2013 PLP 675 (CLC)

IBAD-UR-REHMAN LODHI, J.

Pre-admission notice was issued to respondent No.3, however after hearing learned counsel for respondent, I consider it appropriate to decide the case on merits and as such the case is admitted to regular hearing. Learned counsel for respondent No.3 is present and accepts notice on behalf of said respondent.

2. Since short point is involved, learned counsel for parties request for hearing of the case today. So be it.

3. By means of this judgment, I intend to dispose of Writ Petition No.1387 of 2011 and Writ Petition No.1388 of 2011 as in both the matters the parties and question of law are the same.

4. Respondent herein preferred ejectment petition on 22-10-2008 mainly on the grounds of structural damage to rented premises, change of use of the property and expiry of tenancy.

5. After appearance on 18-12-2008 for the first time, the petitioner subsequently filed petition for leave to contest on 2-1-2009. The learned Special Judge (Rent) on 6-3-2010 proceeded to refuse the leave sought for by the petitioner and ejectment of the petitioner was ordered from the rented premises. The appeal filed against such order met the same fate when the learned Additional District Judge on 4-12-2010 dismissed the appeal. The findings so arrived at by the lower tribunals have been assailed in Constitutional jurisdiction of this Court by way of mentioned Constitutional petitions.

6. The main contention of learned counsel for the petitioner is that in view of the pleas taken in the petition for leave to contest, it discloses sufficient grounds for production of oral evidence and it was a fit case where leave must have been granted and the parties were to be afforded ample opportunity to produce their respective evidence and instead of technicalities, the matter deserved to be decided on merits.

7. The learned counsel for respondent No.3 has supported the impugned orders and argued that the petition for leave to contest was filed beyond the prescribed limitation as provided in section 21 of the Punjab Rented Premises Ordinance, 2007.

8. I have heard the learned counsel for the parties and gone through the record with their able assistance.

9. With regard to the objection of the respondent regarding violation of limitation provided for filing the petition for leave to contest, the learned counsel for the petitioner explains that when the respondent appeared for the first time in ejectment petition on 18-12-2008, he was at his credit a period of 10-days for filing the petition for leave to contest but said 10-days expired during winter vacation when even office of learned Tribunal was closed and non-functional and on the first day of opening of the Tribunal i.e. 2-1-2009, the petition for leave to contest was filed and therefore, it would be deemed to have been filed within prescribed period of limitation. In support of his such contention, he has placed reliance on Khalil-ur-Rehman and another versus Dr. Manzoor Ahmed and others (PLD 2011 Supreme Court 512) and Mst. Mumtaz Begum versus Abdul Wahid (1990 CLC 1305) thus it is held that petition for leave to contest was filed within limitation.

10. The number of grounds were taken in petition for leave to contest by the petitioner and his such petition was supported by documents annexed as D-1 to D-22 and also fact was brought to the notice of the Tribunal that during pendency of the tenancy agreement there was a change in the Administration of Lahore Lyceum (Pvt.) Limited. In ordinary course of proceedings, such grounds should have been considered sufficient to conclude that on such taken grounds there was a requirement of production of oral evidence but instead of granting leave, the learned Tribunal proceeded to refuse the leave and surprisingly based its findings mainly on the provisions of Transfer of Property Act, 1882 and the matters of tenancy have been dealt with as if the same were subject to "lease" and this Chapter-V of the Transfer of Property Act, 1882 have been made applicable to the proceedings initiated under Rent Law. The learned lower courts have completely overlooked and ignored the import of section 4 of the Punjab Rented Premises Ordinance, 2007 (now known as Punjab Rented Premises Act, 2009) which provides that provisions of the Ordinance/Act shall have effect notwithstanding any thing contained in any other law for the time being enforced. Having such overriding effect and being a Law promulgated later in time, the provisions of such Special Law would be prevailed. In presences of such overriding clause, I am surprised as to how the learned Tribunal has relied upon the provisions of Transfer of Property Act, 1882 and the matters of "tenancy" have been intermingled with that of "lease". Neither the tenancy can be termed as "lease" nor the procedure regulating the "lease" can be applied to the premises under tenancy. As such the applicability of the provisions of Transfer of Property Act over the provisions of Rent Law are in complete negation of section 4 of latter one and cannot be allowed to sustain. Even otherwise after having considered the respective pleadings of the parties available on record by means of the ejectment petition and petition for leave to contest by the respondent, it required a detail full-fledged trial after framing of issues and provisions of opportunity to the parties to produce their respective evidence.

11. Resultantly, this petition is allowed and the findings of courts below, having no legal backing, are set aside. The petitioner is granted leave to contest the petition for ejectment filed against him by the respondent and the ejectment petition would be deemed to be pending before the learned Rent Tribunal. The parties present in Court are directed to appear before the learned District Judge, Lahore on 28-6-2012, who will entrust the proceedings of the ejectment petition to a learned Rent Tribunal which must be other than the Special Judge (Rent), who has already dealt with this matter (if he is still posted at Lahore) and the learned Tribunal to which the ejectment petition is entrusted would strictly observe the period for disposal of application as provided under section 27 of Ordinance, 2007.

12. Lahore Lyceum (Pvt.) Limited has filed applications before this Court for the first time under the provisions of Order I, Rule 10, C.P.C. for its impleading as a necessary party to the said proceedings. As the main petitions are allowed and the matter has been remanded back to the learned Tribunal, thus the applications are disposed of with the observation that the applicant in the C.Ms. may prefer such petition before the learned Rent Tribunal, if so advised. KMZ/U-9/L Petition allowed.