2016 PLP 48 (CLCN)

ATIR MAHMOOD, J.

Brief facts of the case are that the petitioner filed a suit for declaration regarding benami transaction against the respondent in learned Civil Court, Sargodha regarding the property fully described in the plaint. Subsequently, the respondent filed an ejectment petition before learned Rent Tribunal, Sargodha. The petitioner filed petition for leave to contest which was allowed by learned Rent Tribunal vide order dated 06.09.2010 subject to deposit of rent @ Rs.6,000/- per month within 30 days of passing of the order. Since the petitioner did not comply with the said order, the ejectment petition was accepted by learned Rent Tribunal vide order dated 14.10.2010. Feeling aggrieved, the petitioner filed appeal which was also dismissed by learned Additional District Judge V Sargodha vide judgment dated 20.01.2011. Hence this writ petition.

2. Learned counsel for the petitioner inter alia contends that learned courts below have failed to take into consideration the fact that the petitioner has filed a suit for declaration regarding the same property prior to filing the ejectment petition; that neither there exists relationship of tenant and landlord nor any tenancy agreement; that the petitioner is not a tenant but the owner of the property in question; that the alleged rent deed between the parties is not registered with the Rent Registrar and in absence of registered deed, a tenant cannot be ejected under the Punjab Rented Premises Ordinance, 2007 and Punjab Rented Premises Act, 2009; that only ground of personal need taken by the respondent was not available to him under the said Ordinance/Act; that the impugned order/judgment of learned courts below are against law and fact. He has emphasized more on the point that since the relationship of tenant and landlord was denied by the petitioner, it was incumbent upon the learned Rent Tribunal to frame issue on this point and then decide the same and that in case of denial of the relationship of tenant and landlord between the parties, the learned Rent Tribunal was not legally justified to impose condition of payment of rent upon the petitioner for allowing the petition for leave to contest, therefore, this writ petition be allowed, the impugned order and judgment be set aside and the ejectment petition be dismissed. He has relied upon the law laid down in a case reported as Lubna Shuja v. Rent Controller and another (2013 CLC 414), Muhammad Wakil Khan v. Additional District Judge, Lahore and 3 others (2007 CLC 1151), Muhammad Ismail v. Israr Ahmad (PLD 1961 (W.P.) Lahore 601, Rehmatullah v. Ali Muhammad and another (1983 SCMR 1064) and Abdul Hameed Naz and 7 others v. Mst. Razia Begum Awan and 4 others (1991 SCMR 1376).

3. On the other hand, learned counsel for the respondent has vehemently opposed this writ petition and supported the impugned orders while relying upon the law laid down in cases reported as Ahmad Ali alias Ali Ahmad v. Nasar-ud-Din and another (PLD 2009 SC 453), Shajar Islam v. Muhammad Siddique and 2 others (PLD 2007 SC 45), Amjad Mehmood Khokhar v. Farasat Hussain and 2 others (2009 CLC 114) and Haji Abdul Raheem v. Mst. Ummat-ul-Qayyum and 2 others (2011 YLR 455).

4. Arguments heard. Record perused.

5. The crux of whole arguments of learned counsel for the petitioner is that since the petitioner had denied the relationship of landlord and tenant between the parties being in possession of the property in his own right and also had filed a suit for declaration regarding the same property before the Civil Court, Sargodha, the learned Rent Tribunal was not justified to pass order under section 24 of the Punjab Rented Premises Act, 2009 directing the petitioner to deposit the rent. His reliance is upon the judgment passed by this Court in case reported as Lubna Shuja v. Rent Controller and another (2013 CLC 414) wherein it has been held that in case of denial of relationship of landlord and tenant between the parties, the learned Rent Tribunal cannot pass the order under section 24 of the Punjab Rented Premises Act, 2009 until and unless such relationship is established.

6. The Punjab Rented Premises Act, 2009 has been promulgated in order to regulate relationship of landlord and tenant in respect of rented premises. The definitions of landlord and tenant given in this Act are a bit different from those given in the old law, i.e. West Pakistan Rent Restriction Ordinance, 1959. In the old law, a landlord was a person who was entitled to receive rent in respect of any building or rented land whether on his own account or on behalf of some other person whereas in the present law, i.e. Punjab Rented Premises Act, 2009, landlord and tenant have been defined in section 2 in the following words: "2(d) "Landlord" means the owner of premises and includes a person for the time being entitled or authorized to receive rent in respect of the premises. 2(1) "Tenant" means a person who undertakes or is bound to pay rent as consideration for the occupation of a premises by him or by any other person on his behalf and includes: (i) a person who continues to be in occupation of the premises after the termination of his tenancy for the purpose of a proceeding under this Act; (ii) legal heirs of a tenant in the event of death of the tenant who continue to be in occupation of the premises; and (iii) a sub-tenant who is in possession of the premises or part thereof with the written consent of the landlord."

7. According to my understanding, the enactment of this special law is aimed at to minimize the tenure of litigation between the parties. If the word 'tenant' is confined to a person who admits the tenancy between the parties, then it may not be in conformity with the definition of tenant as given under section 2(1) of the Act which includes a person who is in occupation of the premises. The Rent Tribunal while granting leave to contest has been given ample powers to pass order to deposit the arrears of the rent as well as the future rent under section 24 of the Punjab Rented Premises Act which reads as under: "

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 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). (3) In case the tenant has not paid a utility bill, the Rent Tribunal shall direct the tenant to pay the utility bill. (4) If a tenant fails to comply with a direction or order of the Rent Tribunal, the Rent Tribunal shall forthwith pass the final order." Perusal of above provision makes it clear that the learned Rent Tribunal can direct a tenant for deposit of rent of the premises. If the tenancy between the parties is admitted, it means that the defending party admits himself as tenant in the property and in such an eventuality, the provision is unambiguous and there is no dispute. The dispute is only on the point where the tenancy is denied and a plea is taken by the defending party that he is in possession of the property in his own rights. In my opinion, if the tenancy is denied and plea of possession over the property in his own right is taken by the defending party, the defending party must produce before the court some documents to prima facie show his title over the property to establish his claim. Mere denial of the tenancy without any such solid proof does not debar the Rent Tribunal from passing direction for deposit of the rent in the interregnum as in such circumstances, the defendant will be deemed to be a person in occupation of the premises falling under definition of tenant given in section 2(1) of the Act. Even in case of straightaway denial of tenancy on the basis of a civil suit filed by the alleged tenant for determination of his title as an owner of the property cannot restrict the powers of the Rent Tribunal to pass the order for deposit of the rent.

8. If an alleged tenant is allowed to deny the relationship of landlord and tenant without having any proof of title of the disputed property in his favour, then it will be very easy for any person, who takes over a property as a tenant and fails to pay the rent to the landlord/owner, to deny the relationship of landlord and tenant. In case ejectment petition is filed against him, he will gain more and more time on the pretext of determination of such relationship without deposit of any tentative rent, leaving the landlord at his mercy for an indefinite period till the time, the relationship of landlord and tenant is established after recording of evidence which, in my opinion; is not will of the legislature. In order to safeguard rights of both the parties, a mechanism has been given by the legislature whereby the Rent Tribunal is empowered to pass direction for deposit of past and future rent which might or might not be disbursed to the ejectment petitioner till decision of the eviction petition. If the proceedings ultimately culminate in favour of the ejectment petitioner, the tribunal may pass order for disbursement of the amount so deposited in favour of the ejectment petitioner and in case the decision comes against him, the alleged tenant may be allowed to withdraw the amount deposited by him. In all the circumstances, the parties must obey the order of the court/tribunal and any non-compliance of order of the court may result in dismissal or allowing of the petition.

9. In the present case, the ejectment petitioner is prima facie owner of the premises on the basis of a sale deed whereas the petitioner (respondent in the ejectment petition) could not show his title over the disputed property, therefore, he was rightly directed to deposit the rent as his denial of relationship was not supported by any concrete documentary evidence and appeared to be an attempt to continue his possession over the property without payment of rent to the landlord which cannot be allowed under the law.

10. There is yet another aspect of the case that the petitioner filed a Writ Petition No.1768/2010 against order dated 26.07.2010 whereby the petitioner was directed to deposit the tentative rent. The said writ petition was admitted for regular hearing by this Court and while granting the interim relief, it was ordered as under: "C.M. No.2/2010

4. Subject to notice, the petitioner will continue to deposit the rent in terms of order passed by the learned Rent Controller but the said rent will not be withdrawn by the respondent till the next date of hearing." Then the petitioner withdrew the said writ petition vide order dated 21.06.2011 which reads as under: "The learned counsel for the petitioner wants to withdraw this petition. The petition is accordingly dismissed as having been withdrawn."

11. Admittedly, the respondent failed to comply with the order passed by learned Rent Tribunal for deposit of rent @ Rs.6000/- per month within the specified time of 30 days which was a mandatory requirement of law which entailed the penal consequences.

12. The case law relied upon by learned counsel for the petitioner is quite distinguishable. So far as the dictums laid down in case reported as Lubna Shuja v. Rent Controller and another (2013 CLC 414) are concerned whereby it has been held that in case of denial of relationship of tenant and landlord between the parties, the learned Rent Tribunal must decide the relationship and without determination, of such relationship, the Tribunal cannot direct the respondent in the ejectment petition to deposit the rent, I, with utmost respect to the Hon'ble Judge, dissent with the same. In my humble opinion where an alleged tenant takes plea of possession over, the property in his own rights and, prima facie, denies the relationship of landlord and tenant contumaciously just in order to avoid payment of rent to the landlord but is unable to submit before the court any title document, he will be considered as a tenant and the ejectment petitioner as landlord and the learned Rent Tribunal in order to safeguard rights of the landlord may allow leave to contest subject to deposit of rent. In case of non- compliance of such order, the penal provision of section 24 of the Act will be attracted and the ejectment petition must be allowed forthwith.

13. In the instant case, the petitioner has taken a specific plea that he is not a tenant under the respondent rather he is real owner of the property and the respondent is mere a benamidar and that he has filed a suit for declaration in the civil court in this regard. Suffice it to say that until and unless, the petitioner proves his case before the civil court and a decree is passed in his favour, the said plea is just his assertion and does not create any right or title in his favour nor gives him a licence to continue his possession over the premises without payment of rent, which is ostensibly owned by the respondent on the basis of a registered sale deed in his favour.

14. There are concurrent findings against the petitioner. The order passed by learned courts below do not suffer from any jurisdictional defect, illegality for irregularity calling for interference by this Court in its constitutional jurisdiction.

15. For the aforementioned reasons, this writ petition has no merit, hence dismissed. ZC/S-112/L Petition dismissed.