2015 PLP 1617 (YLR)

MUHAMMAD KHALID MEHMOOD KHAN, J.

The respondent No.3 filed ejectment petition against petitioner asserting that he along with his co-owners rented out property detailed in the petition, through a written tenancy agreement in the year 1982 to petitioner. The joint property was finally partitioned and divided among the co-owners through a decree of Court in the year 2001 and the property in possession of petitioner became the respondent's share. After August, 2001, the petitioner is regularly paying the rent to respondent as per the oral agreement of tenancy. The oral tenancy agreement was only for 11 months which expired in December 2008 and the petitioner is paying rent at the rate of Rs.27,588 per month. The respondent requested the petitioner for vacation of demised property but the petitioner refused to vacate the rented premises, the respondent thus filed the ejectment petition claiming that suit property is required to him for his personal use, the petitioner has damaged the property; the petitioner has violated the terms of agreement of tenancy, the oral tenancy agreement stand expired and no more oral or written agreement exist between the parties.

2. The petitioner filed application for permission to defend and denied the alleged oral tenancy agreement and stated, he is paying rent to the owners of property under the written tenancy dated 5-12-1982, the petitioner has paid 'Pagri' of Rs.4,00,000 to respondents under the written tenancy agreement, he has not violated any term of written agreement, the ejectment is an attempt to blackmail the petitioner, the respondents intend to rent out the suit property on a higher rate of rent. The other co-owners have not filed the petition nor they have been made party to the petition. The co-owners are receiving the rent regularly through the petitioner. On 9-4-2011 the respondent refused to receive rent, the petitioner then started to deposit rent in Govt. Treasury.

3. The learned Rent Tribunal dismissed the leave petition and accepted ejectment petition, holding that respondent landlord plea that oral tenancy agreement exists between the parties is not proved and the written tenancy agreement dated 5-12-1982 will regulate the tenancy between the parties. As there is no date of termination of tenancy agreement is agreed between the parties and as such the tenancy will be governed under section 106 of the Transfer of Property Act, 1882.

4. Learned counsel for petitioner submits that learned Rent Tribunal is bound to decide the ejectment petition under Rented Premises Act 2009, the learned Rent Tribunal has wrongly held that tenancy between the parties is to be regulated under the Transfer of Property Act, 1882. Learned counsel for petitioner contends that impugned judgments suffer from misreading and non-reading of record. Learned counsel vehemently argued that the learned Rent Tribunal has relied on a lease agreement executed in 1982 but has failed to decide the fate of 'Pagri' received by the landlords. He adds that the learned Rent Tribunal has travelled beyond the pleading of the parties.

5. Learned counsel for respondent supports the judgments of two courts below and submits that the rent agreement between the parties is for 11 months which stand expired and as such the tenant has no right to retain the possession of property as tenant. Learned counsel submits that the petitioner was admittedly paying the rent to respondent after 2001, hence the co-owners were not the necessary parties to the petition. The respondent is the absolute owner of portion of property after the decree of partition.

6. Heard, record perused.

7. The respondent claims that property was joint property and all the co-owners have rented out the joint property to petitioner through written tenancy dated 5-12-1982, the co-owners decide to separate their respective shares and through a Court decree passed in 2001 the respondent became the absolute owner of the suit property and the oral tenancy came into existence between the parties, the petitioner started to pay rent to respondent from the date of decree. The respondent is in need of property for his personal use and occupation, the petitioner damaged the property and has impaired the value of property. The petitioner has violated the terms of tenancy agreement, the oral agreement stand expired.

8. The petitioner came with the defence that he entered into an agreement of tenancy with the owners of the property on 5-12-1982 and paid Rs.400,000 as 'Pagri', the respondent has not denied the tenancy agreement dated 5-12-1982 but stated that the property is still joint property and the landlords are receiving the rent through respondent, the petitioner is paying the rent regularly.

9. The learned trial court disbelieved the respondent's stance and declared that tenancy between the parties is regulatable under the written tenancy agreement dated 5-12-1982. The learned Rent Tribunal while holding that valid tenancy agreement is 5-12-1982 has erred in law, the learned Rent Tribunal has substituted the respondent's case with a new case which is not claimed by the respondent himself, the respondent when himself is not relying the written tenancy and is pleading that written tenancy was between the all owners of the property and the petitioner, under a decree between the parties/owners of the property, the respondent became absolute owner of the suit property and that petitioner orally entered into tenancy agreement with him, the respondent himself is not relying on the written tenancy how the Rent Tribunal can substitute the respondent's claim with that fact which the respondent himself is not claiming. The learned Rent Tribunal has failed to appreciate that he is relying on the written tenancy agreed to the extent of period of tenancy but is not deciding the fate of 'Pagri' which is admittedly the part of written tenancy. It is an admitted fact, under section 2(e) of the Punjab Rented Premises Act, 2009, the amount of 'Pagri' is a recognized amount payable to the landlord and the Rent Tribunal while deciding the rent petition is bound to decide the return or confiscation of the amount of 'Pagri'. Learned Rent Tribunal while deciding the rent petition has failed to attend this most important aspect of the case.

10. The respondent has not explained in his rent petition under the terms of decree between the co-owners of the suit property who is the beneficiary of amount of 'Pagri' of Rs.400,000 received by the joint landlords. Needless to mention that amount of 'Pagri' is recognized mode of payment of substantial amount by the tenant to landlord in the business community and prior to the Punjab Rented Premises Act, 2009, the law was not recognizing the amount of 'Pagri' but after the Act ibid the amount of 'Pagri' is a recognized amount. After the reorganization by law the Rent Tribunal is bound to decide whether the said amount is returnable to tenant at the time of vacation of property or not?

11. In the present case, it is the case of respondent/landlord that after the court decree between the owners, the respondent became the absolute owner of the suit property and after 2001, the petitioner orally accepted him his landlord, the petitioner/tenant has denied the oral tenancy, hence Rent Tribunal has erred in law while deciding that oral tenancy did not exist between the parties and the tenancy will be regulated under the written tenancy which is between the petitioner and 4 owners of the suit property, the respondent is claiming that through a decree the respondent became the owner of suit property independently and he again entered into an oral tenancy agreement in the year 2001, hence question is who will be responsible for the return of amount of 'Pagri' which now is a recognized amount under the Act ibid.

12. It is also a question whether the amount of 'Pagri' is returnable of the amount paid or with addition of devaluation of currency as the tenant is enhancing the rent according to law as per statute. The Rent Tribunal while deciding the fact of 'Pagri' has to attend the above said question.

13. In these circumstances, the impugned judgments are liable to be set aside and the petitioner is entitled for the grant of leave to contest, which is granted accordingly. The petition is allowed; the judgments of both the courts below dated 8-10-2011 and 24-4-2012 are set aside. Resultantly, the ejectment petition is remanded to learned Rent Tribunal who will decide the same after recording the evidence of the parties.

14. There is no order as to costs. SAK/Z-12/L Case remanded.