2011 PLP 1498 (CLC)

SYED KAZIM RAZA SHAMSI, J.

Since both these constitutional petitions bearing Writ Petition No.7416 of 2010 and Writ Petition No.7417 of 2010 involved common questions of law and deal with the same property, therefore, are being disposed of by this single judgment.

2. Both these constitutional petitions are directed against an order dated 25-1-2010 passed by Ch. Shahid Naseer, learned Additional District Judge, Lahore whereby the appeals filed by the tenant Yaqoob Khan against his eviction order dated 10-7-2009 passed by Mrs. Samina Hayat, learned Rent Controller, Lahore from the two Shops Nos.2 and 3, were accepted and ejectment petitions were dismissed.

3. In the ejectment petitions filed on 8-12-2006 under section 13 of Punjab Urban Rent Restriction Ordinance, 1959 in respect of Shops No.2 and 3 situated in 10-Main Bazar, Garhi Shahu, Lahore filed on the grounds of default in the payment of rent, personal need and violation of terms of the agreement. The allegations were negated in written reply by respondent No.2. The resume of facts have been detailed in the judgments of two courts below. The learned Rent Controller, after framing issues on the disputed facts recorded respective evidence of the parties and vide order dated 10-7-2009 accepted the ejectment petitions on the grounds of default in the payment of rent and personal need. Two separate appeals were preferred against the eviction order by respondent No.2 before first appellate court which did not agree with the findings of learned Rent Controller, Lahore in respect of all the three grounds, consequently, accepted the appeals of the tenant and dismissed the ejectment petitions.

4. The landlord through the instant two constitutional petitions have called into question vires of the dismissal of the ejectment petitions.

5. It is contended by the learned counsel for the petitioner that the learned first appellate court has erred in dismissing the ejectment petitions which findings are based upon misreading of material evidence on the record. Learned counsel further challenged the legality of the impugned orders on various grounds as set out in the memorandum of constitutional petitions.

6. Conversely, the learned counsel for respondent No.2 has raised preliminary objection about the maintainability of the constitutional petitions submitting that the ejectment petitions were filed under the old law i.e. Punjab Urban Rent Restriction Ordinance, 1959, which provides remedy of appeal against the order of first appellate court but the petitioner has challenged the vires of the orders through the constitutional petitions which are not maintainable. On merits, it is argued that the findings of the learned first appellate court are based upon sound appreciation of evidence, therefore, prayed for the dismissal of the petitions

7. I have considered the submissions made by the learned counsel for the parties and gone through the record minutely.

8. The objection taken by the learned counsel for respondent No.2 has been considered and found untenable. It is absolute rule that where alternate remedy in the form of appeal or revision is available, the constitutional petition is not maintainable without availing that remedy but in exceptional cases, this bar can be ignored to administer substantial justice between the parties as held in the judgment of apex Court recorded in the case of Farzand Raza Naqvi and 5 others v. Muhammad Din and others (2004 SCMR 400). It has been observed in the said judgment that if the order passed by a court suffers from a defect of jurisdiction or is void order, in such circumstances, the rule of availing remedy of appeal can be dispensed with. No doubt, the order passed by both the courts below are neither void nor suffer from any defect of jurisdiction but this court is influenced by fact that the petitioner in the instant cases is pardanasheen lady who usually are not accustomed with the legal procedure and the working of the court. The institution of the instant constitutional petitions instead of filing of appeals in this court could be on the basis of her ignorance of court working and procedure to be adopted for availing remedy or a mistaken advice. In such-like circumstances, when law ges B preferential treatment to the women folk, this court deems it appropriate to entertain these constitutional petitions. The instances of special treatment to folk can be examined in section 132, Civil Procedure Code, 1908 exempting women from appearance in courts; Proviso to section 497 Code of Criminal Procedure, 1898, wherein except for certain offences bail is to be granted to female as matter of right and Women Protection Act, 2006. Even in chain of judgments of superior courts, have given special treatment to illiterate Pardanasheen females, by cancelling documents on the ground that same were not read over to lady and she was not made to understand the contents of that document before affixing thumb-impression or signatures thereto. Thus, present petitioner is also entitled to same treatment and her petitions are entertainable.

9. The other reason to entertain these petitions is that if order of first appellate court is maintained as such, the petitioner has to face rigour of fresh litigation under new law and her all attempts to have justice from courts since 8-12-2006, would prove futile.

10. On merits, the examination of the judgment recorded by the learned first appellate court appears suffering from material legal infirmities. For instance, the court under Issue No.1 held that there is no justification for enhancement of rent from Rs.500/- to Rs.5000/- per month without any fresh agreement to this effect, that no fresh settlement or agreement was executed after the expiry of tenancy period and that the petitioner failed to establish the period of default in the payment of rent. There findings are whimsical and not supported by record. It has been provided in Ordinance (ibid) that after the expiry of rent agreement, a tenant becomes a statutory tenant and cannot be evicted from rented premises without due process of law. If no fresh agreement is executed between the parties, such tenancy shall be continued and governed by the terms of expired agreement. The first appellate court also failed to note or require whether respondent No.2 had even deposited the rent of Rs.400/- which had been agreed upon between the parties since long. At this juncture, it is observed that in the year, 1990 an amendment was made in the rent laws whereby it was mandatory for tenant to increase rent to the extent of 25% after expiry of three years himself and if he failed to pay or tender the enhanced rent to the landlord, he was treated as defaulter in the payment of rent. The first appellate court has also ignored this legal proposition. Needless to say that the petitions for ejectment were filed in the year, 2006 when the fresh law in the form of Ordinance was not promulgated, thus, according to settled law, the ejectment petitions would be governed by law which was available- at the time of institution of the ejectment petitions.

11. In view of these legal questions which have not been determined by the learned first appellate court while dismissing the ejectment petitions, the impugned orders are declared as null and void. The petitions are accordingly allowed. The appeal filed by Yaqoob Khan respondent No.2 shall be deemed to be pending before the first appellate court which shall decide the same afresh after keeping in view the observation made in this order. The learned first appellate court shall decide both the appeals preferably before proceeding on special casual leave, under intimation of this court. The parties are left to bear their own costs. S.A.K./R-28/L Case remanded.