Pakistan Case LawMuhammad Irshad Versus Khawar Sabtain
Mirza Viqas Rauf, J .--- This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred to as Constitution ) arises out of an ejectment application filed by respondent No.1 (hereinafter referred to as respondent ) seeking eviction of the petitioner from shop No.21 situated in new Sabzi Mandi Talagang Road within the limits of Municipal Committee City Chakwal (hereinafter referred to as shop in question ). The eviction was sought on the grounds of default in payment of rent and subletting. While resisting the ejectment proceedings the petitioner filed an application seeking leave to contest. Leave to contest was granted to the petitioner vide order dated 16th June, 2022 by learned Special Judge (Rent), Chakwal and from the divergent pleadings of the parties multiple issues were framed. After framing of issues evidence of both the sides was recorded and finally ejectment application was dismissed vide order dated 5th June, 2023. Feeling dissatisfied, the respondent preferred an appeal before learned Additional District Judge, Chakwal, which was allowed through judgment dated 15th November, 2023, which is now impugned in the instant petition.
2.Learned counsel for the petitioner submitted that there exists no relationship of landlord and tenant interse the petitioner and respondent . He added that though overwhelming material was available to this effect but same was discarded without assigning any lawful reasoning. Learned counsel contended that even otherwise the respondent has badly failed to lead any cogent evidence to establish that the petitioner is occupying the shop in question as his tenant. Learned counsel further contended that in case of denial of relationship learned Special Judge (Rent) was right in his approach to dismiss the ejectment application. It is argued with vehemence that learned Additional District Judge without applying his independent judicious mind to the facts of the case allowed the appeal through the impugned judgment, which is not tenable at all.
3.Conversely, learned counsel for the respondent while defending the impugned judgment passed by learned Additional District Judge vehemently opposed this petition.
4.Heard. Record perused.
5.In order to get the shop in question vacated the respondent moved an ejectment application under Section 19 of the Punjab Rented Premises Act, 2009 (hereinafter referred to as Act, 2009 ) on the grounds mentioned hereinabove. While resisting the ejectment application an application for leave to contest was filed by the petitioner in terms of Section 22 of the Act, 2009 wherein he denied the relationship of landlord and tenant. The moot point thus involved in this petition is as to whether there exists any relationship of landlord and tenant between the parties?
6.Before adverting to the core issue, it would be apposite to mention here that a respondent is precluded to resist the ejectment proceedings unless he obtains leave from the Special Judge (Rent). In the light thereof the petitioner moved an application under Section 22 of the Act, 2009 seeking leave to contest. It evinces from the record that the petitioner in his application for leave to contest denied the existence of relationship of landlord and tenant in the following manner :-
On the basis of above stance of the petitioner leave was granted to him vide order dated 16th June, 2022.
7.In order to prove his case, the respondent produced his special attorney as AW1 whereas Tariq Mehmood and Sohail Abid were also examined as AW2 and AW3, respectively. The respondent also produced multiple documents in addition to the oral account. From the analysis of the evidence it is evident that the respondent has successfully discharged the initial onus. On the contrary, the petitioner himself put his appearance in the witness box as RW1 and submitted his affidavit as Exhibit-R1 whereas he examined Faizan Ashraf and Muhammad Latif as RW2 and RW3. Both the said witnesses produced their affidavits as Exhibit-R2 and Exhibit-R3, respectively. The petitioner also tendered certain documents in the shape of Exhibit-R4 to Exhibit-R11 and Mark-R1, respectively.
8.It is admitted position on the record that original owner of the shop in question was Khizar Hayat from whom the respondent purchased it through registered sale deed (Exhibit-A10). It is the stance of the petitioner that he along with Zahoor Ahmad purchased the shop in question through agreement to sell but while appearing in the witness box he deposed as under :-
From the extract of the statement of petitioner, it is clearly evident that though in his application for leave to contest, he took the stance that the shop in question is in the occupation of Zahoor Ahmad being tenant but in his statement, he clearly conceded that in fact he is occupying the shop and initially it was obtained on rent from the original owner. In view of this stance of the petitioner, it is established that he entered into the shop in question being tenant under the original owner namely Khizar Hayat. In this backdrop when the respondent purchased the shop in question from the original owner, he stepped into his shoes and thus, for all intents and purposes, became the landlord. Needless to observe that once a tenant is always a tenant.
9.So far contention of learned counsel for the petitioner that no notice under Section 30 of the Act, 2009 was given to the petitioner regarding transfer of ownership; suffice to observe that mere fact that no separate notice was served upon the petitioner qua the change of ownership would not be sufficient to equip him with a valid defence to resist the ejectment application. Filing of an ejectment application itself is a notice to the tenant. Guidance in this regard can be sought from Pir Muhammad Manjh v. Naveed Iqbal Malik and 2 others (2017 MLD 418) wherein it is held that :-
7. Adverting to the point No.(i), it is observed that the respondents Nos.1 and 2 in their ejectment petition specifically asserted that they had sent a notice to the petitioner regarding change of ownership which remained unattended, however, in his application for leave to contest, which was granted and the same was treated as written reply in terms of Section 23 of The Act, 2009 , the petitioner denied any such notice. To this effect issue No.2 was framed by the learned Special Judge (Rent) and onus of proof was placed upon the respondents. Admittedly the tenancy between the parties was not registered in conformity with the provisions of The Act, 2009 and the respondents Nos.1 and 2 have deposited fine in the Government treasury in terms of Section 9 of The Act, 2009 , so that their ejectment application should become entertainable. As per stance of respondents Nos.1 and 2, the suit premises was purchased by them through registered sale deed bearing No.378 dated 01st of October, 2012 (Exhibit-A7) from Muhammad Moazzam and the petitioner was occupying the premises as tenant under the previous owner. As the tenancy had expired so they informed the petitioner to vacate the suit premises as they do not want to continue the tenancy. They also sent a legal notice (Exhibit-A2) confirming their intention but the same was not responded, rather the petitioner instituted a civil suit against the previous owner without impleading respondents Nos.1 and 2 as party. The respondents Nos.1 and 2, however, moved an application under Order I Rule 10 of The Code of Civil Procedure (V of 1908) which was allowed and consequently they were made party in the said suit. It is evident from the record that notice (Exhibit-A2) was duly served upon the petitioner through registered acknowledgment due dated 08th of March, 2013 which was tendered in evidence as Exhibit-A3. This aspect was even affirmed by the petitioner himself by way of a suggestion to respondent No.1, when he appeared as AW1 in the following manner :-
This leaves no doubt that due compliance was made to Section 30 of The Act, 2009 . Even otherwise non-compliance of Section 30 does not entail any penal consequences, having adverse effect upon the competency of ejectment petition. This Court in the case of Nadeem Zafar and others v. Muhammad Ismaeel and others (PLD 2012 Lah.178), while dilating upon the implication of Section 30 of The Act, 2009 observed as under:-
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". 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 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.
Reference to the above effect can also be made to Hafiz Muhammad Shahid Nawaz v. Hafiz Muhammad Saeed (2010 CLC 1941). The relevant extract from the same is reproduced below :-
7 The appellant's contention that respondent has never served any notice with regard to the change of ownership, is not maintainable, as filing of the ejectment petition is a sufficient notice of change of ownership in favour of the respondent, whereafter the appellant is not entitled to raise such an objection. This view has been supported by Syed Azhar Imam Rizvi v. Mst. Salma Khatoon (1985 SCMR 24), the relevant extract of which is as under:
" ..It is also not correct that after admission by the petitioner that he had received a copy of the ejectment application in 1978 wherein the factum of sale in favour of the respondent had clearly been mentioned, he was entitled to any other formal notice under section 13-A. The receipt of the copy of the ejectment application and knowledge gained thereby would constitute due notice and it will have to be treated as substantial compliance of section 13-A of the Ordinance...."
The same view was further reiterated by this Court in the case of Lt. Gen. (Retd.) Muhammad Afzal Najeeb v. Mst. Aysha Khanna through General Attorney (PLD 2010 Lahore 56).
10.The petitioner is seeking writ of certiorari in terms of Article 199(1)(a)(ii) of the Constitution , which has a very limited scope. The petitioner, in order to persuade the Court to exercise the extraordinary jurisdiction, have to demonstrate that the order or judgment under assailance is either without lawful authority or suffers with material illegalities. The petitioner has failed to point out any perversity or material irregularity in the impugned judgment, warranting exercise of constitutional jurisdiction by this Court.
11.The nutshell of above discussion is that this petition is devoid of any merits, as such it fails and is accordingly dismissed with no order as to costs.
JK/M-14/L Petition dismissed.
Judges on this bench
- Mirza Viqas Rauf473 judgments