This order shall dispose of Writ Petition No, 19643 Of 2009 and Writ Petition No, 188 of 2010 as both the petitions are directed against the same consolidated order dated 17.09.2009, passed by the learned Additional District Judge, Lahore (Respondent No, 1).
2. Brief facts are that the petitioners filed an eviction petition against Respondent No, 3 on 26.05.2008 on the grounds of default and expiry of the period of tenancy. Respondent No, 3 filed leave to defend while one Haji Wazir Muhammad (Respondent No, 3 in the connected W.P. No, 188 of 2010) filed an application under Order I, Rule 10 of the Code of Civil Procedure (Act No, V of 1908) to be impleaded as party to the eviction petition. The leave application along with application under Order I, Rule 10 CPC were dismissed on 9.10.2008. However, while parting with the order, the Rent Controller imposed penalty on the petitioners under Section 9(b) of the Punjab Rented Premises Ordinance, 2007 ("Ordinance") (Punjab Ordinance No, XXI of 2007) with the direction to deposit the same in the government treasury within four months from the date of the order or else the ejectment petition would be.deemed to have been rejected.
3. Parties filed appeals against the said order. Petitioners' appeal was only to the extent of penalty imposed vide order dated 9.10.2008 of the Rent Controller. Through a consolidated judgment dated 17.9.2009 learned Additional District Judge, Lahore dismissed the appeal of the petitioners and upheld the penalty imposed under Section 9(b) of the Ordinance while allowing the appeal of Respondent No, 3 and Haji Wazir Muhammad (Respondent No, 3 in the connected writ petition). The said order is impugned before this Court in constitutional jurisdiction.
4. Counsel for the petitioners argued that the sole ground for the dismissal of their appeal was that their tenancy agreement was not registered at the time of filing of the eviction petition. He submitted that the impugned order proceeds on the assumption that if Section 9 of the Ordinance is not complied with as a condition precedent the eviction petition or any other application is not maintainable. Petitioners submitted that their tenancy agreement on the basis of which eviction petition was filed, was dated 30.04.2007, the Ordinance in question was promulgated on 16.11.2007 and, therefore, the tenancy in question was an existing tenancy and was, therefore, protected under Section 8 of the Ordinance wherein a maximum period of two years have been granted to bring the existing tenancy in conformity with the provisions of the Ordinance. He submitted that the said period of two years would have lapsed on 16.11.2009 and during the concessional period of two years Section 9 could not be applied to the existing tenancy as opposed to the new tenancy. He further submitted that reliance in the impugned order on a judgment of this Court i,e, "Messrs Wateen Telecom (Pvt.) Ltd. through Attorney v. Malik Abdul Ahad and 2 others" (PLD 2009 Lahore 429) is misplaced. He submits that this case has no application to the present case as according to the facts of the said case it pertains to a new tenancy and, therefore, the question of existing tenancy and the protection of Section 8 of the Ordinance were not under consideration in the said judgment.
5. Counsel for Respondent No, 3 submitted that Section 9 of the Ordinance is applicable to the present case as it does not create distinction between the new and the existing tenancy and is applicable to both the tenancies. She further submitted that according to the eviction order dated 09.10.2008 the petitioners were to deposit the said penalty within four months but he deposited the same in January, 2010, however, having deposited the said amount they are estopped from challenging the vires of the sections as the petitioners have already acted upon the said provisions of law.
6. In rebuttal, counsel for the petitioners submitted that the petitioners have challenged the said provision .of law before the learned Additional District Judge and at the same time under protest complied with the order of the Rent Controller.
7. Counsel for Respondent No, 3 in the connected Writ Petition No, 188/2010 supported the arguments of the counsel for Respondent No, 3 in this case and submitted that Section 9 of the Ordinance applies with full force to the petitioners.
8. Arguments heard. The sole question for determination in this case is the interpretation of Sections 8 and 9 of the Punjab Rented Premises Ordinance, 2007 and the importance of registration of tenancy agreements. For ready reference Preamble, Sections 2(m) 5, 8 and 9 of the Ordinance are reproduced here under:-- "Preamble: 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; 2(m) "Tenancy agreement" means an agreement in writing by which a landlord lets out a premises to a tenant.
5. Agreement between landlord and tenant.--(1) A landlord shall not let out a premises to a tenant except by a tenancy agreement.
(2) A landlord shall present the tenancy agreement before the Rent Registrar.
(3) The Rent Registrar shall enter the particulars of the tenancy in a register, affix his official seal on the tenancy agreement, retain a copy thereof and return the original tenancy agreement to the landlord.
(4) The entry of particulars of the tenancy shall not absolve the landlord or the tenant of their liability to register the tenancy agreement under the law relating to registration of documents.
(5) A tenancy agreement entered in the office of a Rent Registrar or a certified copy thereof shall be a proof of the relationship of landlord and tenant.
(6) Any agreement which may be executed between the landlord and the tenant in respect of the premises shall be presented before the Rent Registrar in the same manner as provided in sub- section (2).
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 Ordinance, bring the tenancy in conformity with the provisions of this Ordinance.
9. Effect of non-compliance.--If a tenancy does not conform to the provisions of this Ordinance, the Rent Tribunal shall not entertain an application under this Ordinance:--
(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."
(emphasis supplied)
9. The objective of the Ordinance underlined in the preamble is to regulate the relationship of landlord and tenant and to provide an expeditious mechanism for settlement of their disputes. This objective finds translated in Section 5 of the Ordinance, which introduces the requirement of a Tenancy Agreement (a written agreement) and its registration with the Rent Registrar by the landlord. Under Section 5(5) of the Ordinance the Tenancy Agreement registered in the office of the Rent Registrar or a certified copy thereof "shall be a proof of the relationship of landlord and tenant."
10. Advantage of a written and a registered Tenancy Agreement is that it acts as a written and registered proof of the relationship between landlord and tenant. A large majority of rent matters arise out of denial of the said relationship. Therefore, on a policy level, the purpose of Section 5 is to minimize unnecessary rent related litigation and to provide effective enforcement of rent/tenancy agreements. The legislation also has an economic underpinning. Reduction in unnecessary rental litigation and confidence of public in the enforcement of rental agreements will boost the rental market and encourage more real estate to enter the rental sector thereby reducing the shortage of housing and providing an impetus to the economy. On the whole the legislative intent is to better regulate the rental affairs of landlord and tenant, reduce litigation and create healthy economic activity.
11. While the new tenancies are to be registered under Section 5 of the Ordinance. The existing tenancy is provided for under Section 8 of the Ordinance. The said section mandates that the existing tenancy should be registered as soon as possible but not later than two years from the date of coming into force of this Ordinance i,e, 16.11.2009. The phrase as soon as possible in the above section reflects the legislative urgency while at the same time a comfort period of two years is also provided. The legislative intent in this section appears to carry both: a sense of urgency coupled with a concessional breathing period. The gap mentioned above needs to be explored and understood for proper understanding of the Ordinance. I will come to this later once I have discussed the other provisions of the Ordinance.
12. The requirement of registration of tenancy agreement is further highlighted in Section 9 of the Ordinance, which provides that no application under the Ordinance (applications as mentioned in Section 19 of the Ordinance) shall be entertained unless the tenancy conforms to the provisions of this Ordinance. The fine provided under Section 9(a) and (b) is yet another incentive for registration and a disincentive for keeping unregistered agreements hanging.
13. The interpretation of the preamble and Sections 5, 8 and 9 have to be done in a manner which brings out the true legislative intent, suppress the mischief intended to be suppressed and advance the remedy provided under the law. The task of interpretation is not a mere exercise of any mechanical jurisdiction. Courts are entitled to probe and find the intention of the instrument, and its purpose and give meaning to the words to further the same so as to suppress the mischief and further just and fair results. The statutes have to be construed in a manner so as to promote the purpose and object of the Act, and not too literally so as to defeat the purpose or render the provision meaningless and otiose ...Interpretation must depend on the text and the context. They are the basis of interpretation. One may well say if the text is the texture, context is what gives colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted." Interpretation of Statutes by N.S. Bindra (Tenth Edition, Page 338).
14. Lord Denning, in his book, The Discipline of Law, made a seminal observation on 'ironing out the creases' by quoting a passage from Seaford Court Estates Ltd v. Ashar ([1949] 2 All ER 155); 'Whenever a statute comes up for consideration it must be remembered that it is not within human powers to foresee the manifold sets of facts which may arise, and even if it were, it is not possible to provide for them in terms free from ambiguity. The English language is not an instrument of mathematical precision. Our literature would be much the poorer if it were. This is where the draftsman of Acts of parliament have often been unfairly criticized. A Judge, believing himself to be fettered by the supposed rule that he must look to the language and nothing else, laments that the draftsman have not provided for this or that, or have been guilty of some or other ambiguity. It would certainly save the judges trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears a judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from consideration of the social conditions which gave rise to it and of the mischief which it was passed to remedy, and then he must supplement the written words so as to give 'force and life; to the intention of the legislature...A judge should ask himself the question: If the makers of the Act had themselves come across this ruck in the texture of it, how would they have straightened it out ?
He must then do as they would have done. A judge must not alter the material of which it is woven, but he can and should iron out the creases. (emphasis supplied).
15. Reading of Sections 5, 8 and 9 of the Ordinance shows that the Ordinance is a piece of beneficial legislation. Not only providing benefit to the parties (landlord and tenant) but also helping in reducing the large number of rent cases pending in Courts. This is in addition to the economic activity. It is intended to generate in the real estate sector. Being a beneficial legislation it has to be construed liberally in order to bring out the real intent of the legislature and also to ensure that its multiple benefits are fully enforced and extended. Reliance is placed on Messrs Ashraf Sugar Mills Ltd. through General Manager vs. Manzoor Ahmad (2006 SCMR 1751) and Ijaz Akhtar vs. Secretary, Punjab Public Service Commission and others (1990 PLC (C.S.) 749).
16. Where existing tenancy agreement is in writing, the same can be easily registered and there is no reason why the landlord should shy away from registering the same. I am of the view that part of Section 8 emphasizing legislative urgency of bringing the tenancy in conformity with the Ordinance as soon as possible fully applies to written existing tenancies. In the facts of the present case the existing tenancy agreement is in writing and is therefore required to be registered as soon as possible and certainly before invoking Section 9,of the Ordinance. In case Section 9 is invoked without registration of the tenancy agreement the landlord or the tenant is liable to pay the fine provided therein. This interpretation, to my mind, advances the real object of the law and does justice to its beneficial intent.
17. Section 9 as far as written existing tenancy is concerned is Therefore an independent provision.
The application of the landlord cannot be entertained unless it is registered and the tenancy brought in conformity with the Ordinance or else the landlord in such situations is liable to pay the fine and cannot stand behind the comfort period of two Years provided in Section 8 of the Ordinance.
18. The comfort period provided in Section 8 in my opinion provides for an oral tenancy agreement, which for several different reasons, might require time to reduce the same into writing. The said period is provided to cover for such delay. I am also of the view that in exceptional cases where the tenant for some reason refuses to reduce the oral agreement in writing despite of landlord's insistence, the import of Sections 8 and 9 of the Ordinance will have to be revisited afresh. As this is not the case before me, I leave these questions to be dealt with in an appropriate case.
19. For the above reasons. I hold that where existing tenancy is in writing, the same ought to be registered as soon as possible and the rigours of Section 9 of the Ordinance will fully apply to such a tenancy agreement. I find no illegality in the impugned order, wherein the petitioners have been directed to deposit the penalty under Section 9(b) of the Ordinance. I therefore maintain Order dated 17-9-2009 of the Leaned Additional District Judge, Lahore to the extent of the fine only.
However, considering that the petitioner has already deposited the fine on 28.1.2009, no useful purpose will be served in remanding the case to the Rent Tribunal in this particular case. I, therefore, modify the impugned order to the extent of remand. The appeals of the respondents will be deemed to be pending before Additional District Judge Lahore, who will decide the same on merits expeditiously.
20. This petition is, therefore, partially allowed in the above terms.