SYED MANSOOR ALI SHAH, J, - Brief facts of the case are that the petitioner had leased of 3rd floor (aerial view 4th floor) of "Ahad Arcade" measuring 18,000 sq.Ft, to the Respondent No. 1/bank vide lease agreement dated 1.9.2006. The petitioner filed an ejectment petition under Section 19 of the Punjab Rented Premises Ordinance, 2007 against the respondents on the basis of default in payment of rent on 7.10.2008.
2. The respondents filed their leave to contest on 30.10.2008. The learned Rent Controller vide impugned order dated 15.6.2009 framed the following issues between the parties;- "(i) Whether the relationship as landlord and tenant does not exist between the petitioner and respondent? OPR
(ii) Whether the respondent is wilful defaulter in payment of rent, if so, from which date and a what rate? OPP."
3. The petitioner has challenged the framing of issue No. 1 through the instant petition.
4. Counsel for the petitioner submitted that lease agreement dated 1.9.2006 was for a period of ten years and is subsisting. Counsel further submitted that as per clause 3(VII) the lease agreement can be terminated at any time on the sole option of the lessee (respondent/bank) but not by the lesser (petitioner) by giving three months' notice in writing to the lessor, It is contended that no such notice of termination was served on the petitioner.
5. That para-4 of the Leave to Contest states:- "That the Respondent Bank did not default in the payment of the rent to the Petitioner however,'
Respondent Bank remained in Lease Agreement with the Petitioner for the years 2006-2007 and 2007- 2008. Thereafter, the Petitioner entered into Lease Agreement with WATEEN TELECOM' (PVT.)
LTD., vide Lease Agreement dated 11th day of February, 2008. On the ground the petition for ejectment against Alfalah Bank is not maintainable because they are not occupying the said rented premises."
(emphasis supplied)
The counsel for the petitioner submitted that the said paragraph is incorrect. He argued that Wateen Telecom (Pvt.) Ltd, in the said proceedings have moved an application under Order I, Rule 10, C.P.C, on 10.1.2009 to be impleaded as necessary party but their application was dismissed bn 17.3.2009. The said dismissal was upheld by this Court in Writ Petition No. 5378/2009, dated 15.4.2009 (reported as PLD 2009 Lahore 429) and finally leave was refused in the matter by the august Supreme Court of Pakistan (this fact was confirmed by the counsel for the respondents). Relying on these orders of dismissal on the application under Order I, Rule 10, C.P.C, the counsel submits that paragraph-4, re-produced above, losses its significance to the extent of the lease agreement entered in favour of Wateen Telecom (Pvt.) Ltd. He further contends that the respondent/bank has not stated or denied that the lease agreement dated 1.9.2006 has been terminated and paragraph-4, mentioned above is evasive in this regard. The petitioner, therefore, prayed for setting aside issue No. 1 regarding existence of relationship of landlord and tenant. Counsel further contended that the denial of respondent No. 1 is to the extent that they are not occupying the rented premises which according to the respondent No. 1 is occupied by Wateen Telecom (Pvt.) Ltd.
(a sister concern of respondent No. 1). Counsel argued that denial as to the extent of occupation does not mean that the petitioner has, denied the relationship of landlord and tenant between the parties and, therefore, issue No. 1 has been wrongly framed.
7. Counsel for the respondents started of by arguing that the petitioner has violated Sections 8 & 9 of the Punjab Rented Premises Ordinance, 2007 and, therefore, they cannot be granted any leave by this Court. On the question of lease agreement counsel for the respondents categorically stated that the said agreement was entered on, 1.9.2006 for a period of ten years and has not been terminated under clause 3(VII) of the said agreement and no notice of termination has ever been served on the petitioner. He rather confusingly kept referring to the new agreement allegedly entered between the petitioner and one Wateen Telecom (Pvt.) Ltd. The only submission made by the respondents is that they are not in possession any more as Wateen Telecom (Pvt.) Ltd.
(admittedly a sister concern of respondent No. 1) are occupying the premises currently and that the respondent's. Lease Agreement was till 2007-2008.
8. Arguments heard and record perused. The requirement for framing of issues in a matter is clearly dealt with by Order XIV of the C.P.C. Order XIV, Rule 1, sub-rules (1) to (5), C.P.C, state as under:- "(1) Issues arise when a material proposition of fact of law is affirmed by the one party and denied by the other.
(2) Material propositions are those propositions of law or facts which a plaintiff must allege in- order to show a right to sue or a defendant must allege in order to constitute his defence.
(3) Each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue.
(4) Issues are of two kinds: (a) issues of fact, (b) issues of law.
(5) At the first hearing of the suit the Court shall, after reading the plaint and the written statements, if any, and after such examination of the parties as may appear necessary, ascertain upon what material propositions of fact or of law the parties are at variance, and shall thereupon proceed, to frame and record the issues on which the right decision of the case appears to depend,"
The other important provision is Order XIV, Rule 5(2), C.P.C, which states that:- "The Court may also, at any time before passing a decree, strike of any issues that appear to it to be wrongly framed or introduced."
9. On the basis of the above provisions, perusing the ejectment petition and the leave to contest, it appears that' para-4 of the leave to contest forms the basis of issue No. 1.
10. Even if, as per the arguments of the counsel for the petitioner the part of para-4 dealing with Wateen Telecom (Pvt.) Ltd. Is taken of, there still remains the reply of the respondent Bank to the extent that "Respondent Bank remained in Lease Agreement with the petitioner for the years 2006- 2007 and 2007-2008. On this ground the petition for ejectment against Al-Falah Bank is not maintainable because they are not occupying the said entered premises."
11. This alone justifies the framing of Issue No. 1. Even if para-4 is further reduced to "Respondent Bank remained in Lease Agreement with the petitioner for the years 2006-2007 and 2007-2008."
This alone to my mind entitles the framing of the issue regarding the relationship of landlord and the tenant.
12. The arguments levelled by the counsel for the petitioner before this Court, especially regarding the terms of the Lease Agreement and clause 3(VII) regarding termination can best be argued before the Special Judge Rent/Rent Controller, It is also noted that the contents pertaining to Wateen Telecom (Pvt.) Ltd. Cannot be totally washed away for the purpose of framing of the issue.
The earlier round of litigation, especially judgment of this Court reported as PLD 2009 Lahore 429 qualified in the last line of the judgment that "any observation made in this order shall not cause any prejudice to the petitioner (respondent No. 1) in any other proceedings."
13. Further, the petitioner failed to apply for striking down or modifying the issue before the same Court under Order XIV, Rule 5(2) and has approached this Court in its Constitutional jurisdiction.
14. In view of the above, considering the pleadings of the parties, issue relating to relationship of the landlord (petitioner) and tenant (respondent No. 1) had to be framed. I am, however, uncomfortable with the language of issue No. 1 as framed by the Trial Court. The correct issue would be:- "Whether there is a relationship of a landlord and a tenant between the parties? OPP"
15. In view of the above, the impugned order is upheld, issue No. 1 is replaced with the issue mentioned .Above. The instant petition is, therefore, dismissed. No orders as to costs.