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

2

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

3

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 Hon’ble

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

4

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 Hon’ble 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 Hon’ble 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

5

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

6

parties and the petitioner cannot seek any escape from the

said tenancy.

Now adverting to the petitioner’s 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 petitioner’s 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

7

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 petitioner’s 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

8

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 petitioner’s 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

9

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 Hon’ble 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 Hon’ble Suprme Court

reported as Shajar Islam vs. Muhammad Siddique & 2

others (PLD 2007 S.C. 45) wherein their lordships the

Hon’ble 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

Hon’ble 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