exercise

10

such discretion in the cases wherein the orders impugned apparently are erroneous. If any case-law is required on this point, a reference can safely be made to a very illuminated judgment of the Honble Suprme Court

reported as Shajar Islam vs. Muhammad Siddique & 2 others (PLD 2007 S.C. 45) wherein their lordships the Honble Judges of the Supreme Court has laid down the law to the following effect:*****The learned counsel for the respondent has not been able to point out any legal or factual infirmity in the concurrent finding on the above question of fact to justify the interference of the High Court in the writ jurisdiction and this is settled law that the High Court in exercise of its constitutional jurisdiction is not supposed to interfere in the findings on the controversial question of facts based on evidence even if such finding is erroneous. The scope of the judicial review of the High Court under Article 199 of the Constitution in such cases, is limited to the extent of misreading or non-reading of evidence for if the finding is based on no evidence which may cause miscarriage of justice but it is not proper for the High Court to disturb the finding of fact through reappraisal of evidence in writ jurisdiction or exercise this jurisdiction as a substitute of revision or appeal. 5. In sequel to above discussion, we are of the

considered view that the interference of the High Court in the concurrent finding of the two Courts regarding the existence of relationship of land and tenant between the parties was beyond the scope of its

11

jurisdiction under Article 199 of the Constitution and consequently, we convert this petition into an appeal, set aside the judgment of the High Court and allow the appeal with no order as to costs. A perusal of the afore-quoted portion of the judgment of the Honble Supreme Court makes it abundantly clear that this court has very narrow scope to interfere in the orders passed by the lower forums. Considering from another angle, respondent No.3, who belongs to weaker gender, has been going from pillar to post for redressal of his grievance since the year 2008 but till date neither her possession has been restored to her nor any rent has been paid by the petitioner to her. To sum up, I am of the opinion that learned counsel for the petitioner has miserably failed to point out any illegality or perversity in the impugned orders justifying interference by this court in exercise of its constitutional jurisdiction. Consequently, I see no merits in this petition, which is hereby dismissed with no order as to costs.

Judge Approved for Reporting.

Judge

12