JUDGMENT SYED KAZIM RAZA SHAMS', J.---By way of this judgment, I proceed to dispose of Writ Petition Nos.5810 of 2010, 5811 of 2010, 5812 of 2010, 5813 of 2010 and 5814 of 2010 as the same have been filed by one landlord against his five Tenants. Besides the judgments of the court below are identical.
2. All these constitutional petitions are directed against an order dated 16-3-2010 passed by Mian Muhammad Anwar, learned Additional District Judge, Sialkot whereby he while accepting the appeals of the tenants remanded the case to the learned Special Judge Rent, Sialkot for having the compliance of sections 8, 9, 19 and 21 of the Punjab Rented Premises Ordinance, 2007.
3. Nisar Ahmad and another filed five ejectment petitions against their tenants Manzoor Ahmad, Tariq Mehmood, Muhammad Ashfaq etc., Muhammad Asif Butt etc. And Ghulam Rasool etc. On the grounds of default in the payment of rent and expiry of the agreement.
4. In the ejectment petitions, it was contended that there was an oral tenancy between the parties.
The respondents were holding possession of the disputed shops at the monthly rent of Rs.1,600 per month per shop. The terms of oral agreement had expired. The respondents in "punchayat" promised to vacate the premises on 1-1-2009 but the needful was not done by them. The ejectment petitions were filed on 28-1-2009 before the learned Rent Controller.
5. In written reply, which was subsequently treated as leave application, it was contended by the respondents that the property did not fall within the municipal limits as such, the Rent Laws are not applicable. It was denied that they were defaulters in the payment of rent.
6. The learned Special Judge Rent dismissed the leave applications and after passing the final order directed the respondents to vacate the premises. The findings of the learned Rent Tribunal were assailed in appeals by the respondents which were accepted by the learned Additional District Judge, Sialkot by way of the judgment impugned in these writ petitions. The learned appellate court while holding that the tenancy agreement was not brought in conformity with the provisions of section 8 of Punjab Rented Premises Ordinance, 2007 as such, the landlord was liable to pay the fine of 10% and remanded the case to the learned Rent Tribunal for taking proceedings under sections 8 and 9 of the Ordinance.
7. These constitutional petitions are directed against the said remand order of the learned first appellate court.
8. It is contended by the learned counsel for the petitioners that at the time of the institution of the ejectment petitions i.e. 28-1-2009 there was no tenancy existed as such, section 8 of the Ordinance is not applicable and the direction given by the learned first appellate court is against the law.
Learned counsel further contended that section 8 of the Ordinance is not applicable to the expired tenancy. In this connection, the learned counsel has cited unreported judgment dated 26-2-2009 recorded in Writ Petition No,3678 of 2009 tilted Syed Salman Gillani v. Additional District Judge and others judgment dated 10-2-2010 passed in Writ Petition No.19643 of 2009 titled Muhammad Usman and others v. A.D.J. Lahore and others MAN Khan through Special Attorney and 2 others v.
Mst. Naseem Bibi and 9 others (PLD 2010 Lahore 389) and Muhammad Zaman v. Akram Hussain and others (2011 CLC 755).
9. Learned counsel for the respondents while supporting the order of the learned first appellate court submitted that the court had rightly remanded the case to the trial court for having the compliance of mandatory provisions of law.
10. Parties heard and record perused.
11. The contention of the learned counsel for the petitioners that at the time of institution of the ejectment petitions, the tenancy had expired as such, section 8 of the Ordinance was not applicable (sic) incorrect proposition. Admittedly, at the time of promulgation of the Punjab Rented Premises Ordinance, 2007 i.e. 16-11-2007, the tenancy of the petitioners was in existence. According to the provision of section 8, it was mandatory for the petitioners to bring the existing tenancy in conformity with the requirement of that section. It is not to be seen as to when the ejectment petitions were filed rather it is to be examined that at the time of promulgation of Law any tenancy was in existence. As per record, the petitioners themselves admitted that their tenancy expired on 28-1-2009 much after the promulgation of the Ordinance. So the petitioners under section 8 of the Ordinance, which provides the legislative expediency contained in the words "as soon as possible", was bound to comply with the direction of that section by approaching Registrar of Rent Tribunal.
The outer limit for bringing the agreement in line with the said provision was fixed as two years, thus, in the given circumstances, the petitioners were bound to bring their agreement in accordance with the provision of Ordinance "as soon as possible".
12. The contention of the learned counsel about expired tenancy and non-application of section 8 of the Ordinance in this scenario is repelled. This court has noticed that the learned appellate court should not remand the case to the learned Rent Tribunal only for the compliance of sections 9 of the Ordinance rather the court had the jurisdiction to itself direct the petitioners to deposit the fine of 10% as provided in section 9 of the Ordinance. In case of noncompliance of such direction of the court, the learned appellate court may proceed against the landlord. I am, therefore, of the view that the remand order is totally unjustified as the act directed to be performed by the trial court could also be done by the appellate court itself.
13. The constitutional petitions in the afore-noted circumstances are thus allowed. The impugned orders of the learned appellate court are set aside. The cases are sent back to the learned Additional District Judge, Sialkot for re-deciding the appeals on their merit. The court shall also direct the present petitioners, the respondents in the appeals to deposit the fine of 10% as enunciated in section 9 of the Ordinance (ibid) and for this purpose shall afford a reasonable time to the respondents for compliance. The parties shall appear before the appellate court on 20-7- 2011.