IJAZ-UL-AHSAN, J. --- This petition arises out of order dated 14.04.2010 passed by the learned Rent Tribunal, Lahore, which was upheld in appeal by a learned Additional District Judge, Lahore, vide order dated 04.12.2010. Through the impugned orders an ejectment petition filed by respondent No. 1 was allowed.
2. The petitioner, which is a transport company, took on lease, a piece of land measuring 5-kanals out of which 4-kanals is vacant and 1-kanal is covered by a structure. It is situated at 218-Ferozpur Road, Lahore. The lease agreement in this regard was executed on 16.01.2001 for a period of three years which expired on 15.04.2004. Rent was to be paid at the rate of Rs. 50,000/- per month. On expiry of the lease the petitioner sought extension of the same. Admittedly the same was refused by respondent No. 1. The petitioner continued to occupy the leased property. However, it enhanced the rate of rent to Rs. 75,000/- per month presumably to meet the requirements of the Punjab Urban Rent Restriction Ordinance, 1959 (now repealed) which envisaged automatic enhancement of rent by 25% after every three years. Currently the petitioner claims to be paying rent at the rate of Rs. 91,000/- per month.
3. The respondent had earlier filed an ejectment petition against the petitioner. The same was allowed vide order dated 15.09.2005. The appeal filed against, the said order was dismissed by the learned Appellate Court vide order dated 13.03.2006. A second appeal . (SAO No. 540/2006) is presently pending before this Court.
4. It appears that in view of promulgation of the Punjab Rented Premises Ordinance (PRPO) which was subsequently replaced by the Punjab Rented Premises Act, 2009 (PRPA) the respondent filed a fresh ejectment petition. The main ground taken in the said petition was that the period of tenancy had expired and the petitioner was liable to be evicted. The petitioner filed an application under Section 22 of the PRPO for leave to contest the ejectment petition. The grounds taken in the application for leave to contest were that there was an "understanding of perpetuity", the lease deed was to be renewed every three years, which was refused by the respondent and that the petitioner had been paying rent which had been accepted by the respondent. He was therefore estopped from seeking eviction. It is significant to note that the petitioner neither filed any documents nor affidavits of witnesses (as required under Section 22(3) of PRPO) to substantiate his defence. The learned Rent Tribunal refused leave to contest and Wallowed the petition vide order dated 14.04.2010. The order of the Tribunal was upheld in appeal.
5. The learned counsel for the petitioner submits that according to the admission of the respondent made in its ejectment petition, the petitioner was a lessee by holding over. He submits that admittedly, the lease agreement had expired in 2004, however, the same was continued and rent was increased from time to time. He, therefore, submits that in terms of Section 106 of the Transfer of Property Act, fifteen days' notice was a pre-condition for ejectment of the tenant. Such notice was not given. He maintains that the learned subordinate Courts passed the impugned order in oblivion of non-fulfilment of the aforesaid condition precedent and admissions made by the respondent in its ejectment petition. Consequently, the impugned orders are not sustainable. In support of this contention, he placed reliance on Mrs. Batool v. Shahzad (PLJ 2002 Karachi 80).
6. On being asked whether the plea of tenancy by holding over was raised earlier before the learned Rent Tribunal or the Appellate Court, the learned counsel has frankly conceded that it was hot. He further submits that despite the fact that this objection was not raised before the subordinate forums, there is no restriction against such objection being raised at this stage. To support his contention, he relies on Ch. Altaf Hussain and others v. Chief Settlement Commissioner, Pakistan and others 1965 SC 69); Khan Azizul Hassan Khan v. Haji M. Ismail (PLD 1972 Lahore 142) and Samar and others v. Muhammad Younis (PLD 1972 Peshawar 115). Finally, relying on Muhammad Usman and another v. Additional District Judge, Lahore and others (PLD 2010 Lahore 437), the learned counsel argues that the lease was required to be registered in terms of Section 5 of the Punjab Rented Premises Act. The said defect could not have been cured by imposing a penalty under Section 9 of the said law.
7. The learned counsel for the respondent has defended the orders of the subordinate forums. He submits that Section 22(3) of the PRPA requires an application for leave to appear and contest the petition to be filed within 10 days alongwith all documents that the applicant relies on, and affidavits of the applicant as well as two witnesses. The learned counsel points out that neither any documents were filed by the petitioner nor were affidavits of the witnesses submitted. The learned counsel maintains that the fact of tenancy stands admitted in the application for leave to appear and defend filed by the petitioner. It is also pointed out that while admitting the tenancy, the petitioner also stated that an effort was made to seek renewal/extension of the tenancy but the respondent refused to do so. Referring to the fact that the respondent had accepted enhancement of rent, it is pointed out that under the Punjab Urban Rent Restriction Ordinance, 1959, provided for automatic enhancement of rent at the rate of 25% after every three years. He, therefore, submits that payment of enhanced rent could not be interpreted to mean that the respondent had consented to extension/renewal of the lease.
8. Referring to Section 4 of the PRPA, the learned counsel submits that the said Section clearly indicates that the provisions of. PRPA override other laws which includes Transfer of Property Act. He argues that Section 8 of the Act deals with existing tenancies and provides a period of two years from the date of coming into force of the Act to bring these in conformity with the provisions of the Act He maintains that in terms of Section 9, if a tenancy does not conform the provisions of PRPA, the Rent Tribunal is nevertheless empowered to entertain an ejectment petition on payment of a penalty. He points out that such penalty was paid by the respondent, who was entitled to approach the learned Rent Tribunal to seek ejectment of the petitioner.
8. I have heard the learned counsels for the parties and gone through the record with their assistance.
9. The main questions requiring determination by this Court are as follows:--
(a) Whether on expiry of the original tenancy, the same automatically stood converted into a lease by holding over in terms of Section 106 of the Transfer of Property Act?
(b) Whether the provisions of the Transfer of Property Act are attracted in the facts and circumstances of the present case in view of the provisions of Section 4 of the Punjab Rented Premises Act?
(c) Whether a fresh petition was barred in view of an earlier petition filed by the respondent which had succeeded?
(d) Whether fifteen days' notice as envisaged in Section 106 of the Transfer of Property Act was required for filing the ejectment petition?
(e) Whether Section 15(a) of the Punjab Rented Premises Act was not attracted in view of the fact that the tenancy stood converted into a lease by holding over?
(f) Whether the respondent was required to register the lease deed in terms of Section 8 of the Punjab Rented Premises Act?
10. The fact of tenancy and relationship of landlord and tenant was admitted by the petitioner in his application under Section 22 of the PRPA for leave to contest the petition. The fact that the lease had expired was not denied either. The only defence taken was that there was allegedly an "understanding of perpetuity in the tenancy" and that the petitioner had been paying the rent amount continuously according to the lease agreement. It is, however, noticed that the petitioner neither filed any document nor affidavits of any witnesses in terms of Section 22(3) of the PRPA in order to substantiate his claim of an "understanding. Of perpetuity". Further, it was categorically admitted that the rent deed had expired and the respondent had refused to extend the same. The fact that the petitioner had been paying rent even after expiry of the lease agreement despite refusal by the respondent to renew the lease did not, in my view, mean that the respondent had either expressly or by implication extended the lease or acquiesced in the continued occupation of the leased property by the petitioner. Likewise, payment of rent at an enhanced rate did not create any rights in favour of the petitioner. In any event, the rate of rent was presumably enhanced in order to meet the statutory requirements of enhancement as envisaged by the Punjab Urban Rent Restriction Ordinance, 1959. Reference in this regard may usefully be made to Muhammad Yousuf v. Abdullah (PLD 1980 S.C. 298),
11. The intention of the respondent not to extend the lease further is also evident from the fact that he filed an ejectment petition on the basis of grounds under the then prevailing law. The said petition was allowed' on 15.9.2005, the appeal filed by the petitioner failed and a second appeal bearing SAO No. 540/2006 is presently pending before this Court. It may be pointed out that vide order dated 8.4.2010 this Court observed that the earlier ejectment petition was based on personal need and default. However, if a new ejectment petition had been filed which was based on different grounds, it could not be stayed on account of pendency of the appeal. Even otherwise, it is settled law that during pendency of appeal against an earlier order, of ejectment, a fresh ejectment application on fresh grounds is not barred. In holding this view I am fortified by Mushtaq Mirza and others v. Haji Rashiduddin and two others (1971 SCMR 60) and Pakistan International Airlines Corporation v. Mrs. Safooran Khanum (1981 CLC 1636).
12. As far as the applicability of Section 106 of the Transfer of Property Act is concerned, it is noticed that this plea was neither raised before the learned Rent Tribunal nor the learned first Appellate Court. Further, Section 4 of the PRPA provides that the Act would override other laws. The Punjab Rented Premises Act, 2009, is a special law and has been specifically promulgated "to provide a mechanism for settlement of disputes (between landlord and tenant) in an expeditious and cost effective manner. I am, therefore, of the view that the provisions of Section 106 of the Transfer of Property Act are not attracted to the facts and circumstances of the case, especially so where the respondent . Had admittedly refused to extend the tenancy and had taken positive steps for ejectment of the petitioner by way, of filing of ejectment petition which had succeeded. Further, even if for the sake of argument, it was to be admitted that the provisions of Section 106 of the Transfer of Property Act were applicable, the only benefit that the petitioner may have claimed was that the requirement of fifteen days advance notice was not fulfilled by the respondent. However, it has been held that the fact of filing of an ejectment petition in itself constitutes notice and the same will be treated as substantial compliance of requirement of the notice. Reference in this regard may usefully be made to Major (Retd.) Muhammad Yousaf v. Mehraj-ud-Din and others (1986 SCMR 751) and Syed Azhar Imam Rizvi v. Mrs. Salma Khatoon (1985 SCMR 24). Although the said Judgments had been rendered under the West Pakistan Urban Rent Restriction Ordinance, 1959, the principle of law settled in the said Judgments is fully attracted and applicable to the facts and circumstance of the present case. Even otherwise an ejectment order against the petitioner was already in the field and the parties were contesting the same before appellate forums. Therefore, the argument that a notice under Section 106 of the Transfer of Property Act was required, has not impressed me and is repelled for the afore-noted reasons. I therefore hold that the respondent correctly filed the petition on the basis of grounds mentioned in Section 15(a) of PRPA.
13. The argument of the learned counsel for the petitioner that the lease deed was required to be registered and the petitioner was entitled to be granted leave to contest to determine the effect of non-registration of the same, is misconceived. The tenancy was admitted by the petitioner so was expiry of the lease agreement. It was also categorically admitted that despite request being made by the petitioner, the respondent had refused to extend the lease. As such, there was no question of registration of an expired lease agreement. In the facts and circumstances of the case, where the ground for seeking ejectment was expiry of the tenancy, the provisions of Section 9(b) of the PRPA were fully attracted. The learned Rent Controller was, therefore, justified in directing the respondent to deposit a fine equivalent to ten percent of the annual rent of the demised premises in the Government Treasury as a precondition to entertain the ejectment application. It may be pointed out that one of the grounds raised by the petitioner in his application for leave to contest was that such fine had not been paid. Since the fine in question was paid, the learned Rent Tribunal was quite justified and within its powers to entertain the ejectment application and proceed in accordance with law. The learned counsel for the petitioner has relied on Muhammad Usman and another v. Additional District Judge, Lahore and others (PLJ 2010 Lahore 437). I have gone through the said judgment and find that it relates to a different set of facts and circumstances and the principles of law laid down therein cannot be extended to the C.LR. facts and circumstances of the present petition. It is also noticed that there are concurrent findings of fact against the petitioner which cannot lightly be interfered with in exercise of Extraordinary Constitutional Jurisdiction of this Court which is discretionary in nature. The learned counsel for the petitioner has not been able convince me that the learned subordinate forums have passed orders which are beyond their jurisdictional parameters or have failed to exercise jurisdiction vested in them. I find that the learned subordinate Courts have been careful and circumspect in exercising their jurisdiction; the orders passed are well-reasoned and based upon correct application and appreciation the principles of law, and dicta of the superior Courts on the subject.
14. For the aforesaid reasons, I do not find any merit in this petition. It is accordingly dismissed. .