' SHAHID KARIM, J. --- This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is directed- against the order dated 02.01.2015 passed by the Rent Tribunal, Lahore whereby an application filed under. Section 24 of the Punjab Rented Premises Act, 2009 (Act) was dismised.
2. On 21.4.2015, the respondent No 1 appeared in person- io. Response to the notices issued to him and sough time to engage a counsel. No one appeared on the next /ate of hearing which was fixed as 12.5.2015. Even today despite repeated calls, no one has appeared on behalf of the respondent No, .1 to contest the instant petition. The is, therefore, proceeded against ex parte.
3. The proposition in this petition is simple and relates to the orders to be passed under Section 24 of the Act.
4. The relevant facts lend themselves fortunately to some simplification. The petitioner filed an ejectment petition against the respondent No, t Leave to contest was filed by the respondent No, 1 and upon hearing the parties, the Special Judge (Rent), Lahore vide order dated 3.12.2014 accepted the application for leave to contest and framed the following issues:-
(1) Whether the relationship of landlord and tenant exists between the parties, if so, its effect? OPA.
(2) Relief.
5. The petitioner thereafter filed an application under Section 24 of the Act. The nub of the application was that the mandate of Section 24 required that while granting leave to contest, it was an obligation cast upon the Special Judge (Rent) to direct the tenant to deposit the rent due from him within a specified time and continue to deposit the same in accordance with the tenancy agreement or as may be directed by the Rent Tribunal. By sub-section (2) of Section 24 of the Act, if there is a dispute as the amount of rent due or rate of rent, the Rent Tribunal is obliged to tentatively determine the dispute and pass the order for deposit of the rent in terms of sub-section (1). While granting leave to contest, the Special Judge (Rent), Lahore did not pass an order in terms of Section 24 of the Act, which gave rise to the grievance of the petitioner. An application was filed for the purpose and which too was dismissed vide the impugned order dated 02.01.2015.
6. The learned counsel for the petitioner submits that the impugned order is ultra vires Section 24 of the Act, in that, the said provision of law without equivocation casts an obligation on a Rent Tribunal to pass an order for the deposit of the tentative rent and this obligation is not conditional upon whether the relationship of landlord and tenant is disputed or not. According to the learned counsel, the Special Judge (Rent) has committed an error of law by not making the order simultaneously with the grant of leave to contest and this has rendered the impugned order without lawful authority.
7. In the order dated 03.12.2014, the Special Judge (Rent), Lahore did advert to the aspect of the deposit of interim rent in terms of Section 24 of the Act. However, that order was not made on the ground that the relationship of landlord and tenant had yet to be determined and until that was done, the order for the payment of interim rent could not be made. No reasons have been given by the Special Judge (Rent) for failure to make an order for the payment of interim rent and the impugned order dated 3.12.2014 to that extent is presumptuous and tendentious to say the least.
Further, the impugned order dated 2.1.2015 passed on an application under Section 24 of the Act also proceeds on the asumption that the issue regarding the determination of relationship of landlord and tenant had been framed and which aspect has yet to be determined and, therefore, there was no requirement for an order for the payment of interim rent to be made.
8. Both the impugned orders of the Special Judge (Rent) proceed on a fallacy and have no legal legs to stand upon. The proposition in the instant case is simple and the intention of the legislation has clearly been spelt out in Section 24 of the Act. The tenor of Section 24 of the Act does not make a distinction between the cases where the relationship of landlord and tenant is admitted and in those cases where the said relationship is denied. The mandate of Section 24 is clear. When an application for leave to contest is granted, it falls upon the Rent Controller to make an order for the deposit of rent due from the tenant and continue to deposit the same in accordance with the tenancy agreement. This proposition is bolstered by the terms of sub-section (2) of Section 24 of the Act which lays down that if there is no dispute as to the amount of rent due, then the Rent Tribunal shall tentatively determine the dispute and pass the order for the deposit of rent in terms of sub-section (1) of Section 24 of the Act. The term "rent due" has a wide sweep and would include a dispute of the nature where the relationship of landlord and tenant is denied. Moreover, if the construction sought to be put on Section 24 of the Act by the Special Judge (Rent), is accepted this would, on the one hand, nullify the intention of the legislature and on the other hand, would give a lever in the hands of the tenants to avoid the payment of rent.
9. In the instant case, the leave to contest was granted by taking into account the fact that the petitioner herein had relied upon a tenancy agreement whereas the defence of the respondent No, 1 was based on a purported agreement to sell. Thus, admittedly, an agreement of tenancy was being relied upon by the petitioner and which should have formed the basis for determination under Section 24 of the Act by the Special Judge (Rent). It was otiose for the Special Judge (Rent) to have relied upon the agreement to sell while refusing to exercise jurisdiction in terms of Section 24 of the Act. A common thread which runs through the Act is to discourage and ward off unscrupulous and irrational defenses on the part of tenants. If the deposit of payment of interim rent was made dependent upon the denial or .Acceptance of the relationship of landlord and tenant then the spirit which permeates the Act would be rendered nugatory. Surely, in case of dispute as to amount or rate of rent or a denial of relationship, 'the tentative rent may be deposited with the Rent Tribunal and reimbursed at the conclusion of the trial to the party entitled to it. This shall also discourage multiplicity of litigation.
10. We will bear in mind that with the promulgation of Act, 2009, a paradigm shift has been brought about in the relationship of landlord and tenant. A foundational change is that by Section 5 of the Act, 2009 a tenancy agreement must be in writing and registered. A combined reading of sections 5, 6, 7, 8 and 9 of the Act, 2009 brings forth ineluctably the sea-change which runs through the length and breadth of the Act, 2009. Section 6 prescribes the contents of the tenancy agreement and 'Section 8 casts an obligation for existing tenancies to be brought in conformity with the provisions of Act, 2009 and not later than two years. The jurisdiction of Rent Tribunal is only triggered when the conditions laid down in the Act, 2009 are found to exist. Section 9 bars the Rent Tribunal from entertaining an eviction application under the Act unless the tenancy conforms to the provisions of the Act. There could not have been a clearer expression of the intention of the legislature. This prefatory of the various provisions of the Act, 2009 has been brought forth in order to telescope the distinguishing features of Act, 2009 from the provisions of West Pakistan Urban Rent-Restriction Ordinatsce, 1959. Any adjudication of an eviction application must be made while keeping in view those distinguishing features and the intention of the legislature to clear the cobwebs in the Rent Laws.
11. A recent judgment of the Supreme Court of Pakistan reported as Rana Abdul Hameed Talib v.
Additional District Judge, Lahore and others (PLD 2013 SC 775) penned by Saqib Nisar, J. Is an erudite expression of the spirit that is at the heart of the Act, 2009. The following observations are being reproduced to bring home the point:- "It is expedient to mention here, that in all the erstwhile laws on the subject, such a stipulation was never the requirement of the law. Anyhow, it is clear from the language of sub-section (1) that a specific command has been given to the landlord that he: shall not let out a premises to a tenant except by a tenancy agreement", and as per definition clause Section 2(m) "a tenancy agreement means an agreement in writing by which landlords let out a premises to a tenant meaning thereby, that the very creation an subsistence of a valid tenancy has been made subservient and subject to the execution of a written tenancy agreement, which agreement the landlord is obliged to present before the Rent Registrar for the registration (see Section )(2). The above mandate of law, is fortified by the factum that the certified copy of the tenancy agreement has been made the proof of relationship of tenancy (see Section 5(5). In my opinion, through this mechanism and effort has been made, to do away with the possibility of any grey areas and the confusions in regard to the creation of tenancies and the issues related and having nexus thereto.
' Thus, from the above-stated legal position and the factual backdrop, it is my candid opinion that the nature, the interpretation and the effect of Section 9 in relation to the proposition in hand, (note: stated at the very outset of this judgment) has to be reckoned and made, keeping in view the afore-mentioned object(s) of the law, not only with respect to those tenancies coming in being in future, but also those existing (prior to the new law). And this has to be done on account of the collective reading of sections 9, as also the other provisions of the Act mentioned earlier, including 5, 6 7 ibid, and thus it should be determined and adjudged, as to whether the said Section 9 is a mandatory or a directory provision of law and the effect thereof.
' Upon the unmistakable reading of the Section and especially when conjointly read with all other relevant provisions (referred to supra) it seems that all these are integrated provisions, having nexus to the very purpose of the Act as described above, and the palpable object of the law is to compel the parties to enter into a tenancy agreement within the purview and scope of the provisions of sections 5, 6 and 7 of the Act, 2009 (read together). Therefore, a penalty has been provided by the law for the breach of the obligations, envisages thereby, in that, where the tenancy agreement is not so entered and registered and a landlord or the tenant approach the Tribunal for the enforcement of his right(s) under the Act, 2009 he has to pay a fine."
12. I have read the order dated 03.12.2014 passed by Special Judge (Rent) by which leave to contest was granted to the respondents. The part of the order by which application for leave to contest was granted is not directly under challenge in the present petition. However, the refusal to pass an order under Section 24 of the Act is under challenge and which flows from this order and is a necessary corollary of it. The order of 03.12.2014 fails to take into account the provisions of Section 10 of the Act, 2009 as also a settled principle vouched by respectable authority. For facility, Section 10 of the Act is reproduced as under:--- "10. Effect of other agreement.---An agreement to sell or any other agreement entered into between the landlord and the tenant, after the execution of a tenancy agreement, in respect of premises and for a matter other than a matter provided under the tenancy agreement, shall not affect the relationship of landlord and tenant unless the tenancy is revoked through a written agreement entered before the Rent Registrar in accordance with the provisions of Section 5."
13. It is clear from a reading of the provisions of Section 10 reproduced above that an agreement to sell or any other agreement entered into between the landlord and tenant shall not affect the relationship of landlord and tenant. The mandate of Section 10 has to be given effect to without demur. Secondly, the principle that an agreement to sell does not create a title as laid down by the superior Courts and etched on a tablet of stone, has also been thrown to the winds. I shall not dilate anymore on this aspect lest it prejudices the proceedings before the Rent Tribunal.
14. The learned counsel for the petitioner has relied upon Haji Jumma Khan v. Haji Zarin (PLD 1999 Supreme Court 1101), Qamar-ud-Din v. Abdul Latif and others (2010 YLR 114), Muhammad lqbal Haider and another v. Vth Rent Controller/Senior Civil Judge, Karachi Central and others (2009 SCM R 1396), lqbal and 6 others v. Mst. Rabia Bibi and another (PLD 1991 Supreme Court 242) and Syed Bahadur Ali Shah v. Additional District Judge and 3 others (2012 YLR 2293) in support of the proposition that an agreement to sell does not confer any right and if the defence on the basis thereof has been set up by a tenant, then the tenant must first vacate the premises as an expression of his bona fide, handover the possession to the landlord and may then claim on the basis of that agreement to sell. The principle settled in these judgments are immutable and have been dealt with in the preceding paragraphs. Section 10 of the Act, 2009 in my opinion, is merely a statutory recognition of that principle and Rent Tribunal adjudicating eviction application ought to act compatibly with the mandate of Section 10 of the Act, 2009 by keeping in view the intention which underlies it. Further, every eviction application must be analyzed and weighed on the touchstone of the principles laid down in the case of Abdul Hameed Talib, Supra, which should serve as the guiding principles.
15. For what has been stated above, this petition is accepted and the impugned orders dated 3.12.2014 (to the extent of refusal to order the deposit of rent due in terms of Section 24 of the Act, 2009) and 02.01.2015 passed by the Judge (Rent), Lahore are set aside. The Special Judgment), Lahore shall proceed to determine the interim rent in is of Section 24 of the Act before proceeding further with merits of the ejectment petition.