2025 PLP 1852 (CLC)

MALIK WAQAR HAIDER AWAN, J.

Through this constitutional petition, petitioner has assailed the legality and validity of order dated 16.03.2022 and judgment dated 16.06.2022 passed by learned Civil Judge 1st Class, Jaranwala and learned Additional District Judge, Jaranwala, respectively.

2. Concisely, facts giving rise to the present petition are that respondents Nos. 1 to 3 moved an application for production of Muhammad Sajjad, son of Muhammad Abdullah, as a witness and furnishing his affidavit coupled with photocopy of passport whereas petitioner filed an application for issuance of direction to respondents Nos.1 to 3 for depositing rent in the Court. Through a consolidated order dated 16.03.2022, the former application moved by respondents Nos. 1 to 3 was allowed by learned Civil Judge 1st Class, Jaranwala whereas the second application filed by the petitioner was dismissed. Feeling aggrieved, the petitioner preferred an appeal challenging order dated 16.03.2022 which was dismissed by learned Additional District Judge, Jaranwala through judgment dated 16.06.2022, hence this writ petition.

3. Learned counsel for the petitioner contends that Section 22(3) of the Punjab Rent Premises Act, 2009 (hereinafter referred to as "Act") provides ceiling regarding number of witnesses (which is two), hence both the learned courts below failed to follow the statute which resulted into passing of impugned order/judgment which is not sustainable in the eye of law. Further adds that when law requires an act to be done in a particular manner, then it has to be done in that manner and not otherwise. Regarding deposit of rent in Court, learned counsel for the petitioner submits that respondents Nos. 1 to 3 who are contesting the ejectment petition are obligated to deposit rent in the Court and if petitioner succeeds to make out her case, she would be in a position to withdraw the same but both the learned courts below did not take into consideration this aspect of the matter. Relies upon Province of West Pakistan v. Raja Bashir Muhammad Khan (PLD 1983 Lahore 53), Sahib and 3 others v. the State (1990 MLD 1161), Muhammad Jafar Tarar v. District Magistrate, Gujranwala and another (1990 CLC 281), Muhammad Jahangir v. Muhammad Abbas and 2 others (2004 CLC 538), Robina Yasmeen and others v. Rana Javed Iqbal and others (2011 CLC 1779), Khalil-ur-Rehman and another v. Dr. Manzoor Ahmed and others (PLD 2011 Supreme Court 512) and judgment dated 11.09.2024 passed in PLD 2025 SC 63 titled Allah Bakhsh (deceased) through L.Rs. and others v. Muhammad Riaz and others (PLD 2025 SC 63).

4. On the other hand, learned counsel representing respondents Nos. 1 to 3 submits that provision of Section 22(3) of the Act dealing with number of witnesses is directory in nature and not mandatory. With regard to deposit of rent in the Court, learned counsel contends that respondents Nos. 1 to 3 have already vacated the premises, hence both the learned courts below decided in a rightful manner as uptil now, relationship of landlord and tenant is not established. Places reliance upon Mian Umar Ikram-ul-Haque v. Dr. Shahida Hasnain and another (2016 SCMR 2186).

5. Heard. Record perused.

6. There are two pivotal questions for determination before this Court as follows:- (i) Whether provision of Section 22(3) of the Act is directory or mandatory in nature? (ii) Whether order for deposit of rent in Court can be passed by the Special Judge (Rent)/Rent Tribunal when relationship of landlord and tenant is yet to be determined?

7. It has been held in judgments reported as Commissioner Inland Revenue, Zone-H, Regional Tax Officer (RTO), Mayo Road, Rawalpindi and another v. Messrs Sarwaq Traders, 216/1-A, Adamjee Road, Rawalpindi and another (2022 SCMR 1333) and Orient Power Company (Private) Limited through Authorized Officer v. Sui Northern Gas Pipelines Limited through Managing Director (2021 SCMR 1728), that the words "may" and "shall" used in a Section of an Act or an Ordinance are interchangeable and their interpretation as to whether they are directory or mandatory in nature depends upon the context in which they are used and cannot be interpreted with the rigidity attributed to them in ordinary parlance. It has also been held that if no penal consequences are given in a provision, even if the word "shall" is used therein, the said provision becomes directory (and not mandatory) and the word "shall" will be read as "may".

8. The Supreme Court of Pakistan in judgment reported as Province of Punjab through Conservator of Forest, Faisalabad and others (2021 SCMR 328) has highlighted the principles and test to determine whether a provision in a statute is directory or mandatory in nature. The operative part of the said judgment is reproduced as under:- In order to determine whether the aforesaid proviso is directory or mandatory, the duty of the court is to try to unravel the real intention of the legislature. The ultimate test is the intent of the legislature and not the language in which the intent is clothed. The object and purpose of enacting the provision provide a strong and clear indicator for ascertaining such intent of the legislature. The intention of the legislature must govern and this is to be ascertained not only from the phraseology of the provision but also by considering its nature, its object, and the consequences which would follow from construing it one way or the other. This exercise entails careful examination of the scheme of the Act in order to discover the real purpose and object of the Act. A provision in a statute is mandatory if the "omission to follow it renders the proceedings to which it relates illegal and void, while a provision is directory if its observance is not necessary to the validity of the proceeding. One of the important tests that must always be employed in order to determine whether a provision is mandatory or directory in character is to consider whether the non-compliance of a particular provision causes inconvenience or injustice and, if it does, the court would say that that provision must be complied within and that it is obligatory in its character. There are three fundamental tests, which are often applied with remarkable success in the determination of this question. They are based on considerations of the scope and object, sometimes called the scheme and purpose, of the enactment in question, on considerations of justice and balance of convenience and on a, consideration of the nature of the particular provision, namely, whether it affects the performance of a public duty or relates to a right, privilege or power - in the former case the enactment is generally directory, in the latter mandatory."

9. Likewise, in another judgment of the Supreme Court of Pakistan reported as Province of Punjab through Secretary Excise and Taxation Department, Lahore and others v. Murree Brewery Company Limited (MBCL) and another (2021 SCMR 305), distinction between mandatory and directory provisions has been drawn. The operative part of the judgment is as follows:- "The test to determine whether a provision is directory or mandatory is by ascertaining the legislative intent behind the same. The general rule expounded by this Court is that the usage of the word "shall" generally carries the connotation that a provision is mandatory in nature. However, other factors such as the object and purpose of the statute and inclusion of penal consequences in cases of non-compliance also serve as an instructive guide in deducing the nature of the provision."

10. A bare perusal of the afore-noted interpretation of a mandatory and directory provision would make it crystal clear that the said provision of law is "directory" in nature, however, Courts are required to make all endeavours to follow the directory persuasions but not at the cost of justice.

11. Although in Section 22(3) of the Act, the words "affidavits of not more than two witnesses" have been mentioned but these words are directory in nature and Court can exercise its jurisdiction keeping in view the facts of the case and can allow more witnesses to appear in the witness box and depose. The purpose of the Act is to regulate the relationship between landlords and tenants in Punjab and provide a mechanism for resolving disputes in a timely and cost-effective manner. The rationale behind mentioning of number of witnesses is actually to curtail the time spent in rent matters and expeditious disposal thereof.

12. It would be significant to note that trial court plays a crucial role in steering the trial process, ensuring fairness and upholding legal procedures. Trial court directly deals with the ground realities and different stages of trial. Furthermore, case file maintained by the trial court remains almost the same upto the level of Apex Court of the country. Last but not the least, Trial Court being at the helm of affairs closely monitors and controls the speed of trial and can exercise its discretion but in accordance with legal principles while applying judicious mind.

13. In the instant case, if production of witness namely Muhammad Sajjad, son of Muhammad Abdullah is permitted, even then it will not prejudice the case of either party as the petitioner shall have the right to cross-examine the said witness and in this way, permission to produce the said witness will not prejudice her rights.

14. As regards deposit of rent in Court, it is noted that when relationship of landlord and tenant has been denied by tenant, he cannot be burdened with deposit of rent, especially in the present case when respondents Nos. 1 to 3 have already vacated the premises and they have taken a specific stance that they are not tenants of present petitioner rather they took the suit property on rent from the caretaker namely Abbas, in whose favour general power of attorney was executed by petitioner which was later on got cancelled by her.

15. The afore-referred question has been comprehensively dealt with by the Supreme Court of Pakistan in judgment reported as Mian Umar Ikram-ul-Haque v. Dr. Shahida Hasnain and another (2016 SCMR 2186) in the following terms: "Therefore, it follows that where the relationship of landlord and tenant is denied, the Rent Tribunal would lack jurisdiction, on account of the doctrine of jurisdictional fact, to pass an order for payment of rent due under section 24 of the Act until and unless the Tribunal positively ascertains the relationship of tenancy and establishes that the respondent to the eviction application is in fact a 'tenant' in terms of section 2(1) of the Act."

16. The above extract makes it indubitably clear that where relationship of landlord and tenant is denied by the tenant, he cannot be compelled to deposit the rent till the relationship is established. It is, however, observed that at the definitive end of the proceedings, if petitioner succeeds to establish the relationship of landlord and tenant with respondents Nos. 1 and 3, rent would be recoverable through an execution petition.

17. So far as judgments cited by learned counsel for the petitioner are concerned, the same having different facts and circumstances are not applicable to the case in hand, therefore, not helpful for the petitioner.

18. Since the learned counsel for the petitioner has not been able to highlight any jurisdictional defect, illegality, legal infirmity or perversity in the impugned order and judgment, therefore, no ground for interference is made out, as a sequel to which, this constitutional petition fails and the same is dismissed. UN/S-34/L Petition dismissed.