' MAULVI ANWARUL HAQ, J.---According to the contents of the W.P., petitioner No, I is the mother of the petitioner No,2. She is a tenant in a building bearing No,96-A/1 in Gulgasht Colony, Multan, which was let out to her by Hamid Aslam Malik, deceased husband of respondent No,6, vide agreement dated 5-10-1999 (Annex-A). An educational institution is being run in the said building by petitioner No,2. According to the writ petition, the rent at the agreed rate of Rs,18,000 for a period of three years and thereafter, with an enhancement of 25% in terms Of the agreement of tenancy, has been paid upto August, 2005. On 21-8-2005, the police of Police Station Gulgasht Colony, Multan headed by respondent No,1, took forcible possession of the building. A mandamus is being sought directing the respondents to restore the possession so taken illegally. Writ petition was filed in this Court on 27-8-2005, which came up on 29-8-2005 when a report from respondent No,3 was sought in presence of learned law officer. Report was filed and put up on 31-8-2005, when it was noted that the report is not satisfactory. DIG., Multan was called upon to look into the matter and to make a detailed report. This report was submitted on 17-9-2005. Meanwhile, respondent No,6 had also entered appearance through Mr. Tariq Rajwana, Advocate who was called upon to file reply.
This reply was filed on 26-10-2005. Writ petition was admitted to hearing vide order dated 14-11- 2005.
2. Now the DIG, Police, Multan Range, Multan, got the matter inquired into through DPO., Mullah. The relevant portion of the report is reproduced hereunder:-- "It is transpired during enquiry that Mr. Shabbir Jafri, husband of Mst. Jamil Fatima, petitioner had good relations with landlord late Hameed Aslam Malik who was the Dy. Inspector-General of Police in service. During his lifetime, Shabbir Jafri, could not dare to refuse payment of rent or retain the possession of the building without payment rent. However, after his death, his attitude towards the widow was suddenly changed upon which she felt his mala fide intention and gave him written notices in November, 2004 but Mr. Shabbir Jafri did not pay heed and did not make any suitable ,arrangement for shifting of school and vacation of the building. He kept the possession of the building with mala fide intent as he had already started running the joint cadet school in another building with complete set up at Bosan Road, Multan. The photos of said school are attached herewith. He was also served notices of vacation through TCS but he remained unresponsive and reluctant. His mala fide-and ulterior motives to retain the possession were too obvious as he could conveniently vacate the building having ample time during summer vacation. Since there had erupted a dispute between the parties the local police had visited the spot for protection of the widow landlady to avoid any untoward incident. The possession of the building was taken by the owner party. Police reached there to avert any untoward incident due to long-standing dispute between the parties.
FINDING I have gone through the record, photographs and heard both the parties at length and come to conclusion that the tenant party hadmala fide intention due to which delaying tactis were used. On the other side widow of the late police officer was falsely alleged for using police as an instrument.
Police played a vital role to maintain peace and was not involved to illegally dispossess the tenant, please.
(Munir Ahmad Chishti) PSP District Police OfficerMultan"
3. Now according to the reply filed by respondent No,6, it has been admitted that the building was let out to the petitioner No,1, vide agreement dated 5-10-1999. It was alleged that the petitioners have, without permission of L.Rs, of Hamid Aslam Malik, raised new construction in the rented premises. At the same time, it was stated that the petitioner promised that in case additional property tax is imposed as a result of the said construction, they will enhance the rent proportionately. The property tax was increased from Rs,20,000 to Rs,70,000. Notice was sent on 6- 1-2005 calling upon the petitioner No,1 to pay the additional rent of Rs,10,000 per month with effect from January, 2004 and also to pay Rs,50,000 additional property tax and she was also called upon to vacate the premises within one month of the receipt of the said notice. The petitioners, however, stopped payment of rent and they are rent defaulters. It was then stated that petitioner No,1 informed the respondent No,6 telephonically that she will vacate the property till 1-6-2005 and will also pay rent at the enhanced rate but the needful was not done. The property was personally required by the respondent No,6 and the petitioners were called upon to hand over the vacant possession within 15 days vide notice dated 12-5-2005. It was then stated that pursuant to repeated requests of respondent No,6 the petitioner left the premises without any intimation. It was further stated that when the petitioners were in the process of shifting and removing the furniture from the said building, servants of respondent No,6 stopped then to do so without paying rent amount of Rs,1,80,000 and Rs,50,000 and the police was called by the, petitioners themselves.
4. A rejoinder has been filed by the petitioners to the said reply of respondent No,6. Along with rejoinder a statement of bank account has been filed depicting various entries of the payment made to the respondent-lady through cheques on account of rent. The reply given to the notice served on behalf of the respondent-lady has also been filed.
5. Learned counsel for the petitioner contends that it is a case of sheer high-handedness only because the deceased husband of the respondent-lady was a senior police officer, they have been forcibly ejected in violation of the law of the land and particularly all the provisions protecting the rights of a tenant of urban property.
6. Learned A.A.-G. Argues that alternate remedies being availableand some factual controversy being involved, the writ petition is not competent. According to him the petitioner can have resort either to a suit under section 9 of the Specific Relief Act, 1877 or a complaint under Illegal Dispossession Act, 2005. Mr. Tariq Rajwana, Advocate, learned counsel for respondent No,6 while endorsing the said arguments of learned A.A.-G. Insists that the petitioners had themselves left the premises and were not forcibly ejected. Mr. Haqnawaz Hamayon, Advocate rejoins to cite the cases "Ijaz Ahamd and others. v. The State" (PLD 2001 Lah. 94), Abdul Haq and 2 others v. The Resident Magistrate Uch Sharif and others (PLD 2000 Lah. 101) and "Muhammad Aslam v. Station House Officer and others (1993 MLD 152), to urge that in the facts and circumstances of the case, the writ petition is competent and no factual controversy is involved.
7. I have gone through the file of this case. Now I have already reproduced above the material contents of the writ petition, the report of the PO, Multan pursuant to inquiry instituted by the DIG and the reply of respondent No,6. Now there is no denial that the petitioners were in lawful possession of the building in question under agreement admittedly entered into between the petitioner No,1 and the predecessor-in-interest of respondent No,6. Now despite verbosity in the said inquiry report, the DPO has not been able .To deny that the police was present when the dispossession took place. According to him the presence was necessary to maintain peace. Now respondent No,6 has alleged default in payment of rent and personal requirement of the property and then she has abruptly stated that on her request the petitioners themselves left the property and in fact while doing so they were stopped from removing their goods. She has further proceeded to say that the police was called by the petitioners. The fact remains that till 21-8-2005, the petitioner's were in legal possession when on the said date they were dispossessed in presence of the police which according to the DPO had gone there to protect the widow of the late DIG
8. Now, I will not be commenting upon the allegations of default and the plea of personal use which will, of course, be looked into by a learned Rent Controller. However, assuming that the default was so committed and the property is required personally by the respondent-lady or her children bona fide, section 13 of Punjab Urban Rent Restriction Ordinance, 1959 lays down in mandatory terms that a tenant in possession of a building shall not be evicted therefrom except in accordance with the provisions of section 13. Now the said provisions of law narrates the grounds on which a tenant can be ordered to be ejected on application of a landlord by the Rent Controller. This includes default in payment of rent being alleged by the respondent (section 13(2)(i)) and bona fide personal requirement (section 13(3). Now even if it be assumed that the petitioners had walked out of the building still respondent No,6 could not have ejected them in view of section 13(2)(v) which provide the necessary ingredients of the ground of ejectment if a tenant ceases to occupy the building.
9. Now the said objections of the learned A.A.-G. Stand fully answered in the D.B. Judgment of this Court in the case of "Abdul Haq and 2 others", cited above. In all the above noted cases, cited by the learned counsel for the petitioners, the tenants were ejected otherwise than in due course of law and ordered to put back in possession. This writ petition is allowed and respondent No,1 is directed to take steps for delivering back of the possession of building No,96-A/I., Gulgashat Colony, Multan to the petitioners, not later than noon tomorrow and to file a report in this Court accordingly. Respondent No,6 or any other L.R. Of late Hameed Aslam Malik or all of them can file an ejectment petition on the grounds available to them under the law for ejectment of the petitioners from the said building. In case such an ejectment petition is filed, the learned Rent Controller shall take all steps to decide the same not later than three months from the date of institution, of-course, in accordance with law. A copy of this order to be ,remitted to the learned District Judge, Multan for imparting necessary instruction in the matter.
No orders as to costs.