' IJAZ AHMAD, J.--- Mian Bashir Ahmed, father of respondent No,3 allegedly entered into an agreement with Muhammad Siddique and two others in respect of land measuring 150 kanals, 4 marlas situated in mauza Bhoti Pind Taxila for setting up a brick kiln. The lease period was 30 years.
The annual rent was settled at Rs,9, 000/- per annum besides Rs,6;000/ - to be paid as charges for the water. The yearly rent was agreed to be paid in advance and the agreement was to, commence on 1-1-1979.. In the year 1990, the petitioner got the possession of the land and started paying the rent as, it was being paid by Muhammad Siddique and others. The rent was accepted by the landlord. The respondent-landlord however, made an eviction application on 7-9-2009 under the Punjab Rented Premises Ordinance, 2007. It was later on amended in view of the enactment of Punjab Rented Premises (P.R.P.) Act, 2009. It was alleged that Muhammad Siddique etc., the original tenants had sublet the property in question to the petitioners in the year 1990 without the landlord's consent. It was however orally decided between the parties that the petitioner will complete the tenancy period of 30 years commencing from 1979. Land measuring 125 kanals consisting of 60 rooms constructed thereupon was handed over to the petitioner. The lease period at the time of making of the application was alleged to have expired. The payment of the yearly rent up to the year 2008 was acknowledged. Default in payment of rent was alleged thereafter. This application was resisted by the petitioner, the tenant. It was averred that the petitioner being the co-sharer cannot be evicted from the premises through the eviction application and the petition was not maintainablein the said form; that the lease period would commence from the year 1990 and end in December, 2020. The application was therefore premature. Subletting was denied and oral agreement for 30 years from 1990 was pressed. The default in payment of rent was refuted. It was alleged that the applicant had refused to receive the rent for the year 2009. Issues were framed. The parties led evidence.
2. It is contended by the learned counsel for the petitioner that there was an oral agreement between the parties that the lease period would commence from the year 1990 and end in December, 2020, thus the petition was prematter. He refers to the statement made by the landlord as A.W.-1 and that of Haji Ghulam Sarwar as A.W.-2 who admitted and the statement of Tanveer Akhtar/R.W.-2 who stated that Khasra Nos. Mentioned in the lease agreement of the year 1979 and those given in the possession to the petitioner in 1990 vary each other to a considerable extent.
Even the area has been reduced by 25 Kanals. Thus a new contract for the same length of period replaced the earlier; that the petitioner having paid the rent due till the year 2008 and having tendered the same for the year 2009 through a money order which was not received by the respondent-landlord, cannot be termed to be a wilful defaulter; that short lapses, measureable in weeks in payment of the yearly rent in time, incurred by the petitioner, do not constitute the wilful default. Relies on "2010 SCMR 1071" titled Muhammad Arshad Khokhar vs. Mrs.. Zohra Khanum and others "PLD 1987 Lahore 599" titled Abdul Hamid v. Muhammad Rafique Chaudhry and 2 others "19$7 SCMR 1313" titled. Inayat Ullah v. Zahoor-ud-Din and another, and PLD 1992 Karachi 307' titled L.
Hussain v. Muhammad Nawab and 4 others. He submits that a brick kiln and the land attached with it, is a factory and does not fall within the definition of a building or rented land under the Punjab Rented Premises Act, 2009, therefore the petitioner cannot be made to vacate the premises pursuant to adjudication made in an eviction application under the Act. Relies on "1991 SCMR 1944" titled Raja Khurshid Ali v. Dr. Abdul Malik, that a brick kiln is a factory and not a building. He relies on "AIR 1966 SC 1998". Titled Ghanshiam Das v. Debi Prasad and another "1966 Crl.L.J 228", titled Prabhulal Potadia v. State on 3 August, 1965. He also refers to "AIR 1965 SC 716" titled Uttamchand v.
S.M. Lalwani wherein a Dal factory was excluded from the definition of a building. He argues that the jurisdiction of a Tribunal is of paramount consideration which in the instant case did not rest with the learned Special Judge (Rent). Relies on "2008 SCMR 240" titled Izhar Alam Farooqi, Advocate v.
Sheikh Abdul Sattar Lasi and others and "2006 SCMR 1630" titled Executive District Officer Schools and Literacy, District Dir Lower and others v. Qamar Dost Khan and others. It is further submitted that the application made without depositing a fine equivalent to 10% of the annual value of the rent as required under section 9 of the Punjab Rented Premises Act, 2009 was not entertainable.
Relies on "PLD 1986 SC 178" titled Col. (Retd.) Syed Mukhtar Hussain Shah v. Wasim Sajjad and 30 others. Lastly argues that although the concurrent findings are in favour of the respondent, yet the same are based on non-reading of the evidence and are arbitrary in nature, therefore, there is room for interference by this Court. Relies on "PLD 2001 SC 149" titled Dilawar Jan v. Gul Rehman and 5 others and "2004 YLR 2905" titled Ch. Mussarat Ahmad v. Ch. Fazal Ahmad and W.P.No,372 of 2009 titled Zhange Gougen v. Mst. Jahanzeba Begum.
3. On the other hand, the learned counsel for respondent No,3 contends that the petitioner in his written reply has accepted the term of Rented Premises for the brick kiln and has not specifically objected to the jurisdiction of the learned Special Judge on the ground that the Kiln is not included in that term. He cannot raise that objection now; that the unregistered tenancies are saved for two years from the date of coming into force of the Act of 2009 and the non-deposit of fine required to be deposited under section 9 is a rectifiable omission. The respondent, however does not need to rest upon this proposition of law, as he has deposited Rs,15.00/- as fine, as required by law; that the petitioner is a proved wilful defaulter in payment of rent. As per R.W.-2, the rent was agreed to be paid in advance, which he failed do. R.W.-1 states that rent for the year 2009 was deposited in the Court in January, 2010. He lastly argues that the petitioner had stepped into the shoes of the previous tenants. He was not accepted by the respondent but was tolerated only. The forced tenancy could last only for the remaining period that was to end and has ended on 31-12-2008.
4. I have heard the learned counsel for the parties and also gone through the record.
5. The first point to be resolved is whether the eviction petition was maintainable and entertainable by the learned Rent Tribunal, in the absence of a tenancy agreement, as is required under section 5 of the P.R.P. Act, 2009. Under section 8 of the Act ibid, it is the responsibility of the landlord and the tenant both, to bring the tenancy in conformity with the provisions of this Act not later than 2 years from the date of coming into force of this Act. The grace period would end on 16th November, 2011.
This grace period was available to both of them when the application for eviction was made. Even otherwise, if the tenancy does not conform the provisions of this Act, the learned Rent Tribunal is not to entertain an application on behalf of the landlord, unless the landlord deposits a fine equivalent to ten per cent of the annual value of the rent of the premises as a penalty for omitting to bring the tenancy inconformity with the provisions of this Act. What would be the effect, if the application is made without depositing the said fine and it is entertained and adjudicated upon.
Will the whole proceedings be set at naught? That may not be the intention of the Legislature.
Purpose and intent, in the first instance, is to bring the tenancy inconformity with the provisions of this Act. In the second instance, it could be to penalize the defaulters with imposition of fine who could either be the landlord or the tenant. It is beyond the principle of interpretation of Statutes that the legislature intended to un-suit the landlord or the tenant by the above provisions of law. If an applicant who put the law into motion ultimately succeeds, may be asked to pay the required fine even by the executing Court. The second question to be dilated upon is, whether the land measuring 125 kanals having 60 rooms constructed upon it and the Chimni standing thereon could be termed to be a 'building' or the 'rented land' and thus would fall under the term of a rented premises, so as to bring the subject-matter of the instant lease within the jurisdiction of a Rent Tribunal. The learned counsel for the petitioner has referred numerous judgments pronounced by the superior courts of Pakistan and some from the Indian jurisdiction. "AIR 1966 Supremr Court 1998" deals with Zamindari Abolition and Land Reforms Act (I of 1951), wherein the brick kiln factory was excluded from the land going to be subjected to the Land Reforms. In 1996 Cr.L.J. 288 the question, whether the brick kiln is a 'factory' within the meaning of the Indian Factories Act (LXIII of 1948) was under discussion. The workers present in the premises of the Factory were held to be governed by the said Act. These two judgments are not applicable in the circumstances of this case. The ratio of the said judgments renders little help to resolve the issue in the present lis. In the judgment reported as "AIR 1965 Supreme Court 716", the dominant intention was dilated upon. The landlord therein rented a running "Dal Factory". The question was whether the building standing thereupon would be termed as a building under Madhya Pradesh Accommodation Control Act (23 of 1955). It was held that the factory was not a building and therefore was outside the purview of'the Act. The Court was said to ask itself, as to what was the dominant intention of the parties in executing the document. It was further held that dominant intention of the lessee in accepting the building on lease was as "Dal Factory". Some of the terms occurring in the Punjab Rent Restrictions Ordinance, 1959 and the P.R.P Act, 2009 deserve the appreciation. The Ordinance of 1959 applied to the urban arrears only. The subjects of the Ordinance were the urban area, the building which was further classified as none residential building, residential building and scheduled building and rented land.
The PRP Act, 2009 has the rented premises which is further divided into, building and the rented land, as its subjects. The rented premises means any land or an open space. The statement of the landlord as A.W.-1 suffices to come to a conclusion that the land was leased for the purpose of running a brick kiln. Both the parties understood the said purpose of the lease. It was leased for the same purpose to Siddique etc., the previous tenants. Some extracts from the statement made by him need to be reproduced, as below:-{{URDU TEXT}} ' Para 2 of the eviction applications reads that in the year 1990 on the request of the tenant, the predecessor of the landlord constructed 60 rooms and rented the said construction and land measuring 125 kanals to the petitioner. The averments made in the said paragraph and the statement made by A.W.-1 suffices to ascertain that the dominant intention of the parties was leasing the property for the purpose of running a brick kiln. The rooms constructed thereupon were nothing else but the quarters for the workers. No other material or evidence is required to determine the dominant intention of the parties. The next question is, whether in view of the judgment cited as "AIR 1965 Supreme Court 716" the brick kiln is a factory or a rented premises.
Although the 60 rooms constructed thereon hint that it is a building yet the dominant character of the whole complex matter is still to be determined, whether the brick kiln could be termed as a 'factory' or it falls within the definition of 'land' rented out for the purpose of trade or business. In the Concise Oxford English Dictionary a 'factory' is defined as follows:--- "a building or buildings where goods are manufactured or assembled chiefly by machine."
' In the same dictionary the word 'trade' is defined as follows:--- "the buying and selling of goods and service." ' a brick kiln, the clay brick is molded, baked and then put to sale. The sale of the bricks is done at the kiln in two ways. In a bargain between the owner of the kiln and the middle man or the owner and the ultimate consumer. There is no doubt that the place where the trade and business of buying and selling of bricks is done on the rented land. It falls within the definition of rented land as given in the P.R.P. Act, 2009. The molding and baking of bricks cannot be said to be the production of the goods in a factory primarily through the machines. The place where the business and trade takes place is included in the definition for the 'rented land' in P.R.P. Act, 2009. The brick kiln, even if, is taken to be a factory, the latter has not been excluded from the subject-matter of the Act. Where the Legislature so intends, as is in the case of 'Building' some of the buildings by virtue of their specific use have been excluded from the definition, given in section 2(a) of the P.R.P. Act, 2009.
While interpreting a matter related to the jurisdiction of a Tribunal or a Court, the approach towards the extended jurisdiction has to be adopted. I am obliged to hold that the learned Rent Tribunal had the jurisdiction to adjudicate upon the application. The question of default is to be taken now. The statement of R.W.-2 proves the fad that the rent was agreed to be paid in advance and that from the year 1990 till the year 2000, the petitioner had been paying the same in advance.
As per the statement made by R.W.-1, the rent for the year 2009 was deposited in the Court in January, 2010. The payment made a year after it was due, cannot be termed anything but wilful default in payment of the rent. It was held in the judgment "2010 SCMR 1071" referred by the learned counsel for the petitioner, that the default of 2 or 3 days is not to- be taken as a willful default and that landlord there was absent from the country and was not available to receive the rent. In the judgment cited as "1987 SCMR 1313", the landlord was deliberately creating difficulties in payment of the rent. In the judgment cited as "PLD 1992 Karachi 307", the tenant made all sorts of efforts to make the payment but failed and thus the default was not held to be wilful. The said judgments render little support to the case in hand. I am constrained to hold that the petitioner has incurred wilful default in payment of the rent.
6. The agreement in favour of the previous tenant was to expire on 31st December, 2008. The petitioner had only stepped into the shoes of the first tenant. The reduction in the leased area by 25 kanals but maintaining the previous quantum of rent shows that it could only be an adjustment to bring the ever increasing rate of rent in compatibility with the size of the leased land. The petitioner has been unable to prove that he had entered into a new lease agreement with the respondent for the same term that was to start running afresh. The petition cannot be termed to be premature.
7. For the reasons given above, the petition is held to be sans the merits. The interference by this Court in its constitutional jurisdiction is not called for. This petition is dismissed.