2014 PLP 832 (CLC)

ARSHAD MAHMOOD TABASSUM, J.

This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, calls in question judgment and decree dated 5-4-2013, passed by the learned Additional District Judge, Rawalpindi, whereby he dismissed rent appeal, filed by the petitioner against the order dated 15-12-2012, passed by the learned Special Judge (Rent), Murree, District Rawalpindi, through which, he accepted the ejectment petition, filed by the respondent herein.

2. Briefly, the facts giving rise to the instant petition are that the respondents herein filed an ejectment petition against the petitioner on 27-4-2012 in respect of Shop No.84, situated in Cantt. Bazar, Jinnah Road, Murree on the grounds of expiry of lease agreement, default in payment of rent and personal need. The petitioner submitted application for leave to contest the ejectment petition, raising various objections including that the demises shop was situated within the area of Cantonment Board, Murree, hence, the learned Special Judge (Rent), Murree had no jurisdiction in the matter. The petitioner also controverted other grounds urged by the respondents for ejectment of the petitioner. However, relationship of landlord and tenant was admitted between the parties. The learned Special Judge (Rent) put the parties to trial after framing of issues and ultimately accepted the ejectment petition directing the petitioner to vacate the shop within 20 days vide order dated 15-12-2012. The petitioner preferred an appeal against the said judgment, which was dismissed by a learned Additional District Judge, Rawalpindi vide his judgment dated 5-4-2013. Hence, this petition.

3. Learned counsel for the petitioner has argued that the impugned judgment, passed by both the learned courts below are without jurisdiction for the reasons that admittedly, demised shop is situated within the limits of Cantonment Board, Murree, hence, the petition for ejectment could only be filed in the court of learned Rent Controller Cantonment Board, appointed by the Central Government under subsection (1) of section 6 of the Cantonments Rent Restriction Act, 1963. Hence, on this score alone, both the judgments are liable to strike down.

4. Conversely, learned counsel for the respondents has argued that the learned Special Judge (Rent) had the jurisdiction to decide the matter, which he had decided, as such no jurisdictional defect is there in the impugned judgment, hence, the instant petition merits dismissal.

5. Having heard both the learned counsel for the parties and perused the record, it transpires that in para No.1 of the ejection petition itself; it has clearly been mentioned that Shop No.84 (demised shop) situates in Cantt. Palaza, Jinnah Road, Murree and that the respondents/landlord have lease right for the said shop, which they have rented out to the petitioner/tenant, thus, the respondents claim themselves to be landlords and the petitioner to be a tenant under them in the demised shop. The fact, that the demised shop is located within the limits of Cantonment Board, Murree, therefore, is an admitted fact between the parties. Even Khawar Hussain, respondent No.1 while appearing as A. W.1 has also stated during cross-examination:

Thus, no room is left to doubt that the shop in question is situated within the area of Cantonment Board and this fact has not been disputed by the respondents/landlord. This being so, the Punjab Rented Premises Act, 2009 had no application to the facts of the case, nor the learned Special Judge (Rent) appointed under the said Act had any jurisdiction to adjudicate upon the matter. It has been held by the august Supreme Court of Pakistan in the case of Syeda Fatima (PLD 1988 SC 258) that area administered by a Cantonment Board was not a part of urban area within the meaning of Punjab Urban Rent Restriction Ordinance, 1959. The relevant portion of the said judgment is reproduced as below for the sake of convenience:

"The expression "urban area" as defined by section 2(i) of the Ordinance means any area administered by a municipal corporation, a municipality, a municipal committee, a town committee or a notified area committee. On the plain reading of this definition, therefore, the area administered by a Cantonment Board will not be a part of the "urban area" within the meaning of the Ordinance."

6. It is also pointed out that Cantonment Rent Restriction Act, 1963 has been promulgated for the control of rent of certain classes of buildings within the limits of cantonment area and for the eviction of tenant there from and section 17 thereof provides for eviction of a tenant from such premises by applying to the Controller for an order in that behalf The "Controller" as defined by section 2(d) of the said Act means a Controller of rent, appointed by the Central Government under subsection (1) of section 6 and includes the Additional Controller. This being so, the ejectment petition could be filed in the court of leaned Rent Controller, appointed under the provisions of Cantonment Rent Restriction Act, 1963 and not in the court of Special Judge (Rent), appointed under the Punjab Rented Premises Act, 2009. It appears that the learned Special Judge (Rent) has illegally assumed jurisdiction in the matter, though, he had no power to adjudicate upon the ejectment petition. It is also noteworthy that while deciding Issue No.1 regarding jurisdiction, he has erroneously held as under:

"Perusal of section 3 it appears that Cantonment Rent Restriction Act is not applicable to the property owned by the Cantonment Board. Section 17 subsection (11) applies where Federal Government or provincial government, Railway, port trust, Cantonment Board and local authority file petition for the eviction. So section 17, subsection (11) is not applicable in this case. Section 3 also negates the version of the respondent. Petition is filed by the private person against a private person, so this court has the jurisdiction to entertain this ejectment petition being the Rent Tribunal. So these issues are not proved in favour of the respondent."

7. The above findings of the learned Special Judge (Rent) is absolutely misconceived and based upon wrong assumption of law. The fact of the matter is that section 3 of the Cantonments Rent Restriction Act and section 17(11) has no relevancy to the preposition in hand. The matter in hand was between two individuals. The respondents are claiming themselves to be the landlords in respect of the demised shop and seek eviction of the petitioner therefrom, for which they could file a petition in the court of the learned Rent Controller Cantonment Board under section 17 of the said Act. Reliance in this regard may also be placed on the case of Habib Masih and another (2003 YLR 1245), the relevant portion whereof reads as under:

"It may also be observed that the very title of the ejectment petition filed by respondent No.1, is indicative of the fact that the property was situated within the cantonment limits of Lahore to which Cantonment Rent Restriction Act, 1963, is applicable and the learned Additional Controller, Cantonment Board, Lahore, could only exercise jurisdiction under the law. The point of jurisdiction thus is not even dependent upon any question of fact and can be allowed to be raised and entertained for the first time by this Court in writ jurisdiction. Insofar as the effect of the adjudication made in this case by the Rent Controller and the learned Additional District Judge, Lahore, is concerned, the same had no legal efficacy inasmuch as in view of The Chief Settlement Commissioner, Lahore v. Raja Mohammad Fazil Khan and others (PLD 1975 SC 331), such orders are to be treated as void "when it is made by a Court, Tribunal, or other authority, which had no jurisdiction either as regards the subject-matter, the pecuniary value or the territorial limits where the dispute arose. Such an order would amount to a usurpation of power unwarranted by law, and accordingly it would be a nullity". The adjudication of the ejectment petition filed by respondent No.1, by the Rent Controller or learned Additional District Judge, Lahore as Appellate Court, thus does not stand on better footing than without jurisdiction which has no legal effect whatsoever. There assumption of jurisdiction m the matter was unwarranted by law and to be declared so in view of Sind Employees' Social Security Institution v. Dr. Mumtaz Ali Taj and another (PLD 1975 SC 450)."

8. It is strange to note that not only the learned Special Judge (Rent) misconstrued the above provisions of law, but also learned Additional District Judge also failed to comprehend this very simple proposition of law and took it as if petitioner/tenant was denying the status of respondents being landlords of the demised shop.

9. In the light of above discussion, the impugned judgments, passed by both the learned courts below are absolutely without jurisdiction and have been passed without any lawful authority. The same are hereby set aside by accepting this petition.

10. During the course of arguments, learned counsel for the petitioner has pointed out that the demised shop has been got vacated by the respondents in execution of ejectment order, passed by the learned Special Judge (Rent). If this is so, the petitioner may seek restitution of possession under section 144 of the Code of Civil Procedure, 1908, by applying to the court concerned under whose order, the possession was taken away from him. AG/N-5/L Petition accepted.