2010 PLP 458 (MLD)

IQBAL HAMEED-UR-RAHMAN, J.

With the concurrence of learned counsel for both sides, this is being dealt as a Pakka case.

2. By way of instant petition, the petitioner has called in question the judgment, dated 8-7-2009, passed by the learned Additional District Judge, Lahore Tribunal; whereby appeal filed by the petitioner against the judgment, dated 11-5-2009, passed by the learned Rent Controller, Lahore was dismissed.

3. Facts of the case, succinctly, required for determination of the instant writ petition are that the respondents being successors-in-interest of Mst. Mumtaz Begum filed a petition for entering their names as landlord of the petitioner in the Rent Register under section 5 of the Rented Premises Ordinance, 2007 regarding premises bearing property No.S-19-R-5, known as Shop No.2, Taj Mansion, situated at Shahrah-e-Quaid-e-Azam, Lahore, in the Court of learned Rent Controller, Lahore with the averments that on 12-11-2008, they ;agreed to sell this shop to the petitioner against a consideration of Rs.7,50,00,000 and received a cheque of Rs.25,00,000 against a token receipt, dated 12-11-2008; wherein it was stipulated that an agreement to sell shall be reduced into writing between the parties on 24-12-2008 subject to payment of Rs.2,25,00,000 as earnest money. It was further mentioned in the token receipt, dated 12-11-2008 that the petitioner shall pay Rs.2,50,000 as monthly rent with effect from 1-11-2008 with regard to the suit property till the execution of sale-deed and in this way the petitioner became the tenant of the respondents as per above token receipt. That the petitioner not only failed to pay earnest money on the fixed date i.e. 24-12-2008 but he also did not pay monthly rent w.e.f. 1-11-2008 till the filing of the suit although the respondents made repeated requests.

4. The petitioner as respondent contested the petition by way of filing written reply. Learned Rent Controller seized with the matter, vide judgment, dated 11-5-2009 accepted the petition: It would be advantageous to reproduce the operative part of the judgment, which reads as under:-- "The relationship of landlord and tenant was impliedly admitted from the contents of the receipt dated 12th November, 2008. The contents of the receipts have not been denied by the present respondents, therefore, the respondent cannot resile from his admission with regard to the petitioner's titled as being landlord. The record also reveals that after the execution of said receipt, the present petitioners had got title to the property in dispute as the owner of the same but neither the respondent has executed the sale-deed nor surrendered the possession of the. tenancy to the landlord. In this scenario the relationship of landlord and tenant is established. The rate of rent was mutually agreed in between the parties which is still intact. The same has not been paid to the landlord/present petitioner. So as the respondent has acknowledged the receipt, dated 12th November, 2008 which clearly establishes the relationship of landlord and tenant between the parties owing to the failure of non executing the sale-deed till the agreed time, therefore, the petitioners are well entitled to get their names registered as owner of the property as prayed for. It is also worth mentioning here that respondent is himself responsible for not surrendering the possession of the property in dispute in favour of the landlord even after his failure for non-executing the sale-deed of the property in dispute, therefore, no liability seems to be castable upon the present petitioners for non-complying the provisions of Punjab Rented Premises Ordinance, 2007. The petition is hereby accepted and decided accordingly."

5. Being aggrieved of the above-said judgment, the petitioner preferred an appeal before the learned Additional District Judge/Appellate Authority. However, the learned Additional District Judge, Lahore vide judgment 8-7-2009 while upholding the judgment of the learned Rent Controller, dismissed the appeal. The petitioner has assailed both the judgments of the learned lower Courts/tribunals.

6. Learned counsel for the petitioner contends that both the impugned judgments are against the law and facts of the case; that while rendering the judgments, both the learned lower Courts fell in error in misinterpreting the sale agreement/receipt; whereas it is established principle of law that the document is to be interpreted as a whole; that from the reading of agreement/receipt no other opinion can be formed except that it is a sale agreement and monthly payment mentioned in this very document is just a compensation for user of the said property till the execution of the sale-deed and this is not a rent note/rent deed as according to dictionaries, rent is meant compensation for use of any property or any other article; that provisions of section 5 of the Rented Premises Ordinance, 2007 are not attracted to the facts and circumstances of the instant case and the matter could not have been agitated before the Rent Controller rather proper course of action is filing of a suit for specific performance which has not been done by the respondents as they have no document; that Rented Premises Ordinance, 2007 has elapsed as it was not placed in the Parliament for its approval and Punjab Rented Premises Act, 2009 has been promulgated on 17-11-2009, which is not applicable to the case of the petitioner being not implemented with retrospective effect. To strengthen his case, learned counsel for the petitioner has relied upon the authoritative law cited in the cases of Mian Muhammad Nawaz Sharif v. President of Pakistan and others (PLD 1993 SC 473), Aurangzeb through L.Rs. and others v. Muhammad Jaffar and another (2007 SCMR 236), Mst. Mariam Bibi and others v. Muhammad Ali through L.Rs. (2007 SCMR 281), Raja Ali Shan v. Messrs Essem Hotel Ltd. and others (2007 SCMR 741) and Ghulam Murtaza v. Abdul Salam Shah and others (2007 SCMR 1062).

7. As against above, the learned counsel for the respondents has vehemently controverted the arguments advanced by learned counsel for the petitioner. It has been contended that denial of the writ petitioner from the relationship of landlord and tenant has been disbelieved by the learned Rent Controller after due appraisal of evidence. It is further contended that the petitioner could only sign a token by paying Rs.25,00,000 but he failed to enter into agreement to sell on 24-12-2008 after paying the remaining sale consideration. It is also contended that the writ petitioner cannot approbate and reprobate from his admission of his tenancy in his reply of application for registration of name of landlord in Rent Register, in para.2 of his appeal against order of ejectment, dated 23-7-2009 as well as deposit of monthly rent in government treasury for the month of September, 2009 on 14-9-2009 about rented shop/premises in question. In the end learned counsel for the respondents has argued that once a person is inducted as tenant he will be dealt with as a tenant. To strengthen his case, besides citing various provisions of the Punjab Rented Premises Act, 2009, the learned counsel has also relied upon the dictums laid down b2: the Hon'ble Supreme Court of Pakistan in the case of Abbas Ali Khan v. Mst. Farhat Iqbal and 2 others (2009 SCMR 1077), Muhammad Ali and others v. Province of the Punjab and others (2009 SCMR 1079), Zarin Qaisar and others v. Ahmad Faraz and others (2009 SCMR 1173).

8. Arguments led pro and contra have been given anxious consideration. I have also gone through the record of the case in detail with the able assistance of learned counsel for both sides.

9. To examine the contention of learned counsel for the petitioner that after perusing agreement/receipt no other opinion can be formed except that it is a sale agreement and monthly payment mentioned in this very document is just a compensation for user of the said property till the execution of the sale-deed and this is not a rent note/rent deed, it would be advantageous to reproduce the receipt entered into between the parties, which reads as under:-- "Received for and on behalf of all the owners of our property # 2 D S Building The Mall, Lahore known as Dinga Singh Building;- an amount of Rs.2,500,000 (Rupees two million five hundred thousand only) as token money vide cheque # 5555185, dated 12 November, 2008 drawn on United Bank Ltd. Manga Mandi Branch, Lahore from Messrs Footlib (Pvt.) Ltd., 45 K.M. Main Multan Road, Lahore through its Chief Executive, Mr. Wasim Zakaria, prospective buyer of above-said property comprising shop No.2, D.S. Building, The Mall, Lahore and this is purely a token amount about this transaction. It is agreed that payment of Rs.2.25 crores shall be made on 21 December, 2008 on signing of the sale agreement and remaining amount of Rs.5,00 crorers shall be paid by the Buyer to the Sellers on 12 February, 2009 at time of completion of sale-deed subject to the clearance of documents. Monthly rent has been agreed to be paid at the rate of Rs.250,000 (Rupees two hundred and fifty thousand only) from 1-11-2008 till execution of sale-deed of property in question." The contents of the tenancy agreement are mentioned in section 6 of the Punjab Rented Premises Ordinance, 2007 which reads as under:-- "A tenancy agreement shall contain as far as possible the following: -- (a) particulars of landlord and the tenant; (b) description of the premises; (c) period of the tenancy; (d) rate of rent, rate of enhancement,, due date and mode of payment of rent; (e) particulars of the bank account of the landlord, if the rent is to be paid through a bank; (f) the purpose for which the premises is let out; and (g) amount of advance rent, security or pagri, if any." . When the receipt entered into between the parties and the contents of section 6 of the Punjab Rented Premises Ordinance, 2007 are put side -by-side, it is clear that the receipt of token money particulars of landlord and tenant, description of the property, period of tenancy and rate of rent has been mentioned, which are the main ingredients for renting out a property. Even if for the time being the above contention of learned counsel is presumed to be true, admittedly, perusal of the first two paras of the receipt entered into between the parties reveals that it was for the sale of the property but the fact remains that it was subject to payment of the remaining amount till 12th February, 2009. The third paragraph is with regard to payment of monthly rent till the date of execution of sale agreement. It is almost a settled principle that when the agreement is not arrived at between the parties, the token money is forfeited and in such circumstances only third para of the receipt shall remain in field and the relationship of landlord and tenant shall be established automatically. It is also settled principle of interpretation that the Courts should adopt an interpretation, which may give meanings to each word of an enactment taking into consideration the spirit of such document.

11. Now Adverting to the contention of learned counsel for the petitioner that provisions of section 5 of the Rented Premises Ordinance, 2007 are not attracted to the facts and circumstances of the instant case, suffice it to say that in such a situation when the `Buyer' has failed to enter into sale agreement after making the payment of sale consideration coupled with the situation that tenancy clause also finds mentioned in the receipt, the later shall come into play. furthermore, the petitioner cannot approbate and reprobate from his admission of his tenancy as is envisaged in his reply of application for registration of name of landlord in Rent Registrar, in para.2 of his appeal against order of ejectment, dated 23-7-2009 as well as he also deposited monthly rent in government treasury for the month of September, 2009 on 14-9-2009 about rented shop/premises in question.

12. The contention of learned counsel for the petitioner that only suit for specific performance could be filed, is not believable as in the presence of specific clause in the receipt for making the payment of rent coupled with the failure of the petitioner for execution of agreement to sell/sale-deed after making the payment, the respondents adopted the proper course by approaching the learned Rent Controller. Furthermore, if the petitioner did not accept the jurisdiction of the learned Rent Controller, he should have agitated the matter before the proper forum. However, in the instant case, the petitioner not only failed to approach the competent forum but he also went on to file appeal before the learned Additional District Judge with the powers of Rent Tribunal against the judgment of the learned Rent Controller. It is also settled principle of law that the stance taken at the trial stage and before the first appellate forum cannot be substituted at the level of High Court.

13. It is also noteworthy that the case-law cited by learned counsel for the petitioner is quite distinguishable from the peculiar facts of the instant case especially in the presence of third clause of receipt, however, the dictums of the Hon'ble Supreme Court of Pakistan advanced by learned counsel for the respondents in the cases of Abbas Ali Khan v. Mst. Farhat Iqbal and 2 others (2009 SCMR 1077), Muhammad Ali and others v. Province of the Punjab and others (2009 SCMR 1079), Zarin Qaisar and others v. Ahmad Faraz and others (2009 SCMR 1173) are applicable to the instant case.

14. Moreover, interference of this Court in the extra-ordinary constitutional jurisdiction can only be made when glaring misreading or non-reading of any material floats on the file, which fact is unfortunately missing in the instant case. It is also settled principle of law that constitutional petition is not maintainable against the concurrent findings of facts of the tribunals below arrived at while proper appreciation of material available on record, as per dictum laid down by the Hon'ble Supreme Court in Khuda Bakhsh v. Muhammad Sharif (1974 SCMR 279). This Court also lacks jurisdiction to substitute its own findings in place of concurrent findings of facts of the Tribunal or Courts below. Reference in this context can be made to the cases of Mazhar-ul-Haq alias Mazhar Abbas v. Ghulam Muhammad and 2 others (2005 CLC 1169), Messrs Airport Support Service v. The Airport Manager, Karachi (1998 SCMR 2268).

15. Having seen the case from every angle I fail to find any irregularity/illegality committed by the learned Courts/tribunals below. The judgments impugned through the instant writ petition are well-reasoned and no exception can be made to the same by this Court while exercising constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.

16. In sequel to above, this petition has failed, which is accordingly dismissed. The parties are left to bear their own expenses. S.A.K./W-3/L Petition dismissed.