2018 PLP 42 (CLCN)

MUDASSIR KHALID ABBASI, J.

Through this constitutional petition, petitioner has challenged the order dated 19.09.201.6 passed by respondent No.1/learned Rent Tribunal Multan wherein petitioner was directed to deposit Rs.2,42,000/- as rent under protest in the court before 10th of each month in order to ensure recovery, if needed.

2. Brief facts of the case are that respondent No.2 filed an ejectment petition under Section 15 of the Punjab Rented Premises Act, 2009 regarding property No. 858-D, Bosan Road Multan measuring 3-kanals and 1-marla on the ground of expiry of period of tenancy, rent default and damage caused to the property. Also sought recovery of arrears of rent from May 2015 @ Rs.242,000/- per month.

3. Petitioner filed an application for leave to contest stating therein that there exists no relationship of landlord and tenant between the parties and also filed reply to the petition. Leave to contest was allowed and besides other issues an issue was framed that whether there exists any relationship of landlord and tenant between the parties, at the same time, learned Rent Tribunal directed the petitioner to deposit rent Rs.242,000/- under protest in the Court to ensure recovery, if needed.

4. Learned counsel for the petitioner contends that the impugned order is the result of misreading and non-reading of facts, hence, is liable to be declared null and void. Further argued that the impugned order has been passed in slipshod and haphazard manner, without application of independent judicious mind. Moreover, learned Rent Tribunal has failed to appreciate documentary evidence and contentions raised by the petitioners.

5. On the other hand, learned counsel for respondents has vehemently opposed this petition and raised objection that present petition has been filed just to prolong the proceedings of the case. Further argued that present petitioner is occupying the premises illegally and is liable to be ejected forthwith.

6. I have given conscious thought to the contentions of learned counsel for the parties and perused the record:

7. It is an admitted fact that the relationship of tenant and landlord is denied and besides other issues the following issue has been framed: Whether there exists relationship of landlord and tenant between petitioner/applicant and respondent? OPA

8. Although no formal application under section 24 of the Punjab Rented Premises Act, 2009 for deposit of rent was filed, however, while accepting the application for leave to contest and framing the issues learned Rent Tribunal has passed an order whereby the petitioner was directed to deposit rent Rs.242,000/- under protest in the Court before 10th of each month.

9. Before dilating upon the controversy, section 24 of the Act ibid is reproduced herein below:-

24. Payment of rent and other dues pending proceedings.

(1) If an eviction application is filed, the Rent Tribunal, while granting leave to contest, shall direct the tenant to deposit the rent due from him within a specified time and continue to deposit the same in accordance with the tenancy agreement or as may be directed by the Rent Tribunal in the bank account of the landlord or in the Rent Tribunal till the final order. (2) If there is a dispute as to the amount of rent due or rate of rent, the Rent Tribunal shall tentatively determine the dispute and pass the order for deposit of the rent in terms of subsection (1).

10. By now it has become a settled principle of law that at the first instance the court has to determine its jurisdiction and then to proceed further, although this relates to the general rule of jurisdiction, may it be pecuniary or territorial jurisdiction but with particular reference to the Punjab Rented Premises Act, 2009, it is a question of vital importance that where the relationship of tenant and the landlord is yet to be established, could Rent Tribunal pass an order for deposit of rent which is tentatively assessed. Answer is in negative because Rent Controller was not justified in law to pass such order before framing the issues and decision regarding the existence of the relationship of landlord and tenant where the same is denied, Rent Controller must, at the first instance decide the issue. In this particular case, Rent Controller though has rightly framed the issue qua the existence of relationship but had committed grave legal error while directing the petitioner to deposit the rent. Once tenant denies the relationship, it was not permissible for Rent Tribunal to pass such order, as question of jurisdiction is to be decided first.

11. The afore quoted proposition of law has recently been addressed by the Hon'ble Supreme Court in an exhaustive and elaborate manner in case titled "Mian Umer Ikram ul Haque v. Dr. Shahida Hussain and another" (2016 SCMR 2186). Relevant paragraphs are reproduced as under:- "if the respondent in a rent matter denied the relationship of tenancy, a question of jurisdictional fact would arise. The doctrine of jurisdictional fact connotes that the jurisdiction of an adjudication forum is dependent upon the ascertainment and determination of certain facts. In this behalf, N.S. Bindra in the Interpretation of Statutes Seventh Edition, 1984, p.229, has defined "Court's jurisdiction to determine the jurisdictional fact", as follows:- "Court's jurisdiction to determine jurisdictional facts. It is well settled that a Tribunal can investigate into the facts relating to the exercise of its jurisdiction when that jurisdictional fact itself is in dispute. Where a Tribunal is invested with jurisdiction to determine a particular question, it is competent to determine the existence of the facts collateral to the actual matter which the Tribunal has to try. This power to decide collateral facts is the foundation for the exercise of its jurisdiction." In Halsbury's Laws of England, it has been stated,- "Where the jurisdiction of a tribunal is dependent on the existence of' a particular state of affairs, that state of affairs may be described as preliminary to, or collateral to the merits of the issue. It at the inception of an inquiry by an inferior tribunal, a challenge is made to its jurisdiction, the tribunal has to make up its mind whether to act or not and can give a ruling on the preliminary or collateral issue; but that ruling is not conclusive"." "It is a settled canon of statutory interpretation that where a statute uses a particular word(s), the presumption is that such word(s) is illustrative of the legislative intent unless there are very cogent reasons to displace the same and in our view, there are no such reasons that justify interpreting section 24 of the Act in a way that defeats its express meaning. 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. As regards the argument of the learned counsel for the respondent that where -there is a contumacious denial by the respondent of an eviction application the Rent Tribunal should pass an order for payment of rent due, suffice it to say that contumacious denial of the relationship of tenancy would form the basis for declining relief to the respondent. Where the denial, prima facie, appears to be tainted and contumacious, the Rent Controller would refrain from granting leave to the respondent as a matter of right and course, in a perfunctory manner. Instead, when the Rent Tribunal, without framing an issue, concludes that the denial is contumacious in nature, it may refuse to grant leave and allow the eviction application. Whilst so doing, the Tribunal can simultaneously pass an order under section 24 of the Act finally determining the rent due from the tenant and direct that the same be deposited/paid. However, where once leave has been granted and the Tribunal has first to decide the question of its own jurisdiction, then in that eventuality, on account of the clear provisions of section 24 ibid read with the definition of the word 'tenant' appearing in the Act, the Rent Tribunal is precluded from passing an order without first determining the jurisdictional fact. Once the relationship of tenancy has been denied the jurisdiction of the Rent Tribunal has essentially been called into question and needs to be resolved before the Tribunal can proceed to pass an order for payment of rent due."

12. In another pronouncement reported as "Ghulam Rasool v. Mian Khurshid Ahmed" (2000 SCMR 632), Hon'ble Supreme Court has observed as follows: "Be that as it may, there is no cavil with the proposition that where relationship of landlord and tenant is denied, the Rent Controller should, in the first instance, decide this issue before directing the tenant to deposit the arrears of rent, if any, or future rent."

13. Undoubtedly, Punjab Rented Premises Act, 2009 is meant to counter the deceitful and dishonest pleas taken by the tenants but at the same time, foundational principles of jurisdictional fact cannot be sacrificed at any cost. In view of what has been enumerated above this constitutional petition is allowed and order dated 19.09.2016 passed by the learned Rent Tribunal, Multan is set aside. No order as to costs. MQ/U-8/L Petition allowed.