2023 PLP 871 (CLC)

MUHAMMAD NAEEM ANWAR, J.

The instant Regular Second Appeal was filed against order dated 18.04.2017 of the learned District Judge/ Zila Qazi, Malakand Camp Court at Dargai, whereby rent appeal filed by the petitioner against judgment and decree dated 26.09.2016 of the learned Rent Controller accepting application of respondent No.1 for ejectment of petitioner from the shops as described in Head Note of application/petition, was dismissed. Similarly, through connected R.S.A No.7-M/2017 titled "Gohar Ali v. Sher Afzal and others" and R.S.A No.8- M/2018 titled "Muhammad Rafiq v. Sher Afzal etc" separate orders dated 07.12.2017 of the learned Appellate Court i.e., Additional District Judge/ Izafi Zila Qazi, Malakand at Dargai dismissing rent appeals of the respective petitioners against judgments and decrees of the learned Rent Controller have been challenged. In consonance with the provisions of section 15 of the West Pakistan Urban Rent Restriction Ordinance, 1959 (the Ordinance of 1959), this as well as connected Regular Second Appeals are treated as writ petitions. Office is directed to add Rent Controller as well as the learned Appellate Courts as a party in the array of the respondents. Office is further directed to make necessary changes in the record as well as in the heading of the petitions. An Identical question of law and facts is involved in all these petitions therefore, all of them are being decided through this single judgment in the instant petition.

2. Nitty-gritty of these petitions are that respondent No.1 of instant petition filed an application for recovery of outstanding rent since April, 2013 till February, 2014 and onwards till final decision of the application @ Rs.1450/- per month against the petitioner pertaining to shops No.92 &

93. He also filed applications against the petitioners of the connected petitions, for recovery of outstanding rent since May, 2013 till February, 2014 and thereafter till final decision of the petitions @ Rs.1150/- per month each pertaining to the shops Nos. 103, 104, 119 and 120 with an additional relief for recovery of possession of the shops on the ground of personal need situated in Sher Afzal Market Skhakot Bazar, District Malakand. It was averred in the applications filed against the petitioners of these petitions that initially agreement was executed between the parties on 01.02.2009, 05.09.2007 and 07.02.2005, respectively, for a period of three but after the expiry of said three years, no fresh agreement was ever executed between the parties; that the petitioners were asked time and again to hand over the vacant possession of the shops to respondent/landlord on the ground of his personal need as well as on the ground of default in payment of the monthly rent but they refused. The applications were resisted by the petitioners on distinct legal and factual objections with a plea that they have paid security to the respondent/landlord, which is outstanding against respondent who is in habit of enhancement of rent as per his own whims and wishes, without caring for the statutory provisions of law. They, in their respective written replies, have refuted the contentions of respondent No. 1/landlord regarding the outstanding rent/dues and the ground of personal need. It was alleged that they have never defaulted in respect of the rent since the execution of the initial tenancy agreements. The divergent pleadings of the parties were reduced into issues by the learned Rent Controller and thereafter the parties were directed to adduce their respective evidence. After completion of evidence, the learned Rent Controller through its judgments and decrees dated 26.09.2016 allowed the applications for ejectment, with the directions to petitioners to hand over the vacant possession of the shops to respondent No.1, within a period of three months. Respondent No.1 was also directed to hand over the security amount to the petitioners within a period of two months and also allowed the respondent to receive the amount already deposited after institution of the ejectment applications. Being aggrieved from the judgments and decrees of the learned Rent Controller, the petitioners filed Rent Appeals No.03/2016, 04/2016 and 05/2016. Appeal No.05/2016 was dismissed by the learned District Judge/Zila Qazi, Malakand camp Court at Dargai on 18.04.2017, while Appeals No.03/2016 and 04/2016 were dismissed by the learned Additional District Judge/Izafi Zila Qazi, Malakand at Dargai on 07.12.2017, hence, these petitions.

3. Learned counsel for the petitioners contended that the findings of the learned Rent Controller on issue No.2 regarding the default in payment of rent are against the facts as the petitioners have never defaulted in the payment of monthly rent and even after the submission of the applications for recovery of rent and ejectment of the petitioners, the learned Rent Controller directed the petitioners to deposit the rent and they in compliance have timely deposited the rent in accordance with the statutory provisions of law. He further contended that the respondents have more than hundred shops in the same vicinity, regarding which, the applications were filed by him for ejectment of the tenants as he is in habit of renting out the shops after ejectment of sitting tenant on enhanced rent, as per his own desire. He also submitted that when the respondent/landlord refused to receive the rent, it was sent to him through money orders. Lastly, he contended that the security amount could be also adjusted for the outstanding rent, if any. In support of his submissions, he placed reliance on the cases of "Messrs Bolan Enterprises v. Mushtaq Ali Kumbho" (2001 SCMR 1801), (PLD 2003 Quetta 23), "Muhammad Nawaz Sheikh v. Manzar Hassan" (PLD 2011 Lahore 531), (2002 CLC 1391) "Muhammad Yousaf v. Abdullah" (PLD 1980 SC 298), "Maulvi Muhammad Siddique v. Haji Muhammad Akbar" (2000 YLR Lahore 2907) and (1984 CLC 39).

4. Contrarily, learned counsel for the respondent No.1 supported the impugned orders, however, he stated at the bar that these applications were submitted in February and March 2014 and orders of the ejectment were passed against the petitioners but the matter is still pending adjudication, as such, he requested for early decision of these petitions.

5. I have given due consideration to the submissions of learned counsel for the parties and with their valuable assistance gone through from the requisitioned record of Case No. 1/RC of 2014 coupled with connected petitions.

6. There is no denying fact that respondent No.1/landlord has filed applications for recovery of outstanding rent/dues and ejectment of the petitioners from the shops, which were properly described in the headnotes of the respective applications. In the instant petition, the rent agreement was executed on 01.02.2009 between the petitioner and respondent No.1, whereby rent for each shop was agreed as Rs.1100/- per month for a period of three years, which was later on enhanced and lastly it was Rs.1450/- per month in the year 2013. It was alleged by the respondent No.1 that since April 2013 till filing of the application, no rent was paid to him by the petitioner. Record reflects that after filing of the petition, on 11.06.2014, an application was moved by the petitioner seeking permission to deposit the rent which was allowed by the learned Rent Controller order under section 13 (6) of the Ordinance of 1959 in terms of directing him to deposit the monthly rent before 7th of each month. On 19.02.2015, respondent No.1 has filed an application for striking off the defence of the petitioner for non-compliance of order passed under section 13 (6) of the Ordinance of 1959. This application was turned down by the learned Rent Controller through order 29.06.2015, by mentioning therein that the petitioner/ tenant has deposited rent for January and February, 2015, as such, the application has got no merit. This order was assailed by the respondent No.1, however, his appeal too was dismissed. It appears from the record that for deposition of rent for month of April, 2014, an application was filed on 29.05.2014, which was placed on record, however, rent for the month of April to June, 2014 was deposited on 05.07.2014. On 4th of September 2014, the application was moved for deposing the rent of July 2014, and the rent was deposited on 04.09.2014. Section 13(6) of the Ordinance of 1959 provides that if the relationship is not disputed the Rent Controller shall direct the tenant to deposit all the rent due from him and also to deposit regularly till the final decision of the case, before the fifteenth day of each month, the monthly rent due from him. Plane reading of the ibid provision is self-explanatory that the rent would become due on the last date of the said month, the rent of July 2014 became due on 30th of June and could validly be deposited before 15th of August 2014 but in no circumstances, it could be extended till the September. Neither the Rent Controller could extend the time nor the tenant could be allowed to deposit the rent as per his desire, thus, the tenant has committed default in payment of monthly rent, for which, no plausible explanation was submitted by the tenant. Deposit of rent in negation of order of the Rent Controller and in derogation of law leaves no room for the tenant to remain is possession of the demised premises. Rel: Rukhsana Begum v. TNT express Worldwide Pakistan (Pvt.) Ltd. (2005 SCMR 1398). Reliance is also placed on the principle laid down by Hon'ble Supreme Court in Khawaja Muhammad Mughees's case (2001 SCMR 2020), in which, it was held by their Lordships that:- "In this view of the matter, the default on the part of the petitioner stands established. Furthermore, he had failed to comply with the interim order dated 3-10-1997 passed by this Court whereby he was required to deposit rent for the month of October, before the 10th of November, 1997.There is no explanation on behalf of the petitioner in this respect. In this view of the matter, his defence was liable to be struck off as no infirmity or lacuna, whatsoever, appears in the impugned order, the leave to refused. However, six months' time is allowed to the petitioner to put the landlady in vacant possession of the property in dispute. This order will be subject to the payment of rent, current charges of electricity and gas and clearance of arrears bills of electricity within a month."

7. Moreso, mention of 7th day of each month for deposit of monthly rent instead of 15th of the month would make no difference in view of peculiar circumstances of the case. Record further promulgates that the issue for default of rent was also decided against the petitioner, but neither any application was submitted before the learned Appellate Court nor before this Court for payment of the monthly rent.

8. It is worth to mention that learned counsel for petitioner contended at the bar that when respondent No.1 refused in receiving the monthly rent, it was sent through money orders, however, neither this aspect was pleaded in the written reply nor receipts thereof were placed on record. Likewise, no official from the concerned post office was produced in order to substantiate his contention for payment of the monthly rent through money orders or refusal thereof by the respondent No.1/landlord. The submission of application for deposit of rent on 29.05.2014 by mentioning therein that he intends to deposit the rent of April and non-production of any receipt for April, 2013 till April 2014 are indicative of the fact that no rent for that period was paid to the landlord/respondent No.1. Statement of Tehseen Ullah, the brother of petitioner was recorded as DW-1, who, in his cross examination, admitted that neither he is in possession of any receipt for payment of rent since April, 2013 till February, 2014. He also admitted that he could not produce before the Court receipt of money order or any other evidence to negate the contention of the respondent No.1/landlord. The evidence of the petitioner is repelling to his submissions, which is evident from record.

9. Turning to another crucial aspect of the case which relates to the business of the petitioner on one hand and personal need of the respondent No.1 on the other. The admission of Tehseen Ullah (DW-1) that the petitioner is in Malaysia since 1998 in connection with earning livelihood and he is running business in the disputed shops instead of the tenant/petitioner. In his cross-examination, he also deposed that possession of the shops was handed over to him in the year 2009. Irrespective of the submission of learned counsel for the petitioner that rent was paid to respondent No.1/landlord through money orders when he refused to receive it, DW-1 in his cross examination adduced that he has paid the entire outstanding rent in lump sum. It is also in his cross-examination that only for a period of 2/3 months, the petitioner remained in possession of the shops as tenant and thereafter the possession thereof was handed over to DW-1. Apart from the above, it was alleged by respondent No.1 that he is in personal need of the disputed shops for the purpose of establishing business for his sons who are in possession of the shops on rent in another market. This fact has also been admitted by DW-1 in his cross examination. I am of the view that consistent statement of landlord on oath in juxtaposition with the evidence of petitioners, the respondent has succeeded in establishing the case for ejectment of petitioner on the plea of business for his son. Reference may be given to the cases of "Muhammad Aslam and others v. Hanif Abdullah and Brothers through Proprietor" (2003 SCMR 1667) and "Mst. Sas Bano and 3 others v. Mst. Mahmooda Sabir" (2002 SCMR 412).

10. Undisputedly, there is no tenancy agreement between Tehseen Ullah (DW-1) and respondent No.1/landlord besides the agreement, which was entered between respondent No.1 and his tenant/petitioner Noor Rahman was only for a period of three years, within the purview of section 13(1) of the Ordinance of 1959, notwithstanding, the fact that the agreement was unregistered. It is pertinent to mention here that after expiry of the tenancy period, no rent agreement was executed between the parties i.e., the petitioners and respondent in all the three petitions, as such, the possession of the petitioners was at sweet will of the respondent/ landlord, therefore, when he demanded the possession of the shops, the petitioners/ tenants were duty bound to hand over the vacant possession of the shops as after expiry of the tenancy period, there was no justification for the petitioners to hold the possession of the shops, without the consent of the landlord. Rel: Qaiser Javed Malik v. Pervaiz Hameed and 2 others (2009 SCMR 846), Arshad Ali v. Mst. Zubaidah Bibi and 2 others (2008 SCMR 1457). It is well settled law that after expiry of tenancy when no further tenancy agreement was executed, tenancy between the parties was to be considered on month-to-month basis, and after expiry of tenancy period the tenant loses his right to continue his possession as a tenant over the rented premises. It was the tenancy created between respondent No.1 and the petitioners for a period of three years and before expiry of same, neither the ejectment could be sought on the ground of personal need nor the Rent Controller could pass any such order. Nevertheless, when there is no tenancy agreement then the petitioners are in possession at the will of respondent No.1/landlord, who is not only in personal need of the shops for the purpose of establishing business for his sons, who are four in number, but the petitioners have also made default in payment of rent. The conduct of the petitioners in payment of rent in view of the contradictions in their stance, inconsistencies in their statements, submission of the application for payment of rent for two months and that too after the expiry of period within the meaning of section 13(6) of the Ordinance of 1959, is contumacious, wilful and against the law.

11. Adverting to the adjustment of /security as admitted by respondent No.1 is the amount to be paid by the respondent No.1 but it could not be adjusted against the rent for the period of default because the tenancy was the creation of certain terms and conditions between petitioners and respondent No.1 and the petitioners were bound to comply with the terms and conditions so settled. Respondent No.1 is bound to make the payment of outstanding amount received by him in shape of /security, whatever it may be. Furthermore, plea of payment of "pagri" does not disentitle the landlord from filing ejectment proceedings against the tenant on the ground of personal bona fide need. It is also settled that that payment of premium/"pagri" could not operate as obstacle against the right of landlord/ respondent to use his own property when genuinely required. This aspect has properly been elaborated, keeping in view the evidence of both the parties, by the learned Rent Controller and the learned Appellate Court as well. The possession of the petitioners regarding the disputed shops without payment of rent and without any tenancy is unjust, illegal and unlawful. The respondent has established his stance that he is in need of the shops in good faith for the business of his son.

12. Learned counsel for the petitioners have not been able to point out any illegality, misreading or non-reading of record in the impugned orders. The findings of the learned Rent Controller and the learned Appellate Courts regarding the ejectment of the petitioners and payment of rent are in consonance with law, as such, same require no interference through these petitions, which have no substance, thus, instant petitions are hereby dismissed, with no order as to cost. SA/215/P Petitions dismissed.