Muhammad Khalid Mehmood Khan, J:
Through
this constitutional petition, petitioner has assailed the legality of
order dated 3.2.2010 passed by the respondent No.1/Special
Judge (Rent), Multan.
2.
Briefly stated the facts of case are, the respondent No.2
filed an ejectment petition against the petitioner on 4.7.2009
under Punjab Rented Premises Ordinance, 2007, substituted
with Punjab Rented Premises Act, 2009 (hereinafter referred to
as “Act of 2009”) for the eviction of a shop situated at Jinnah
Chowk, Green Line, Zakariya Town, Bosan Road, Multan. The
petitioner filed application for leave to defend which was
allowed on 03.11.2009, issues were framed.
When the
respondent No.2 appeared as his own witness, it transpired that
his affidavit in examination-in-chief was not attached with the
ejectment petition. The petitioner objected the oral statement of
respondent No.2 in examination-in-chief and ultimately he filed
an application claiming that respondent No.2 has failed to bring
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tenancy in conformity with the provision of the Punjab Rented
Premises Ordinance, 2007 and has failed to deposit 10%
penalty of annual value of rent of the premises in the
Government treasury and has also failed to attach his own
affidavit with the ejectment petition and, as such, ejectment
petition be dismissed.
Respondent No.2 also filed an application for seeking
permission to place on record his affidavit in support of his
ejectment petition.
3.
Both the parties filed their respective replies and the
learned Rent Tribunal vide order dated 30.12.2010 dismissed
the petitioner’s application and allowed the respondent No.2’s
application. Hence the present writ petition.
4.
Learned counsel for the petitioner submits that impugned
order is arbitrary, unjust and unfair in the eye of law. The
learned Rent Tribunal has failed to appreciate the law on the
point. The attachment of the affidavit of landlord as well as at
least two witnesses is necessary and obligatory; its noncompliance results rejection of ejectment petition. He further
submits that payment of 10% penalty for non-registration of
tenancy agreement is mandatory one and, as such, the petition
was also liable to be rejected on this score. He has relied on
Muhammad Usman and another v. Additional District Judge,
Lahore and 2 others(PLD 2010 Lahore 281) and Messrs
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Ch.Muhammad Shahzad Aslam Naz v. Special Judge (Rent) & another
Wateen Telecom (Pvt.) Ltd. Through Attorney v. Malik Abdul
ahad and 2 others(PLD 2009 Lahore 429).
5.
Learned counsel for the respondent No.2 submits that
submission of landlord’s affidavit is not mandatory provision
but it is a directory in nature and as such, learned Rent Tribunal
was justified to permit respondent NO.2 to place on record his
own affidavit. He further submits that non-payment of penalty
in case of non-registration of tenancy agreement is again not
mandatory but the learned Rent Tribunal can direct the
petitioner to deposit the said amount and impose condition that
final order will be subject to deposit of penalty as stated above.
He has relied on Muhammad Fiaz and another v. Ch.Yaqoob
Hussain and another(PLD 2010 Lahore 197) and Younas
Siddique v. Mst. Tahira Jabeen(PLD 2009 Lahore 469).
6.
Heard and record perused.
7.
Perusal of ejectment petition shows that it was filed on
4.7.2009. The Punjab Rented Premises Ordinance, 2007
(Punjab Ordinance No.XXI of 2007) was reenacted as the
Punjab Rented Premises Act, 2009 and all proceedings and
actions taken under the Ordinance, 2007 have been saved under
Section 36 of the Act, 2009.
8.
Section 1 of the Act, 209 shows that Act of 2009 is
extended whole of the Punjab and has come into force at once.
Punjab Rented Premises Bill 2009 was passed by the Provincial
Assembly of the Punjab on 4th of November 2009 and assented
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Ch.Muhammad Shahzad Aslam Naz v. Special Judge (Rent) & another
by the Governor of the Punjab on 14th of November, 2009. It
was published in Gazette of Punjab extra ordinary on 17 th of
November 2009. It is an admitted fact that petition was filed on
4.7.2009 and, as such, the same is saved under Section 36 of the
Act, 2009. Section 5 of Act 2009 provides that landlord shall
not let out the premises on rent except through tenancy
agreement and the said agreement is compulsory registerable
with the Rent Registrar. The Rent Registrar is defined under
Section 17 of the Act, 2009 which is read as under:
“17. Rent Registrar.—(1) The Government shall appoint a
Rent Registrar in a district or an area as it may deem
necessary.
(2)
The Rent Registrar shall maintain a register to enter
particulars of a tenancy agreement, agreement to sell or any
other agreement in respect of rented premises.”
9.
Section 5 read with Section 17 of the Act, 2009 shows
that the landlord is under legal obligation to let out premises to
a rent by way of written tenancy agreement which will be
registerable by the Rent Registrar.
10.
Under Section 8 of the Act, 2009, the existing tenancy
before promulgation of the Act, 2009 is saved in the manner
which is reproduced as under:
“8.
Existing Tenancy.—An existing landlord and tenant
shall, as soon as possible but not later than two years from
the date of coming into force of this Act, bring the tenancy in
conformity with the provisions of this Act.”
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11.
In Section 8 of the Act, 2009, word “shall” has been used
which denotes that all existing landlord tenant both as soon as
possible bring the tenancy in conformity with the provisions of
Section 5 of the Act, 2009 and at a outer limit for doing the
needful has been provided two years.
12.
The effect of non-compliance of Section 8 is provided in
Section 9 which is reproduced as under:
“9.
Effect of non-compliance.—If a tenancy does not
conform to the provisions of this Act, the Rent Tribunal shall
not entertain an application under this Act:(a)
on behalf of the tenant, unless he deposits a fine
equivalent to five percent of the annual value of
the rent of the premises in the Government
treasury; and
(b)
on behalf of the landlord, unless the deposits a
fine equivalent to ten percent of the annual
value of the rent of the premises in the
Government treasury.”
13.
In Section 9 of Act 2009, the word “entertain” is
mentioned. This provision of Act provides that if the tenancy
between the parties is not within the parameters provided in
Section 5 of the Act, 2009, the Rent Tribunal shall not entertain
the application under this Act.
14.
The argument of learned counsel for the petitioner is that
as respondent No.2/landlord has failed to bring the tenancy
agreement inconformity with Section 5 of the Act, 2009 and, as
such, the very entertainment of the ejectment was void.
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15.
The argument of learned counsel has to be evaluated with
reference to Section 1 and Section 8 of the Act, 2009. It is an
admitted fact that Act of 2009 came into existence on 17.7.2009
and admittedly the ejectment petition was filed under the
erstwhile Ordinance, 2007, the proceedings under said
ordinance are protected under Section 36 of the Act, 2009.
Section 8 provides time to parties of two years for bringing the
tenancy inconformity with Section 5 of the Act, 2009 from the
date of coming into force of the Act, 2009 and, as such, the
time was available to respondent No.2 for getting the tenancy
agreement registered in terms of Section 5 of the Act, 2009.
16.
The
question
arose
what
is
meaning
of
word
“entertain”.—Before evaluating or discussing the implication of
word “entertain”, the wording of Section 19 of the Act, 2009
has to be examined. Section 19 is read as under:
“19. Filing of application.—(1) An application in respect
of a rented premises shall be filed in the Rent Tribunal of the
area or the district.
(2)
If an application is filed under sub-section (1), the
Administrative Special Judge (Rent) of the area or the district
may take cognizance of the case or entrust the same to any
other Special Judge (Rent).
(3)
An application under sub-section (1) shall contain a
concise statement of facts, the relief claimed and shall be
accompanied by copies of all relevant documents in
possession of the applicant.
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(4)
If the application is for eviction of a tenant, the
landlord shall submit his affidavit and affidavits of not more
than two witnesses alongwith the eviction application.”
17.
In the above provision of law, the word used is
“cognizance of the case”. The word “entertain” has not been
defined in the definition clause of the Act, 2009 nor the word
“cognizance” is included therein. Hence, both the words have
to be seen in its ordinary meanings and usage.
The plain
meaning of the said word “entertain” as per English dictionary
is to consider or to allow, to think about. The word
“entertainment” came into discussion before the Hon’ble
Supreme Court of Pakistan in Divisional Superintendent
P.W.R., Multan v. Abdul Khaliq(1984 SCMR 1311) with
reference to Payment of Wages Act (IV of 1936). Section 15 (2)
of the Payment of Wages Act provides as under:
“15(2). Where contrary to the provisions of this Act any
deduction has been made from the wages of an employed
person, or any payment of wages or of any dues relating to
provident fund or gratuity payable under any law has been
delayed, such person himself, or any legal practitioner, or
any official of a registered trade union authorized in writing
to act on his behalf, or any inspector under this Act, or of any
heirs of an employed person who has died or any other
person acting with the permission of the authority appointed
under subsection (1) may apply to such authority for direction
under subsection (3):
Provides that every such application shall be presented
within (three years) from the date on which the deduction
from the wages was made or from the date on which the
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payment of the wages was due to be made, as the case may
be:
Provided further that any application may be admitted after
the said period of (three years) when the applicant satisfies
the authority that he had sufficient cause for not making the
application within such period.”
18.
Section 15 (3) of Payment of Wages Act provides that
every application under Section 15(2) shall be presented within
three years from the date on which the deduction from the
wages was made or from the date on which payment of wages
was due to be made as the case may be.
19.
In that case, a question arose whether after the expiry of
statutory period of three years application under Section 15 of
the Payment of Wages Act can be entertained. In this case facts
are a Pakistan Railways employee was dismissed from service
on 28.11.1951. His appeal was ultimately allowed by the
Hon’ble Supreme Court of Pakistan and on 26.2.1962 after that
he filed an application under Section 15 (2) of the Payment of
Wages Act claiming that he was not paid his wages from the
period commencing from 29th of November 1951 to 26th of
February 1962 and that he is entitled for payment of
Rs.18,236/- as delayed wages and Rs.9,118/- as compensation.
The application was resisted by the Railways on the ground that
it was time barred and on merits it was objected that
withholding of wages was justified according to the existing
rules and regulations. The authority came to the conclusion that
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Ch.Muhammad Shahzad Aslam Naz v. Special Judge (Rent) & another
employee was entitled for the payment of wages as well as the
delayed compensation but held that the application is barred by
time. The appellate court condoned the delay and allowed the
petition. The Pakistan Railways assailed the said judgment
through civil revision and the High Court held that as the
application was already entertained, the written statement was
filed, issues were struck and finding has been given on merits
of the claim, therefore, the claim fell under subsection 3 of
section 15 of Payment of Wages Act, and hence the order
passed by the Authority was appealable under section 17 of the
Act. The High Court also held that there was sufficient cause
for the condonation of delay because of the time spent in
litigation and thereafter in making representations. The matter
went to Hon’ble Supreme Court of Pakistan and the Hon’ble
Supreme Court held as under:
“As to what the opening sentence of subsection (3) connotes,
there can hardly be a doubt as to its meaning. The word
“entertain” in legal parlance means „adjudicate upon‟ or
„proceed to consider on merits‟. This can only be achieved if
the application is not hit by limitation for that close the door
for entry, into the filed of any adjudication or decision on
merits. Therefore, the prerequisite for entertaining an
application under subsection (2) which is hit by limitation, is
to first deal with the question of delay and its condonation if
sufficient cause is shown. It is then that the authority has the
jurisdiction under subsection (3) to proceed to deal with it on
merits.
Merely hearing the other side in the wake of the
incompetency due to limitation and hence given to the party
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an opportunity to show sufficient cause for condoning the
delay would not mean that the application was “entertained”
under subsection (3) in the context of the adjudication of
controversy on merits as the authority was by reason of the
proviso enjoyed to resolve the question of limitation first. The
High Court, accordingly, fell into an error when it gave the
finding that it was not a case under subsection (2) but under
subsection (3) of subsection 15 of the Act. Again the decision
of question as to whether the application was barred, and
there was no sufficient cause to condone the delay was not
further justicable for the reasons pointed out earlier, and
both the appellate and High Court again fell into an error in
condoning the delay, which question was final. The authority
also fell into an error when it gave its decision on merits
before settling the question of limitation as it could not have
done so without first condoning the delay. In this connection I
would refer to the decisions of the Indian jurisdictions which
also hold that an order in terms of the provisos is not a
direction and is not appealable”.
20.
The word “entertain” again came before the Hon’ble
Supreme Court of Pakistan in All Pakistan Newspapers Society
and others v. Federation of Pakistan and others (PLD 2004 SC
600) in which the Hon’ble Supreme Court of Pakistan held as
under:
“we are of the considered opinion that the learned Single
Judge while disposing of appeal filed before him, either under
Order V, rules 3 or under Order XVII, Rule 5 of the Rules,
1980, cannot decide the question of maintainability of a
petition. Thus, with reference to these rules in the instant
case, expression „entertain‟ would be defined in its ordinary
dictionary meanings i.e. „to receive‟. This definition seems to
be more appropriate because the learned Single Judge in
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Chamber has directed the office „to entertain the Constitution
petition, register it and fix before the Bench‟. Needless to
observe that the Hon‟ble Judges responsible to administer
justice are fully aware about the relevant provisions of law on
the subject and unless it is proved otherwise, it would be
deemed that orders have been passed in accordance with law.
Since Order XXV, rule 7 of the Rules, 1980 is mandatory in
nature, therefore, learned Single Judge was fully aware that
entertainability of petition under Article 184(3) of the
Constitution can only be decided by a Bench of not less than
two members of this Court. Thus, he accepted the
miscellaneous appeal only to the extent of registering the
petition by using the word „register it‟.
Hence it has been held that entertain does not mean the
adjudication.
21.
Now the question arose what is the legal meaning of
word “entertain” used in Section 9 of the Act, 2009. In Section
8 of the Act, 2009, a relaxation is provided to the parties for
bringing the tenancy agreement inconformity with section 5 of
the Act, 2009. The Act of 2009 was promulgated on 17 th of
November 2009 and, as such, two years relaxation under
Section 8 of the Act of 2009 will start after 17 th of November
2009 and as such the time was available to respondent for
registration of tenancy and as such, the application was rightly
entertained. The question now require consideration that even if
the two years is available to parties and the ejectment stand
decided within two years whether the parties will be immuned
for registration of tenancy.
In these circumstances, in my
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humble opinion, the parties will not be exempted from
registration. After promulgation of Act of 2009, the registration
is mandatory but two years time is available to them for
registration and if they have not got registered the tenancy, they
have to pay penalty as provided in law if they want to get the
matter adjudicate from the rent tribunal. The relaxation given
in section 8 enables the court to pass a conditional order at the
time of final conclusion of the ejectment petition ordering that
the eviction/ejectment order will be executable subject to
payment of deposit in terms of Section 9 of the Act, 2009.
Hence, the word “entertain” used in Section 9 of the Act, 2009
is directory in nature unless the time provided in Section 8 is
expired but the registration is mandatory. The other angle of
this word “entertain” can be seen in terms of section 19 of the
Act, 2009. Under section 10 of the Act, 2009 an ejectment
petition will be filed before the Administrative Special Judge
(Rent) of the district and the Administrative Judge may take
cognizance of the case himself or entrust the same to some
other Special Judge (Rent) and, as such, the word “entertain”
used in Section 19 is not much importance but word
“cognizance” used in Section 19 has a serious implication. The
Administrative Special Judge (Rent) will take cognizance on
the rent petition if all the requirements have been fulfilled by
the parties and, as such, the word “entertain” used in section 9
of the Act, 2009 is not mandatory and is used for the purpose of
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registration of petition. No penalty is provided for noncompliance of the provision of Section 8 of the Act, 2009
except a penalty in the shape of 10% of annual value of the rent
premises in dispute. In this case, the petition was entertained by
the learned Special Judge (Rent), issues were framed, the
petitioner was allowed permission to defend the rent petition
and, as such, the learned Rent Tribunal has rightly overruled the
petitioner’s objection keeping in mind that court can pass
conditional order.
22.
There is another aspect of the case, the procedure for
deciding the rent petitions under the Act of 2009 is almost same
which has been provided in Order XXXVII CPC. However,
under Order XXXVII (3) CPC the court will grant leave to
appear and defend, meaning thereby the defendant has to obtain
leave to appear and then will defend the suit, whereas in the
rent petition under the Act of 2009 the word used are “A Rent
Tribunal shall not allow a respondent to defend the application
unless he obtains leave to contest”. This shows that under the
Act of 2009 the respondent as a matter of right is entitled to
appear and can defend the petition subject to grant of
permission by the Rent Tribunal, so tenant has the right to
appear in rent petition but he has to obtain leave to defend the
petition.
23.
The second objection of the petitioner was that the
petitioner himself has failed to file his own affidavit while
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Ch.Muhammad Shahzad Aslam Naz v. Special Judge (Rent) & another
filing the ejectment petition in terms of Section 19 of the Act,
2009 and as such, the petition was liable to be dismissed.
Section 19 of the Act, 2009 read as under:
“19. Filing of application--(1)………………
(2)………………
(3)………………
(4)If the application is for eviction of a tenant, the
landlord shall submit his affidavit and affidavits of not
more than two witnesses alongwith the eviction
application”.
24.
The above said provision of law shows that petitioner has
to submit his affidavit and affidavits of not more than two
witnesses alongwith eviction petition. The filing of affidavits
of witnesses as well as the parties has been introduced in Act,
2009 only to curtail the lengthy procedure for summoning the
witnesses.
25.
Under Order XIX rule 1 Code of Civil Procedure, 1908
the court may at any time for sufficient reason order the party to
suit that any particular fact or facts may be proved by affidavit
but in the Act, 2009 it has been made obligatory that at the time
of institution of ejectment petition, the landlord shall submit his
affidavit and affidavits of not more than two witnesses. As it is
a special law and tenant for defending the ejectment petition has
to obtain leave to defend. The Rent Tribunal while deciding the
application of leave has to assess the facts for allowing or
disallowing the application of leave, hence to give credence and
sanctity to the rent petition it was made obligatory for the
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petitioner to supplement his pleadings with his affidavit, the
reason for attaching the affidavits is to help the Rent Tribunal to
decide the application to defend without recording the oral
evidence. Under the procedure of Act 2009, the tenant in the
first instance has to cross the barrier of permission to defend the
petition, that is the reason it was made obligatory for the
landlord to file his own affidavit of facts as well as the
affidavits of his two witnesses. It is an admitted fact that where
the facts are controverted, the witness has to appear in witness
box for cross-examination. The necessity for filing the affidavit
along with the petition is only to the extent of evaluating the
grounds of tenant for leave to defend.
26.
Under Section 22 of the Act 2009 the tenant while filing
the application has also to supplement his application with his
and his witnesses affidavits. In Section 22 (3) of the Act 2009
the procedure and contents of leave application are given and
under Section 22 (4) the grounds for allowing the permission to
defend the petition are provided.
27.
For better appreciation of the above said provision of
law, Section 22 of the Act, 2009 is reproduced as under:
“22. Leave to contest.—(1)………….
(2)
……………………
(3)
An application for leave to contest shall be in
the form of a written reply stating grounds on
which the leave is sought and shall be
accompanied by an affidavit of the respondent,
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copy of all relevant documents in his possession
and, if desired, affidavits of not more than two
witnesses.
(4)
The Rent Tribunal shall not allow leave to
contest to a respondent unless the application
discloses sufficient grounds for production of
oral evidence.
28.
(5)
…………………….
(6)
…………………….”
Perusal of Section 22 (4) of the Act, 2009 shows that
Rent Tribunal will allow the tenant leave to contest if the tenant
shows sufficient grounds for production of oral evidence. The
reason for enacting the said provision seems that Act of 2009 is
based on written registered tenancy and as such in the case of
written tenancy, the chance of production of oral evidence is
remote, for the simple reason that tenancy is registered with the
Rent Registrar before whom the landlord and tenant will
themselves appear and the denial of written registered
document by either party is very difficult. The word used in
Section 22(4) shows that leave will be granted to appellant only
if he shows sufficient cause for recording the oral evidence,
meaning thereby the tenant has to establish that objections
raised in the application are not covered under the pleadings of
parties and for proving the same, the recording of oral evidence
is necessary and once leave to defend has been allowed, the
landlord has to prove his case and his witnesses as well as the
landlord himself has to go to the process of cross-examination,
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hence in my humble opinion, the submission of affidavits with
the rent petition are necessary for deciding the leave application
of tenant and in case of failure of landlord to submit the
affidavit, the rent controller may allow the tenant to defend the
petition and this is the maximum penalty which can be gathered
for the said violation. In the present case, in spite of the fact
that petitioner while filing the affidavits has not controverted
the contents of affidavits of two witnesses through their counter
affidavit, etc. Learned Rent Tribunal has allowed permission to
petitioner to defend the petition. The objection of non-filing the
affidavits becomes non-existent after the grant of leave to
defend and now the rent petition has to be decided by recording
the oral evidence and, as such, the learned Rent Tribunal has
rightly held that non-filing of petitioner’s affidavit was not fatal
and he rightly allowed the respondent No.2 to file his own
affidavit in examination-in-chief.
29.
The upshot of the above discussion is that this petition
fails and is DISMISSED.
(Muhammad Khalid Mehmood Khan)
Judge
*KMSubhani*
Approved for reporting.