FORM No.

HCJD/C-121
ORDER SHEET
IN THE LAHORE HIGH COURT
BAHAWALPUR BENCH BAHAWALPUR
JUDICIAL DEPARTMENT

W.P No.7905 of 2016/BWP

Muhammad Nasir Majeed Versus Additional District Judge,

Bahwalpur, etc.

S.No. of order/ Date of order/ Order with signature of Judge, and that of parties of counsel, where
proceeding Proceeding necessary

17.01.2017 Mr. Abdul Mughni Farani, Advocate for the petitioner.

. Mr. Abdul Jaleel Khan, Advocate for respondent No.3.

Ejectment petition under section 15 of the Punjab

Rented Premises Act, 2009 (hereinafter called The Act)
was filed by Mubarak Ali, respondent No.3 (hereinafter
called the respondent) against petitioner Muhammad
Nasir Majeed on the grounds of default in payment of
monthly rent and personal need. The petitioner filed an
application for leave to contest under Section 22 of The
Act, he denied the relation of landlord and tenant and
contended therein that he is in possession of the
disputed premises under an agreement to sell dated
26.01.2013 and that rent deed dated 06.05.2011 was
cancelled. Learned Rent Tribunal vide impugned order
dated 26.04.2016 dismissed the application and ordered
petitioners ejectment from the disputed premises.
Aggrieved with the order, the petitioner filed an appeal
which was also dismissed by the learned lower appellate
court vide impugned order dated 26.09.2016.

2. Now the petitioner had filed instant writ petition

challenging the validity of the impugned order/judgment
on the ground that these are result of misreading and
non-reading of evidence; that learned trial court could
not proceed into the ejectment petition as question of title
of the disputed property was subjudice between the
parties before court of competent jurisdiction; that order
passed by the two courts below under section 22 of The
Act is violative to the Constitutional guarantees
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enshrined under Articles 4 and 8 regarding protection of

fundamental rights and fair trial and that petitioner was
deprived of his legal rights.

3. Learned counsel for the petitioner contended that

petitioner denied relationship of landlord and tenant, as
after cancelling rent agreement, he entered into
agreement to sell with the respondent and on the
strength of said agreement, the possession of the
petitioner over the disputed property is as owner but both
courts below failed to appreciate this fact and without
allowing leave to contest or framing of issues and
recording of evidence decided the factual controversy on
the basis of surmises and conjectures. Further contended
that rent agreement was not got registered in terms of
Sections 8 and 9 of The Act, as such, the ejectment
petition was not proceedable. Also contended that after
entering into the agreement to sell, petitioners status
was changed from tenant as to owner of the disputed
premises and in this respect he also filed a suit for
specific performance of the agreement, which according
to him, barred the jurisdiction of the Rent Tribunal but
this clear legal position was overlooked by both courts
below. Learned counsel concluded his arguments while
seeking that both impugned order/judgment may be
declared illegal and without any effect and further that
Section 22 of The Act may be declared as illegal and ultra
vires to Articles 4 and 10(a) of The Constitution of Islamic
Republic of Pakistan, 1973.

4. On the other hand, learned counsel for respondent

defended impugned order/judgment and contended that
respondent No.3 landlord is living abroad and after
handing over possession of the disputed premises on rent
to the petitioner left the country. The petitioner taking the
advantage of his absence refused to pay monthly rent has
taken false plea that he is in possession on the basis of
agreement to sell, whereas, agreement does not create
any right unless it is enforced vis--vis ownership of the
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property. He added that suit filed by the petitioner for

specific performance had been dismissed and that the
learned courts below correctly appreciated law and facts
and passed justified legal and effective order/judgment,
whereas, this petition is filed without any legal backing;
hence, deserve to be dismissed.

5. I have heard the arguments of learned counsel for

the parties and perused the record.

6. It is an admitted fact between the parties that rent

agreement in respect of disputed premises was executed
between the parties on 06.05.2011. Initially it was not got
registered with the concerned authority but subsequently
it was done so, respondent paid penalty and got the rent
agreement regularized, therefore, non-registration of the
rent agreement at the initial stage is not creating any
negative effect upon the claim of the respondent. Reliance
can be placed on the dictum laid down in RANA ABDUL
HAMEED TALIB versus ADDITIONAL DISTRICT JUDGE,
LAHORE and others (NLR 2013 Civil 404).

7. The main contention of the learned counsel for the

petitioner was that as there was an agreement to sell
executed between petitioner and the respondent and in
this respect a civil suit for specific performance was also
filed, therefore, the jurisdiction of the learned Rent
Tribunal was ousted. It is noteworthy that respondent in
Para No.4 of the ejectment petition specifically taken the
stance that petitioner prepared a fraudulent agreement
showing that he agreed to sell the disputed premises to
him for consideration and also received earnest money. It
may be added here that the petitioner filed a civil suit on
26.05.2015 for specific performance of alleged agreement
dated 26.01.2013, however, said civil suit was dismissed
on 19.07.2016 by the learned trial court. Though, appeal
against said judgment and decree was filed by the
petitioner on 02.08.2016 in which the learned appellate
court passed injunctive order from 02.08.2016 to
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06.08.2016 but the petitioner has not placed on record

any document to show that said stay or injunctive order
was extended. Leaving these facts aside principally
speaking manner entering into agreement to sell is not
creating ownership rights in favour of the alleged vendee
unless such agreement is enforced in due course of law.
In this respect reliance is placed on the case law of this
Court reported as GHULAM HUSSAIN vs. MALIK
MUHAMMAD NIAZ and others (2012 YLR 1464 Lahore)
and Syed TAMTARRAQ MOHSAN SHAH vs. ADDITIONAL
DISTRICT JUDGE, SAHIWAL and 6 others (PLJ 2011
Lahore 728). At the most, the contention of the learned
counsel for petitioner can be considered only his version
but unless it is proved, established and enforced, he
cannot get any benefit out of it. Learned counsel for the
petitioner also argued that ejectment petition was
addressed to the learned Civil Judge and not to the court
of Rent Tribunal but if it is the position, then it was only
a technical defect and cannot effect the rights of the
respondent as were acknowledged by two courts below
and for this technical mistake, if committed, by the
respondent, cannot stand against basic right and in this
respect reliance is placed on the case law of this Court
reported as MUHAMMAD NAYAB vs. ADDL. DISTRICT
JUDGE, etc. (PLJ 2014 Lahore 995)

8. It is also appropriate to mention here that though it

is contention of the petitioner that rent agreement was
rescinded/cancelled by the parties, it is noteworthy that
this expression is also recorded in the alleged agreement
to sell dated 26.01.2013, which has vehemently been
denied by the respondent, therefore, rescinding tenancy
agreement is only version without any proof and of no
benefit to the petitioner.

9. The last contention raised and prayer made by the

learned counsel for the petitioner is that as Section 22 of
The Act is ultra vires to Articles 4 and 8 of The
Constitution of Islamic Republic of Pakistan, 1973 as it
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deprived the petitioner of his right to have a fair trial and

it also affected his fundamental rights as guaranteed
under the Constitution, therefore, the said section is to
be struck down from the statute by this Court is exercise
of its constitutional jurisdiction.

10. This Court is not inclined to endorse view point of

the counsel because The Act is special law which
provides comprehensive legal frame work to regularize
legal matters between landlord and tenant vis-a-vis
rented premises.

11. Section 22 of The Act is reproduced here:-

22. Leave to contest.----(1) A Rent

Tribunal shall not allow a respondent to
defend the application unless he obtains
leave to contest.

2. Subject to this Act, a respondent

shall file an application for leave to
contest within ten days of his first
appearance in the Rent Tribunal.

3. An application for leave to contest

shall be in the form of a written reply
stating grounds on which the leave is
sought and shall be accompanied by an
affidavit of the respondent, copy of all
relevant documents in his possession and,
if desired, affidavits of not more than two
witnesses.

4. The Rent Tribunal shall not allow

leave to contest to a respondent unless
the application discloses sufficient
grounds for production of oral evidence.

5. The Rent Tribunal shall decide the

application for leave to context within a
period of fifteen days from the date of its
filling.

6. If the leave to contest is refused or

the respondent has failed to file
application for leave to contest within the
stipulated time, the Rent Tribunal shall
pass the final order.

12. Perusal of above section reveals that this section of

The Act is integral and very important part of the entire
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scheme of the special law and same cannot be taken in

isolation without considering the other provisions of law.
In the instant matter, the petitioner himself opted to avail
opportunity under Section 22 of The Act and filed
application for leave to contest, when failed he filed an
appeal without raising any objection that Section 22 of
The Act is ultra vires to the Constitution, therefore, now
in the instant writ petition, he for the first time has raised
this legal objection which is not sustainable. Accordingly,
the contentions of the learned counsel for the petitioner
are repelled.

13. A careful analysis of the entire record, I do not see

any jurisdictional error committed by the courts below.

14. Writ petition being devoid of force stands

dismissed accordingly with no order as to costs.

(TARIQ IFTIKHAR AHMAD)

JUDGE

Announced on 19.01.2017.

APPROVED FOR REPORTING

*Mehboob Rabbani*