' MUHAMMAD FARRUI(H IRFAN KHAN, J.--- Through the instant petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioner calls in question the validity and legality of order dated 21-1-2014 of the learned Additional District Judge, Lahore, whereby his appeal filed against the order of the learned Special Judge (Rent), Lahore dated 5-3-2013 has been dismissed and he has been directed to hand over vacant possession of the demised premises to the respondents.
2. Brief facts necessary for proper adjudication of the lis in hand are that respondents Nos.3 to 8 filed ejectment petition against the petitioner seeking his eviction frown a portion of Property bearing No,57- R/28, situated at 3/1 Temple Road, Lahore on the ground of default in payment of monthly rent and expiry of tenancy period. The petitioner filed application for leave to contest the ejectment petition. The learned Special Judge (Rent), Lahore, vide order dated 11-11-2010 dismissed the application for leave to contest and ordered eviction of the petitioner from the demised premises within a period of two months. The eviction order was challenged in appeal, which was dismissed by the learned Additional District Judge, Lahore, vide order dated 6-10-2011 with the modification that the finding of the learned Special Judge (Rent) in respect of rate of rent was reversed and determined as Rs,10,000/- per month instead of Rs,20000/-. The petitioner thereafter filed Writ Petition No,23160 of 2011, which was accepted by this Court, vide order dated 30-5-2012, and he was allowed leave to contest. The case was remanded to the learned Special Judge (Rent), Lahore with a direction to proceed with the matter in accordance with law. Against the order of this Court dated 30-5-2012 the respondents filed Civil Petition No,1520-L of 2012, but leave was refused by the Hon'ble Supreme Court of Pakistan, vide order dated 21-12-2012. After remand, the learned Special Judge (Rent), vide order dated 5-12-2012 framed issues and under section 24(2) of the Punjab Rented Premises Act, 2009 ordered the petitioner to pay the future rent of the demised premises 0 Rs,20,000/- per month before 10th of each succeeding month in the Court. The learned Special Judge (Rent) also ordered the petitioner to produce the receipt's of rent paid by him from October, 2009 till the next date otherwise his right of defence would be closed. Thereafter the petitioner was granted six opportunities to deposit the tentative future rent and produce receipts of payment of arrears of rent from October, 2009 as well as to cross-examine the witnesses of the respondents/ejectment petitioners- but he failed to comply with the order of the Rent Tribunal whereupon on 5-3-2013 his right of defence was struck off and the eviction order was passed, directing him to vacate the demised premises within two months. He was also directed to pay as arrears of rent Q Rs,20,000/- per month from October, 2009 and future rent at the same rate till the vacation of the demised premises to the respondents. Eviction order dated 5-3-2013 was challenged in appeal. The learned lower appellate Court, vide order dated 21-1-2014 dismissed petitioner's appeal. Hence, the instant writ petition.
3. Learned counsel for the petitioner contends that both the courts below have passed the impugned orders in violation of the orders passed by this Court as well as the Hon'ble Supreme Court of Pakistan. He further contends that while passing the impugned orders both the courts below have not only misread the record but also misconstrued the findings of this Court, in Writ Petition No,23160 of 2011 and that of the Hon'ble Supreme Court of Pakistan in C.P.No,1520-L of 2012.
He submits that the controversy between the parties qua the rate of rent was finally determined by the lower appellate Court in the first round of litigation, which was. Never challenged by .The respondents and as such the same attained finality. He further submits that as the lower appellate Court in the first round of litigation had determined the rate of rent as Rs,10,000/- per month the learned Special Judge (Rent), in the second round of litigation was not justified in directing the petitioner to deposit arrears of rent and future rent @ Rs,20,000/- per .Month by passing the impugned order dated 5-12-2012. He argued that the impugned order dated 5-12-2012 being totally against the facts and law was illegal and defective, as such the petitioner was not bound to comply with the same. Reliance in this regard was placed on the case of Khair Muhammad Nizamani v. Abdul Qauddus (PLD 1965 (W.P.) Karachi 367). He added that both the impugned orders are result of misapplication of judicious mind. He lastly submitted that the impugned order dated 5-12-2012 was passed without any lawful authority, therefore, due to non-compliance of the same final order dated 5-3-2013 of the petitioner's eviction could not be passed on the settled principle o law that when basic order is without lawful authority, then the whole superstructure raised thereon would fall on the ground automatically. Reliance was placed on the case of Muhammad Tariq Khan v. Khawaja Muhammad Jawad Asami and others (2007 SCM R 818).
4. Arguments heard. Record perused.
5. The whole case of the learned counsel for the petitioner revolves around what he considers to be a final determination of the rent made by the lower appellate Court in the earlier round of litigation to be Rs,10,000/- per month.
6. Although in his written statement the petitioner has claimed to have entered into an oral agreement to sell qua the property in dispute with the deceased father of the respondents but this stance was later on abandoned by him and was not even pleaded in this petition. However, relationship of landlord and tenant between the parties is admitted, therefore, the only dispute before the learned Rent Tribunal was qua the rate of monthly rent and period of default. After remand, on 5-12-2012 the learned Special Judge (Rent), Lahore framed necessary issues and under section 24(1) of the Punjab Rented Premises Act, 2009 ordered the petitioner to pay tentative future rent @ Rs,20,000/- per month before 10th of each succeeding month. He was also ordered to produce the receipts of rent paid by him from October, 2009 till the next date of hearing. The aforesaid order contained a specific penal action that in case of non-compliance of the aforesaid direction petitioner's right of defence shall be closed and the case was also fixed- for evidence of the petitioner for 18-12-2012. The petitioner neither complied with the order dated 5-12-2012 regarding payment of tentative rent nor cross-examined the respondents' witnesses despite availing sufficient opportunities in this regard. I see no force in the argument of the learned ',counsel for the petitioner that the order passed by the learned Rent Tribunal in respect of payment of tentative rent c Rs,20,000/- per month was without authority and void and its non-compliance did not entail any penal action as the rate of rent was conclusively decided as Rs,10,000/- per month in the earlier round of litigation. The stance of the petitioner proceeds on fallacious assumption that in the first round of litigation the learned Additional District Judge had determined the rate of rent as Rs, I0,000/- per month, which was maintained upto the level of Hon'ble Supreme Court of Pakistan. The record reveals that in the first round of litigation this Court while deciding W.P.No,23160 of 2011, set aside the whole order of the learned lower appellate Court dated 6-10-2011, while granting leave to contest to the petitioner and directed the learned Rent Tribunal to proceed in the matter in accordance with law.
7. Relevant portion of order of this Court in case ibid is reproduced hereinbelow:--- "8. By accepting this petition, the orders impugned herein are set-aside. The petition for leave to contest moved by the petitioner/ tenant is allowed and the learned Special Judge (Rent) is directed to proceed with the matter in accordance with law.
9 .Needless to mention here that in view of section 27 of the Punjab Rented Premises Act, 2009 the Special Judge (Rent) is bound to decide finally the ejectment petition within a period of four months and it is expected that within such stipulated period the ejectment petition will be decided finally."
' The Hon'ble Supreme Court while refusing leave to appeal to the respondents Nos.3 to 8 against the said order observed as follows:--- "We have heard the learned counsel for the parties and find that there are certain aspects of the matter, particularly with regard to the payment of rent in issue, which cannot be resolved till the parties to adduce their evidence. We do not find any illegality in the impugned judgment warranting interference. Petition is dismissed. Leave refused."
' This clearly had the effect of vitiating the finding regarding the rent being Rs,10,000/- per month.
Therefore, the argument that the finding recorded in the order dated 6-10-2011 qua rate of rent of Rs,10,000/- by the learned Additional District Judge, was upheld at the level of Hon'ble Supreme Court of Pakistan is totally misconceived. The file of W.P.No,23160 of 2011 was requisitioned by this Court. The order of the Rent Controller reflects that the tenant in July and August, 2009 himself deposited the rent at the rate of Rs,20,000/- per month but subsequently shifted back to Rs,10,000/- per month for some inexplicable reasons. In the appeal filed by the tenant no specific ground was taken by him as to the rent being Rs,10,000/- per month. The appellate Court, however, ordered eviction on the ground of expiry of tenancy and default which according to the lower appellate court was @ Rs,10,000/- per month. This judgment as mentioned above was struck done, relegating the parties to face trial in accordance with law.
8. After remand the learned Rent Tribunal proceeded in accordance with law and passed a lawful order under section 24(1) of the Punjab Rented Premises Act, 2009 for payment of tentative future rent at the rate of Rs,20,000/- per month and also required production of receipts of payment of arrears of rent. It was mandatory for the petitioner to comply with the order about the payment of tentative rent fixed by the learned Rent Tribunal as non-compliance thereof entailed penal consequence as contained in subsection (4) of section 24 of the Act ibid. As the petitioner did not comply with the order of deposit of tentative rent the learned Rent Tribunal rightly closed his defence in accordance with the mandate of law as envisaged in subsection (4) of section 24 of the Act and passed the final eviction order dated 5-3-2013 which does not suffer from any jurisdictional defect. Reliance in this regard is placed on the case of Safeer Travels (Pvt.) Ltd. v.
Muhammad Khalid Shafi (PLD 2007 SC 504).
9. No doubt this Court had allowed leave to the petitioner to contest and required adjudication of the Matter on merits by recording of evidence but it does not mean that the petitioner was given exemption from complying with the mandatory provisions of law. After grant of leave to contest by this Court the case was remanded by this Court to the learned Rent Tribunal for proceeding with the same in accordance with law. Even otherwise the dispute was regarding quantum of monthly rent and default in payment thereof, therefore, in order to adjudicate thereupon the learned Rent Tribunal passed order dated 5-12-2012 for deposit of rent @ Rs,20,000/- per month, which was tentative rate of rent and could be adjusted at the time of final adjudication of the matter.
10. Non-compliance of the said order compelled the learned Rent Tribunal to perform its statutory duty of invoking the penal provision of the Punjab Rented Premises Act, 2009 as compliance of that direction was a condition precedent to enable the learned Rent Tribunal to examine the bona fide of correctness of various defence pleas of the tenant so as to further proceed with the petition.
'Reliance is placed on the case of Mushtaq Hussain v. Muhammad Shaft (1979 SCM R 496). In any eventuality the petitioner had a remedy of complying with the tentative rent order so as to prove his case by production of evidence and to seek adjustment of the rent, if any, paid in excess. He could not take it upon himself to decide that the orders passed by the Rent Tribunal were illegal and therefore did not merit compliance. Reliance is placed on the case of Javed lqbal Butt v.
Sheikh Fiyaz All by L.Rs, (2004 CLC 981).
11. In the present case it is an admitted position that the predecessor of the present respondents had inducted the petitioner as tenant at a rent of Rs,3000/- per month in 1992 which according to the case built up by the petitioner increased to Rs,10,000/- by the time of his death and after his demise the respondents also agreed to continue with the tenancy through a further oral agreement at the same rate. This Court, I am afraid, is unable to subscribe to the non-payment of statutory enhancement on baseless pretexts. Therefore, only considering the statutory enhancement the tentative assessme nt of rate of Rs,20,000/- by the learned Rent Tribunal cannot be considered as harsh and perverse in any manner.
12. The main purpose of the promulgation of the Punjab Rented Premises Act, 2009 and its preceding legislations is not so much to provide a fast track mechanism to a landlord to realize unpaid rent or to evict a non-compliant tenant but is primarily aimed at protecting the rights of a tenant who is cognizant of the privilege and the licence which has been granted to use the rented premises and who does not in any manner render himself liable to eviction on the grounds provided in the said law. Therefore, keeping in mind the general principles of law if a statute grants privilege upon certain conditions to a person the said person seeking the privilege must also demonstrate that he has strictly complied with the conditions of the privilege. Unless such conditions are not religiously fulfilled the said privilege is not available to the said person and as the other party to the lis cannot be deprived of its rights under the law, therefore, subsection (4) of section 24 of the PRPA, 2009 being mandatory in nature require that the Rent Tribunal "shall forthwith pass the final order" in case of non-compliance of its direction or order. Therefore, lawful orders of Rent Tribunal cannot be avoided by the tenant under the garb of putting forward his own stance. In the case of Muhammad Hanif v. Ch. Sami Ullah (2000 M LD 1345) it has been held that "tenant even if not satisfied with calculation or with rate of rent so determined, was duty bound to make deposit to avoid striking off defence. Tenant, at best could ask Rent Controller to decline withdrawal of amount by landlord, but could not withhold deposit of arrears on any flimsy plea." In the case of Abdul Qayyum Paracha v. Ghulam Hussain and others (1985 SCM R 580) Hon'ble Supreme Court of Pakistan held as under:--- "No legal criterion is laid down for determining the rent, therefore, it lies within the discretion of the Rent Controller to so fix it. This determination is, however, provisional and subject to the final determination of the amount due as rent on the conclusion of the proceedings and in case of default in the payment of the arrears of rent or the future rent, the Rent Controller is empowered to strike off his defence and order his ejectment without taking any further proceedings in the case."
' In the cited judgment of the apex Court the following has also been held: "Illegality of quantum of rent could not be challenged as the proceedings before the Rent Controller are confined to the inquiry relating to wilful default in payment of the arrears of rent and future rent and not to any other matter."
' By no stretch of imagination the impugned orders can be held to be void orders. Learned counsel for the petitioner has been unable to show that as to how the impugned orders are void ab initio and passed without authority. The petitioner was even provided sufficient opportunities to cross- examine the witness(es) of the respondents/ landlords but he failed to do so despite availing numerous adjournments. In these circumstances, the learned Rent Tribunal was justified in striking off his defence.
13. It is settled law that a writ will not be issued by the Court as a matter of course and a writ can be refused even against an illegal order owing to the malicious conduct of a writ petitioner or the application of the established principle that "A writ will not be issued in the aid of injustice". Reliance in this regard is placed on the case of Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others (PLD 1973 SC 236).
14. In view of what has been discussed above, this Court does not find any illegality in the impugned orders of the courts below calling for interference in its writ jurisdiction. The instant petition has no merit and the same is dismissed in limine. The petitioner is directed to hand over vacant possession of the demised premises within a period of two weeks.