P L D 2012 Lahore 178 (PLP)

SYED MUHAMMAD KAZIM RAZA SHAMSI, J.

This constitutional petition is directed against an order dated 17-1-2011 passed by Mr. Suleman Baig, the learned Additional District Judge Faisalabad, whereby he accepted the appeal filed by the respondent and set-aside the order of ejectment dated 21-7-2010 passed by Mr. Shafaqat Ali Special Judge (Rent), Faisalabad, consequently dismissed the ejectment petition.

2. The ejectment petition filed by the present petitioner was allowed, as stated above, and in appeal, the same was dismissed on the sole ground by the learned Additional District Judge Faisalabad that notice as required under section 30 of Punjab Rented Premises Act, 2009 regarding change of ownership was not served upon the tenant, as such, the petition is not maintainable.

3. The learned counsel for the petitioner submitted that the provisions of section 30 of the Act ibid are directory in nature as it does not follow by penal consequences in case the requirement of the section is not fulfilled, as such, the order passed by the learned First Appellate Court is not sustainable. He while taking this court through various documents submitted that the respondent himself admitted at various places that he knew that Shahid Hussain had sold the property in dispute to the present petitioner, in these circumstances, it was not essential for the petitioner to send the notice to the respondent. It is also the contention of the learned counsel that as held by the apex Court in various judgments the filing of ejectment petition could be treated as a notice of change of ownership.

4. The learned counsel for the respondent argued that it is a principle of law that when an act is prescribed to be done in a manner provided by law then it has to be performed in such a manner, thus, it was the incumbent upon the petitioner to send a notice to the respondent as well as to the Rent Registrar of the area for entering his name in his relevant register. He further submitted that the writ petition is not maintainable as the petitioner has failed to point out any illegality committed by the learned First Appellate Court in dismissing the ejectment petition

5. The parties have been heard at length. The point for determination in the instant petition is whether the provisions of section 30 of the Act ibid are mandatory in nature or merely are directory and whether a party becomes defaulter in the payment of rent if no notice of change of ownership is sent to the Rent Registrar for entering the name of new landlord in his record. In order to examine these questions, the provisions of section 30 have been reproduced as under: "

30. Transfer of ownership.

(1) If the ownership of a rented premises has been transferred, the new owner shall send a written intimation of the transfer by registered post or a courier service to the tenant and shall apply to the Rent Registrar for entering his name in the register as the landlord of the premises. (2) the Rent Registrar shall inform the tenant through a notice at the expense of the landlord about the transfer of ownership of the premises and the tenant shall not be deemed to have defaulted in the payment of the rent if the rent due is paid or tendered to the new landlord within a period of thirty days from the date when the notice should in normal course have reached the tenant."

6. The examination of this provision of law reveals that it is consisted upon the two parts. In the first place, it requires that a written intimation shall be sent to the tenant informing him about the new ownership and secondly he shall also apply to the Rent Registrar for entering his name in the register as the landlord of the premises. Under sub section (2) of the Section, Rent Registrar, after receiving the application of the new landlord, shall inform the tenant through a notice about the transfer .of the ownership of the premises and the tenant shall not be, deemed to have defaulted in the payment of the rent if the rent due is paid or tendered to the new landlord within a period of 30 days from the date when the notice should in normal course have reached the tenant. It is nowhere provided in either part of section if no notice either to tenant or to Rent Registrar is sent whether ejectment petition would be liable to be dismissed. Although in section the word "shall" has been used, but it appears that the intention of the legislature while enacting this provision of law could be that the cases of the parties should not be thrown out of the court on the basis that notice of change of ownership has not been sent. This intention of the legislature is also evident from the preamble of the Act ibid which reads as under:-- "Whereas it is expedient to regulate the relationship of landlord and tenant, to provide a mechanism for settlement of their disputes in an expeditious and cost effective manner and for connected matters." (emphasis provided). Thus it follows that purpose of enactment is to provide expeditious remedy in rent matters but it does not allow expeditious disposal at cost of technicalities.

7. In view of this legal position of the law as well as rules of interpretation the word "shall" used in section shall be read as "May". C This interpretation of the Section finds further support from the other facts that the 'question of default in the payment of rent is to be determined by the court after recording the evidence of the parties or in , cases where the default is evident from the record or in case where relationship of landlord and tenant is denied by the parties. This determination has to be undertaken even if no notice as required is sent. The purposes of the enactment of this section is to regulate and register the new landlord so that the dispute of denial of tenancy could be avoided which was a consistent practice when the repealed law was in the field. In those cases the ejectment petition remained pending in the court for years for determination of title of the landlord. Keeping in view C this expediency and mechanism provided for expeditious disposal of the rent matter, it is held that ejectment petitioner may not be non suited on the ground that he did not send intimation regarding new ownership either to the tenant or to the Rent Registrar, particularly, when tenant had notice of the same when ejectment petition is instituted against him. 8.? Now coming to the facts of the instant case, it is noticed that the petitioner had served a notice upon the respondent on 21-5-2009 informing him that he had purchased the disputed property from his brother Shahid Hussain and raised demand of the payment of rent. The petitioner to this extent had complied with one requirement of Section 30 of the Act ibid about sending intimation but he did not apply for his registration as new landlord. In view of the interpretation of section-30 supra, the petitioner cannot be penalized for this disobedience as this non-compliance did not materially affect the rights of the respondent who has already denied the relationship of landlord and the tenant between him and the petitioner. Moreso, the respondent has admitted as R.W.1 D that prior to the institution of the ejectment petition he had the knowledge that his previous landlord Shahid Hussain, the brother of present petitioner, had sold the property to Zafar Hussain ejectment petitioner. In view of this admission of the respondent the petitioner could not be non-suited merely on the ground that he did not apply to the Rent Registrar for entering his name in the relevant register as new landlord. In this scenario the learned First Appellate Court while dismissing the ejectment petition on this score has proceeded against the spirit of law, as such, the judgment is not sustainable. 9.? For the foregoing reasons, this writ petition is allowed by setting aside the impugned order. The learned First Appellate Court shall re-decide the appeal, which shall be deemed to be pending before it, after E providing fair opportunity to the parties of hearing. The parties shall appear before the learned First Appellate Court on 21-10-2011. K.M.Z./N-76/L??????????? ?????????????????????????????? ???????????????Case remanded.