2018 PLP 27 (CLCN)

MUDASSIR KHALID ABBASI, J.

Through this petition under Article 199 of the Constitution, petitioners have challenged the legality of order dated 06.06.2012 passed by respondent No.2/Rent Tribunal, Burewala, District Vehari whereby ejectment petition filed by respondent No.3 was accepted and order dated 14.11.2012 whereby appeal against the said order filed by respondent No.4 through petitioners was dismissed.

2. Brief facts of the case are that respondent No.3 filed an ejectment petition contending therein that he is owner of property in dispute bearing House No.57, O-Block, situated in Khewat No.1727/1716, Khatooni No.1770, Chak No.439/EB, Burewala and present petitioners are in possession over the property as tenants. He went abroad and management of disputed premises was entrusted to Muhammad Tariq, real brother of respondent No.3 who rented out the premises to respondent No.4 vide rent deed No.1296 dated 27.11.2004 and respondent No.4 was paying the rent to said Muhammad Tariq and since two years from filing the ejectment petition, respondent No.4 has not paid the rent. Respondent No.3 after his return asked respondent No.4 to vacate the premises as he is in utter need of said premises. Thereafter, ejectment petition was amended by respondent No.3 praying therein that the names of petitioners be incorporated in said petition, as respondent No.4 is out of country and petitioners are occupying the said property. Petitioners filed application for leave to contest under section 21(4) of the Punjab Rented Premises Act, 2009. Petitioners have denied the relationship of tenant and landlord and contended that respondent No.3 is not owner of the property, nor he has given the same on rent to the petitioners nor executed any rent agreement with him. Vide impugned order dated 06.06.2012 passed by respondent No.2, leave to contest filed by petitioners was dismissed and ejectment petition filed by respondent No.3 was accepted. Feeling aggrieved with the said order, petitioners preferred an appeal before respondent No.1 which was dismissed vide impugned order dated 14.11.2012. Hence, this writ petition.

3. Learned counsel for the petitioners argued that both the courts below have miserably failed to apply their judicial mind to the facts and circumstances of the case. Further argued that there is no agreement between respondent No.3 and petitioners, even between respondents Nos.3 and 4 and courts below given much emphasis on rent agreement dated 27.11.2004 which was executed with one Muhammad Tariq. Further argued that leave to defend filed by petitioners was refused on the sole ground that the petitioners have not been able to show that under what title they are in possession of the disputed property. It is settled proposition of law that the petitioners being occupant are not bound to disclose the title and it is the liability of respondent No.3 to prove the tenancy between the parties, which he failed to do so. Further argued that according to section 8 of the Punjab Rented Premises Act, 2009, no effort was made to bring the alleged agreement of tenancy in conformity with the provision of the act. States that respondent No.3 has violated the terms of Section-9 of the Act which clearly reflects that if a tenancy does not conform to the provisions of this Act, the Rent Tribunal shall not entertain an application under this Act unless he deposits fine equivalent to 10% of the annual value of the rent of the premises in the Government treasury. Further argued that application for eviction against the petitioners was not maintainable before respondent No.2 and he passed the impugned order dated 06.06.2012 without any jurisdiction. Further contended section 19 of Rented Premises Act, 2009 was not followed as the affidavits were not attached at the time of filing of application. Further contends that a suit for specific performance has been filed by the petitioner against Rifat Yasmeen on 11.04.2013. Further contends that impugned orders are based on misreading and non-reading of the evidence and both the courts below have not examined the case in its true perspective, therefore, both the impugned orders are liable to be set aside.

4. On the other hand, learned counsel for respondent No.3 vehemently opposed the contentions made by learned counsel for petitioners on multiple grounds of law and facts while contending that the impugned orders are quite in conformity with the evidence brought on record and law applicable, and the petitioners have failed to point out any illegality or legal infirmity in the same. Further argued that the petition for leave to defend is barred by time. No grounds were taken in the said application by the petitioners which are being urged in the present petition. Further argued that respondent No.4 is living abroad and his legal heirs/petitioners are still occupying the premises without any lawful justification. Further contends that originally house in dispute was owned by one Rifat Yasmeen wife of respondent No.3/Khalid and Rifat Yasmeen was residing abroad along with respondent No.3 however, management of said house was entrusted to his real brother Muhammad Tariq who vide tenancy agreement dated 27.11.2004 rented out the premises to respondent No.4 and said Muhammad Tariq started to pay the rent to Riffat Yasmeen after receiving the same from respondent No.4, thereafter, Rifat Yasmeen wife of respondent No.3 died and house was inherited by respondent No.3 and other legal heirs and afterwards house was completely transferred to respondent No.4. The respondent is in need of property for his personal use and occupation; the petitioner damaged the property and has impaired the value of property. Further contends that orders passed by the both the courts are in accordance with law and not liable to be set aside, consequently, the writ petition is liable to be dismissed.

5. Arguments heard. Record perused.

6. Critically important aspect before this Court is that in this case petitioners have denied the relationship with respondent No.3 on the ground that he is not the owner of the rented premises and on the other hand failed to prove that under what capacity they are occupying the premises.

7. Throughout, case of respondent No.3 is that he was away to Saudi Arabia in connection to his job and his real brother Muhammad Tariq use to look after the affairs and he has rented out the premises to Muhammad Iqbal/respondent No.4 initially for the period of two years from 27.11.2004 to 27.11.2006. The said respondent left the country whereas petitioners Nos.1 to 7 being wife and children of the said respondent are occupying the premises without payment of rent for the last five years from the date of filing of the ejectment petition. Whereas, the application for leave to contest filed by the petitioners does not disclose the stance which they have taken before the courts below and in the present petition as well. In such eventuality the arguments of the learned counsel for the respondents No.3 carries a lot of weight that in terms of section 23 of the Punjab Rented Premises Act, 2009, application for leave to contest shall be treated as a written reply, if allowed.

8. Interestingly, learned counsel for the petitioners has shown his disassociation with respondent No.4 and has candidly stated that a suit for specific performance against one Rifat Yasmeen has been filed on 11.04.2013, in other words he claims to be the owner of the disputed premises. He has taken a stance that the ownership of the rented premises is to be determined by the civil court and the rent controller could not decline the leave to contest on the ground that petitioners have failed to substantiate their lawful status. I am afraid how the petitioners have taken such plea at this belated stage as the impugned orders were passed on 06.06.2012 and 14.11.2012 whereas the suit was filed on 11.04.2013. This seems to be an attempt to cover up the illegal occupation on the rented premises and if such plea is accepted then it would be a very clever device on part of the tenant to file a suit of such nature and prolong his illegal occupation over the premises.

9. Learned counsel for the petitioner has vehemently argued that in terms of Section-9 of the Act ibid, if a tenancy does not conform to the provision of this Act, the Rent Tribunal shall not entertain an application under this Act, on behalf of landlord unless he deposits fine equivalent to 10% of the annual value of the rent of the premises in the Government treasury. This has been spontaneously responded by the landlord who has produced the copy of challan whereby he has already deposited the amount of fine, with permission of Rent Tribunal.

10. To my understanding, Rent Tribunal may enter into the controversy of ascertaining the title of the parties with reference to the relationship of landlord and the tenant, after recording the evidence of the parties. However, in certain cases it is beyond the competence of the Rent Tribunal to give some conclusive findings regarding the title and ownership of the rented premises, particularly when some litigation in this regard is already pending before filing of the ejectment petition. So far as the case in hand is concerned, it is distinguished on two counts firstly, it is an admitted fact that the suit for specific performance was filed by the petitioner in the year 2013 after the lapse of one year after the decree passed by the learned Rent Tribunal, therefore, pendency of such suit is entirely irrelevant is this case. Secondly, petitioners have miserably failed to justify and substantiate that in what capacity they are in possession of the rented premises. Moreover, as referred above application for leave to contest does not disclose any defence, whatsoever. In such eventuality keeping in view the very purpose and object of the Punjab Rented Premises Act, 2009 that the same has been promulgated to discourage and ward off unscrupulous and irrational defences on the part of tenants as observed in PLD 2016 Lahore 123 titled "Dr. Shahida Hasnain v. Mian Umar Ikram ul Haq and another".

11. Another very important aspect of this case is that an agreement do exist between Muhammad Tariq, real brother of respondent No.3 and respondent No.4/Muhammad Iqbal, husband of petitioner No.1 and father of remaining petitioners, as respondent No.3/Muhammad Khalid was abroad. Subsequently, respondent No.4 had also left the country whereas premises remained under the occupation of petitioners.

12. So far as the non-compliance of section 19(4) regarding the non-submission of affidavits is concerned, Hon'ble Supreme Court in "Khalil ur Rehman and another v. Dr. Manzoor Ahmad and others" (PLD 2011 SC 512) has explicitly observed that the provision is directory and procedural in nature.

13. What has been discussed above, this petition does not succeed and is dismissed with no order as to cost. MQ/R-13/L Petition dismissed.