2013 PLP 1520 (SCMR)

MIAN SAQIB NISAR, J.

This appeal, with the leave of the Court dated 19-12-2012, has its genesis in an eviction petition filed by respondent No.3 against the appellants in terms of section 15 of the Punjab Rented Premises Act, 2009 (the Act, 2009). In order to defend the matter, the appellants moved an application for leave thereof, setting out various legal and factual grounds, inter alia, that there was an existing tenancy between the parties, but the tenancy agreement has not been brought inconformity with the Act, 2009 as required under section 8 and, therefore, such petition could not be entertained in terms of section 9 of the Act, 2009, without the landlord (respondent No.3) first paying the fine (penalty) to the tune of ten percent. Besides, the tenancy was for an indefinite period, as the appellants had paid some Pagri amounting to Rs.50,000 to respondent No.3 (or his predecessor-in-interest). The learned Rent Tribunal, seized of the matter, discarded all the objections of the appellants, including the two mentioned above and allowed the eviction petition of the respondent vide order dated 22-3-2011. The appellants unsuccessfully challenged this order, first in appeal and thereafter in the constitutional jurisdiction of the learned High Court, which (constitution petition) was dismissed vide impugned judgment dated 14-11-2011. Leave in this case was granted to consider the effect of sections 8 and 9 of the Act, 2009 and whether the tenancy is for an indefinite period of time on account of the amount of Rs.50,000 paid as a Pagri at the time of his induction in the demised premises.

2. The question about the effect of sections 8 and 9 of the Act, 2009 has come under consideration before a three member bench of this Court in Civil Appeal No.679-L of 2012 and this Court vide its judgment dated 21-6-2013 has held that the provisions of section 9 of the Act, 2009 are mandatory not only vis-a-vis the future tenancies, but also with respect to the existing tenancies. And if a landlord or a tenant who agitates before the Rent Tribunal for the exercise of his right and for the enforcement of the obligations of the opposite side, in terms of the provisions of the Act, 2009 notwithstanding that a period of two years is available under section 8 of the Act, 2009 to bring the existing tenancies in conformity with the Act, 2009, yet he is obliged to pay the fine/penalty under section 9 of the Act, 2009 at the time of filing the petition/application or as directed by the Rent Tribunal, as has been held in judgment afore-stated. Otherwise it shall be ridiculous and ludicrous to conceive that although he (the appellant) shall be entitled to exercise his right etc. under the Act, 2009, but is not obliged to perform his duty of paying the fine under section

8. However, it has further been held in the said judgment that in those cases where the application(s)/petition(s) (of the landlord or the tenant) have been entertained and the petitions etc. are either pending before the learned Rent Tribunal or even if finally adjudicated by the Tribunal and are pending in further hierarchy of appeal or in the constitutional jurisdiction of the learned High Court or even before this Court; and the original applicant/petitioner has not paid the fine which he was required to pay, such proceedings, shall be halted (emphasis supplied) and the original applicant/petitioner shall first be directed to pay/deposit the amount of fine as per section 9 of the Act, 2009. The amount of fine and the time whereof should be exactly specified by the Court, seized of the matter in the requisite order; and in the case of failure thereof, the original application/petition should be dismissed as has been ordained in the judgment. However, in the present case, we have been apprised that pursuant to the order of eviction passed against the appellants, the possession has also been taken over by the respondent during the pendency of the instant appeal in the execution process. Obviously, in the light of the above, though reiterating the principle of law, as has been ordained in Civil Appeal No.679-L of 2012, yet we dismiss this appeal on the basis of the principle of past and closed transaction.

3. As regards the question that the tenancy is for an indefinite period of time, learned counsel for the appellant has not been able to show us, if the alleged tenancy has been created under some registered instrument in which there is any such stipulation only for the reason that some pagri allegedly has been paid to the respondent or his predecessor-in-interest or to a person from whom the title has devolved upon the respondent, would by itself not make the tenancy in perpetuity. But this shall not foreclose the right and remedy if any available to the appellants for the recovery of the said amount of pagri from the person who is liable to return if permissible under the law, for which the appellant may bring an independent action, subject to the law (including the law of Limitation) before the appropriate forum. However, in the facts and circumstances, we are not inclined to interfere in the instant matter. Resultantly, this appeal is, accordingly, dismissed. MWA/M-21/SC Appeal dismissed.