' SHUJAAT ALI KHAN, J.--- By means of this writ petition the petitioner has called in question the vices of orders dated 17-4-2010 passed by the learned Special Judge (Rent) Khanpur (respondent No,2) whereby he accepted the ejectment petition filed by respondent No,3 and order dated 4-4- 2011 passed by the learned Additional District Judge, Khanpur, by virtue of which he dismissed the appeal filed by the appellant against order dated 17-4-2010.
2. Succinctly, the facts, forming factual canvass of the instant petition, are that Shop No,6, details whereof have been given in the ejectment petition, was rented out by father of respondent No,3 to the petitioner. After death of the father of respondent No,3 the petitioner had been paying rent to respondent No,3 till January, 2010 and thereafter he defaulted in payment thereof. Respondent No,3 filed ejectment petition against the petitioner. The petitioner submitted application for Leave to Contest in the shape of written reply. Vide order dated 17-4-2010, respondent No,2, while dismissing the application for Leave to Contest, accepted the ejectment petition filed by respondent No,3.
Aggrieved by the said order, the petitioner filed an appeal before respondent No,1, who vide order dated 4-4-2011 dismissed the same; hence this petition.
3. The arguments put forwarded by the learned counsel for the petitioner can be summarized in the words that though the petitioner in his application for leave to contest raised certain legal as well as factual objections which required recording of evidence but respondent No,2 illegally refused to grant leave to contest; that both the courts below omitted to note that the Tenancy Agreement between the parties was not in consonance with the provisions of the Punjab Rented Premises Act, 2009 (hereinafter to be referred as the Act) the learned Special Judge (Rent) was not obliged to entertain the ejectment petition without deposit of 10% of the annual rent by the landlord as fine; that both the forums below failed to appreciate that the ejectment petition was not maintainable being violative of provisions of sections 5, 8 and 9 of the Act; that though respondent No,3 was bound to bring the Tenancy Agreement in conformity with the provisions of the Act within two years after promulgation of the same but till to date the petitioner has not done so and that the petitioner has been knocked out on the basis of technicalities. In addition to his oral submissions, learned counsel, in support of his version, has referred to the cases reported as, "Muhammad Usman and another v. Additional District Judge and 2 others" (PLD 2010 Lahore 281) and "Messrs Wateen Telecom Pvt. Ltd. v. Malik Abdul Ahad and 2 others" (PLD 2009 Lahore 429).
' At the same time learned counsel for the petitioner, while showing complete professional attitude has also quoted the cases of "Shaukat Mehmood v. Prof. Muhammad Yaseen and others" (2011 CLC 832) "Muhammad Zaman v. Akram Hussain and others" (2011 CLC 755), "Majid Khan and 2 others v.
Mst. Naseem Bibi and 9 others" (PLD 2010 Lahore 389) and Muhammad Asad Malik v. Rent Controller, Bahawalpur and others (2012 CLC 888) which run contrary to the stance' of the petitioner.
4. On the other hand, learned counsel appearing on behalf of respondent No,3, while defending the impugned orders, contends that since two years grace period was given to the parties to bring the existing Tenancy Agreements in conformity with the provisions of the Act, the penal provision of deposit of 10% of the annual rent was not attracted in the instant case as the ejectment petition was not only filed but also was decided prior to the expiry of two years; that the petitioner himself admitted the default in payment of rent, therefore, respondent No,2 rightly dismissed the application for leave to contest; that the uncalled for conduct of the petitioner is manifest from the fact that the petitioner did not comply with the orders passed by the courts below regarding eviction of the premises; that though the petitioner deposited the monthly rent after one year and four months Pursuant to the order passed by this court but he did not pay the full amount; that according to section 20 of the Act, the petitioner could move an application before respondent No,2 for deposit of the rent in the court on the ground that respondent No,3 refused to receive the monthly rent of February, 2010 but he did not resort to said proceedings and that both the courts have passed the impugned orders totally in line with the law on the subject. To substantiate his contentions, the learned counsel, in addition to relying on the cases of Muhammad Asad Malik, Majid Khan and 2 others and Muhammad Zaman (supra), has referred to the cases of "Malik. Abdul Aziz Awan and another v. Rana Maqbool Ahmad Khan" (2012 SCMR 91) and "Ahmad Hussain Butt v.
Robina and 2 others" (2010 CLC 1115).
5. I have given ardent hearing to the arguments advanced by learned counsel for the parties and have also gone through the documents appended with this appeal in addition to going through the case-law cited at the bar as well the relevant provisions of law.
6. The Act was promulgated on 7th November, 2009. While describing procedure for creation of new tenancy under section 5 of the Act, the parties were directed to bring their existing tenancy in conformity with the provisions of the Act by virtue of section. 8 of the Act which reads as follows:-- "Existing tenancy.--- An existing landlord and tenant shall, as soon as possible but not later than two years from the date of coining into force of this Act, bring the tenancy in conformity with the provisions of this Act."
' A bare perusal of the afore-quoted section makes it clear that though the parties were directed to bring the existing tenancy in conformity with the provisions of the Act as early as possible but at the same time they were granted the grace period of two years for the purpose. In this way the cut off date of two years was to expire on 17th of November, 2011. Further, an ejectment petition cannot be dismissed on the ground that the tenancy was not in conformity with the provisions of the Act.
Reliance in this regard is placed on the case of Muhammad Zaman (supra) wherein it was held that: - "The contention that without registration of the rent deed under section 5 of the Punjab Rented Premises Act, 2009, the ejectment petition was not competent has no force as a period of two years was granted to the landlords and tenants of the existing tenancies to bring the same in conformity with the provisions of this Act. Similar provision was available in the Punjab Rent Premises Ordinance, 2007 also so the landlord/respondent cannot be non- suited on the ground that the rent note was not got registered with the Rent Registrar".
The ejectment petition in the instant matter was filed by respondent No,3 on 10-3-2010 and the same was decided on 17-4-2010, much prior to the expiry of the grace period. In this view of the matter, the objection raised by learned counsel for the petitioner that as respondent No,3 did not bring the tenancy in conformity with the provisions of the Act, he B was not obliged to file ejectment petition is hereby spurned.
7. Now coming to the most pivotal point involved in the instant matter that as to whether respondent No,2 could entertain the ejectment petition without deposit of 10% of the annual rent by respondent No,3, I am of the view that before delving deep into the question a perusal of the relevant provision (section 9 of the Act) would be conducive which for convenience of reference is reproduced herein below:--- "9. Effect of non-compliance.--- If a tenancy does not conform to the provisions of this Act, the Rent Tribunal shall not entertain an application under this Act:---
(a) on behalf of the tenant, unless he deposits a fine equivalent to five per cent of the annual value of the rent of the premises in the Government treasury; and
(b) on behalf of the landlord, unless he deposits a fine equivalent to ten per cent of the annual value of the rent of the premises in the - Government treasury."
' As per clause (b) of the afore-quoted section the learned Rent Tribunal is not obliged to entertain an ejectment petition without deposit of the 10% of the annual rent by the landlord where the tenancy is not in conformity with the provisions of the Act. In the initial days after the promulgation of the Act while interpreting the said provision, in the cases of Muhammad Usman and another and Messrs Wateen Telecom Pvt. Ltd. (supra) it was held that non-deposit of 10% of the annual rent by the landlord at the time of filing an ejectment petition wherein the tenancy was not in conformity with the provisions of the Act, was fatal. However, in the recent judgments, the said view has been distinguished e.g. In the case of Shahid Mustafa v. Munir Ahmad and others (2010 YLR 34) this court while relying on the case reported as PLD 1984 SC 289 inter alia held as follows:--- "The court after having case on its file is to pass such order which if not complied with, then court lacks jurisdiction and ejectment petitions are not entertainable. In case in hand, this irregularity committed by Rent Tribunal was cured by appellate court by ordering compliance of requirement of section 9(b) of the Act (ibid). It is never intention of law to non-suit a part) without affording it reasonable opportunity to comply with relevant provision of law. In this connection guidelines have been provided in the judgment of Apex Court reported as (PLD 1984 Supreme Court 289) wherein it was held that a plaint cannot be rejected on the ground of non-fixation of court fee unless a court determines amount of court fee and directs a plaintiff to affix same on a plaint by certain date and then to reject plaint in case of non-compliance of direction. In the judgment, earlier judgment given in Walayat Khatoon's case, was over-ruled whereby plaint was held to be not entertainable if deficiency in court fee is not made up by the plaintiff This ratio was adopted by this court in the case of Muhammad Faiz and another v. Ch. Yaqoab Hussain and others (PLD 2010 Lahore 197). In this situation, learned court did not commit any illegality in remanding the cases rather has advanced cause of justice in its true spirit."
' Further, in the case of Muhammad Asad Malik (supra) this court has laid law to the following effect:- "As the provision is directory in nature, therefore, keeping in view principles as laid down by this Court and august Supreme Court of Pakistan for deposit of court-fee it is fundamental duty of the Court first to determine the amount, and give chance to deposit the same within specified period.
The Special Rent Tribunal has not ordered for deposit of the same. Therefore, no one can be punished for act of the Court. Even otherwise, deposit of fine is a matter between the ejectment petitioners and the State and the writ petitioner cannot take benefit of noncompliance of this provision of law. Since respondents Nos. 3 and 4 have claimed rent at the rate of Rs,5,000/- per month, therefore, in order to comply with the provision of section 9 of aforementioned Act, they are directed to deposit Rs,6,000/- before the Special Rent Tribunal till 30-11-2011".
After going through the afore-quoted judgments I humbly venture to agree with the view that ejectment petition cannot be dismissed on the sole ground that the amount of fine was not deposited by the landlord C rather the same can be cured even at appellate stage. Further, payment of fine is a matter between party concerned and State and the opponent cannot take any benefit in this regard.
8. Even otherwise, according to section 9, it is duty of the Rent Tribunal to see as to whether the 10% of the annual rent as fine was deposited or not and if the court does not give any finding in that regard, D the party concerned cannot be made to suffer subsequently due to the act of the court.
Reliance in this regard is placed on the case reported as Ladha Khan and others v. Mst. Bhiranwan (2001 SCMR 533) wherein the august Supreme Court of Pakistan has inter alia held as follows:--- "There is another important aspect which gives strength to the case of the respondent as it is an established, principle of law that an act of the Court shall prejudice no man. Reliance in this respect is placed upon the case Mian Ijaz lqbal and others v. Faisalabad Chamber of Commerce and another (PLD 1983 Lahore I) wherein following observation has been made:--- "Suffice it to say, that the maxim enshrined in actus curiae neminem gravabit (an act of Court shall prejudice no man) is applicable to judicial or quasi-judicial tribunals including the organizations which are required to perform any statutory duty. Reference may be made to Mian Irshad Ali v.
Government of Pakistan through Secretary, Ministry of Rehabilitation, Islamabad and 13 others (PLD 1975 Lahore 7)."
Likewise, in the case of Ghulam Hassan v. Jamshaid Ali and others (2001 SCMR 1001) the august Supreme Court of Pakistan has inter alia held as under:--- "The maxim "Actus curiae neminem gravabit" (an act of the Court shall prejudice no man) as already stated is now fully engrained in our system of administration of justice. This principle was considered by this Court in the case of Rashad Ehsan and others v. Bashir Ahmad and another (PLD 1989 SC 146) in the following words:--- "....The maxim 'Actus curiae neminem gravabit' comes into play, with a view to obviate hardships and which may otherwise be the result of the errors of the Court itself. Thus, where a noncompliance with the mandatory provisions of a law occurs by complying with the direction of the Court, which is not in conformity with the law, the party complying therewith is not to be penalised. Indeed, the law becomes flexible to absorb such abnormalities and treat the infractions as harmless. Where the directions issued while administering the law have been followed but it is found that the authority itself had acted in deviation of the law in some particulars, the party acting in accordance with such directions is not held to be blameworthy."
' In the case of The State v. Asif Adil and others (1997 SCMR 209) it has been held that it is a well- settled proposition of law that a party should not be made to suffer on account of an act/omission on the part of Court or other State functionaries. In this regard, reference may be made to the case of Muhammad Hanif and others v. Muhammad and others (PLD 1990 SC 859), the case of Fateh Khan v. Boze Mir (PLD 1991 SC 782), the case of Abdul Rashid v. Abdul Salam and others (1991 SCMR 2012).
' Reference is also made to the case of Muhammad Afsar v. Mst. Munawar Jan (PLD 1961 (W. P.)
Lahore 199), the case of Central Exchange Bank Ltd. v. Ch. Dilawar Ali Khan and others (PLD 1965 (W.
P.) Lahore 628), the case of Mian Ijaz Iqbal and others v. Faisalabad Chamber of Commerce and another (PLD 1983 Lahore 1), the case of Hafiz Muhammad Ahsan v. The State (1937 PCr.LJ 2434), the case of Ghulam Haider and others v. Mst. Raj Bharri and others (PLD 1988 SC 20), the case of Muhammad Ramzan and another v: Haji Karim Bakhsh and 5 others (1988 CLC 448), the case of Iqbal Ahmad v. Industrial Development Bank of Pakistan and 3 others (1989 CLC 1365), the case of Abdul Rashid v. Abdul Salam and others (1991 SCMR 2012), the case of Naseer Ahmed v. District Judge, Multan and 4 others (PLD 1992 Lahore 92) and the case of Ifkhar Baig v. Muhammad Azam and others (1996 SCMR 762)."
9. Now coming to the petitioner's contention that in view of the objections raised by the learned counsel for the petitioner that it was incumbent upon respondent No,2 to accept the application for leave to contest and then decide the petition after framing necessary issues I am of the view that it is not necessary to frame issues specially when default has been proved on the part of the tenant in payment of rent. Reliance in this regard is placed on the case of Malik Abdul Aziz Awan and another (supra) wherein the apex court of the country has held as follows:--- "* The submission that the Rent Controller should have framed the issues, also has no force, because it is not required under the law that issues must necessarily be framed in all the cases, rather, the trial of the matter would be proceeded only when the tenant successfully cross the stage of leave...."
Further, it was held by the apex court of the country in the case of "Ahmad Ali alias Ali Ahmad v.
Nasar-ud-Din and another" (PLD 2009 SC 453) that when a tenant defaults in payment of rent he is liable to be evicted. In this case the default on the part of the petitioner in payment IF of rent is admitted in his application for Leave to Contest.
10. Insofar as the contention of learned counsel for respondent No,3 that since the ejectment petition was filed prior to the expiry of grace period of two years, the condition of deposit of 10% of the annual rent as fine was not operative is concerned, I do not find myself in agreement G with the learned counsel on this point 'for the reason that in section 9 it has nowhere been mentioned that the said penal clause would come into force if the ejectment petition is filed on the basis of a tenancy which is not in conformity with the provisions of the Act after expiry of grace period of two years rather a plain reading of section 9 brings it to light that in every matter irrespective of the fact whether the grace period has expired or not, if the tenancy in conformity with the provisions of the Act, while filing ejectment petition by the landlord he has to pay 10% of the annual rent as fine. I humbly venture to differ with the view taken on this point in the case of Muhammad Zaman (supra).
11. Moreover, concurrent findings of facts recorded by the courts below cannot be upset in writ jurisdiction until and unless they are proved to be the result of misreading and non-reading of evidence or the same is perverse. Reliance in this behalf is placed on the case reported as Shajar Islam v. Muhammad Siddique and 2 others (PLD 2007 SC 45) wherein their lordships the Hon'ble Judges of the Supreme Court has laid down the law to the following effect:--- "* The learned counsel for the respondent has not been able to point out any legal or factual infirmity in the concurrent finding on the above question of fact to justify the interference of the High Court in the writ jurisdiction and this is settled law that the High Court in exercise of its constitutional jurisdiction is not supposed to interfere in the findings on the controversial question of facts based on evidence even if such finding is erroneous. The scope of the judicial review of the High Court under Article 199 of the Constitution in such cases, is limited to the extent of misreading or non-reading of evidence for if the finding is based on no evidence which may cause miscarriage of justice but it is not proper for the High Court to disturb the finding of fact through reappraisal of evidence in writ jurisdiction or exercise this jurisdiction as a substitute of revision or appeal."
' In sequel to above discussion, we are of the considered view that the interference of the High Court in the concurrent finding of the two Courts regarding the existence of relationship of landlord and tenant between the parties was beyond the scope of its jurisdiction under Article 199 of the Constitution and consequently, we convert this petition into an appeal, set aside the judgment of the High Court and allowthe appeal with no order as to costs."
' Further, in the case of Farhat Jabeen v. Muhammad Safdar and others (2011 SCMR 1073) wherein the august Supreme Court of Pakistan had declared as under:--- "Heard. From the impugned judgment of the learned High Court, it is eminently clear that the evidence of the respondent side was only considered and was made the basis of setting aside the concurrent finding' of facts recorded by the two courts of , fact; whereas the evidence of the appellant was not adverted to at all, touched upon or taken into account, this is a serious illegality committed by the High Court because it is settled rule by now that interference in the findings of facts concurrently arrived at by the courts, should not be lightly made, merely for the reason that another conclusion shall be possibly drawn, on the reappraisal of the evidence; rather interference is restricted to the cases of misreading and non- reading of material evidence which has bearing on the fate of the case."
12. Even otherwise, it is well-entrenched by now that a person who is seeking equitable relief should show his bona fide first. Insofar as the case in hand is concerned, the petitioner has not complied with the orders passed by the lower Appellate Court whereby he was directed to vacate the premises within one month meaning thereby that he was bound to hand over the possession to respondent No,3 by 4-5-2011 which he did not. As far as the injunctive order granted by this court is concerned, as the same was granted on 9-5-2011 the same was not a ground for the petitioner to refuse vacation of the premises.
13. As a sequel to the discussion made in the fore-going paragraphs, have no doubt in my mind to hold that the petitioner failed to point out any material illegality in the impugned orders justifying interference by this Court in its constitutional jurisdiction. Resultantly, instant petition is dismissed with a direction to petitioner to immediately vacate the premises. Respondent No,3 shall deposit 10% of the annual rent with respondent No,2 within a week from the receipt of certified copy of this order. In case of default, his ejectment petition shall stand dismissed. . Parties are left to bear their own costs.