' AAMER FAROOQ, J. --- Through the instant petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the Constitution) the petitioner has assailed judgment dated 25.02.2015 passed by respondent No. 1 whereby the appeal filed by the petitioner, against order dated 13.12.2014, passed by respondent No. 2, was dismissed.
2. The facts, in brief, are that respondents No. 3 to 7 filed eviction application, before respondent No. 2, with respect to house No. 13, Street No. 62, Sector G-6/4, Islamabad (the Property) against petitioner. It was contended in the referred eviction application that the property was given on lease to the petitioner by respondents for a period of 11 months in August, 2011 against monthly rent of Rs. 130,000/- (Rupees one lac thirty thousand only). It was further alleged that sum of Rs.
20,000/- (Rupees twenty thousand only) was paid in cash whereas cheque for the sum of Rs.
500,000/- (Rupees five hundred thousand only) was tendered as advance rent which when was presented for payment was dishonoured. The eviction of the petitioner was sought by respondents on three (3) grounds; (i) expiry of lease agreement, (ii) default in payment of rent and (iii) bona fide personal need of the property. The referred proceedings were contested by the petitioner and in the defence it was submitted that petitioner was put in possession of the property in pursuance of an oral agreement to sell by respondents in favour of petitioner and in this behalf the total consideration for the property was settled as Rs. 34,500,000/- (Rupees thirty four million five hundred thousand only) and Rs. 500,000/- (Rupees five hundred 'thousand only) was paid to respondent No. 3, as token. It was further submitted that though the cheque was ' dishonoured but the petitioner paid cash to the referred respondent. It was also contended that time was of essence of the agreement and it was mutually agreed that respondents shall transfer the property in the name of petitioner after the same is transferred in the name of respondents No. 3 to 7 being legal heirs of Ihsan Ullah, owner of the property. In this behalf the petitioner also filed a. Suit for specific performance in the Court of Civil Judge, Islamabad which was dismissed under Order VII, Rule 11, CPC, however, appeal against the referred order is pending in this Court. Out of divergent pleadings of the parties only one issue was framed i.e. Whether relationship of landlord and tenant exists between the parties. The parties led their oral and documentary evidence. Respondent No. 2 vide order dated 13.12.2014 allowed eviction application filed by respondents No. 3 to 7. Appeal was preferred by the petitioner against referred order which was also dismissed vide the .Impugned judgment.
3. The learned counsel for the petitioner, inter alia, submitted that respondent No. 2 did not have jurisdiction in the matter inasmuch as under Section 5 of Islamabad Rent Restriction Ordinance, 2001 (the Ordinance) all lease agreements are required to be in writing and since in the present case there is no written agreement, therefore, Rent Controller did not have jurisdiction to decide the controversy; the impugned judgement is, therefore, without jurisdiction and is of no effect. In support of his contentions learned counsel placed reliance on cases titled "Rana Abdul Hameed Talib v. Additional District Judge, Lahore & others" (PLD 2013 SC 775), "Hakim Ali v. Mohammad Salim & another" (1992 SCMR 46). It was further submitted that respondents failed to establish relationship of landlord and tenant between the parties. In this behalf it was submitted that Courts below have relied upon a blank stamp paper which allegedly was got issued by the petitioner for execution of the rent agreement. It was further submitted that reliance cannot be placed on said document inasmuch as it does not constitute a valid agreement; the document was not proved in accordance with law and is a nullity as the petitioner in its reply as well as during course of cross- examination denied obtaining the stamp paper, therefore, it was incumbent on respondents No. 3 to 7 to prove that the stamp paper was purchased by the petitioner. The learned Counsel further submitted that the transaction vis-a-vis sale of the property was entered into between the parties i.e. Respondent No. 3 and the petitioner; even in the eviction application it has been alleged that the property was rented out by the said respondent to the petitioner, however, the referred respondent though being available did not enter in the witness box, therefore, respondents withheld the best evidence and the said fact goes against them. It was further submitted that the petitioner through cogent evidence has established that the pates entered into an oral agreement to sell which was for a consideration of Rs. 34,500,000/- and the referred fact has been admitted by respondents No. 3 to 7 in their written statement in the suit filed by the petitioner.
4. The learned counsel for respondents No. 3 to 7, inter alia, submitted that question of jurisdiction was not raised before either respondent No. 2 or respondent No. 1, therefore, cannot be raised at this stage. It was further contended that provisions of Section 5 of the Ordinance are directory in nature inasmuch as no consequence is provided for the failure to comply with the referred provision. In this behalf it was contended that whether a provision is directory or mandatory' depends upon whether consequence is , provided in the statute for noncompliance of the referred provision. In support of his referred contention, the learned counsel placed reliance on cases titled "Moulana Nur-ul-Haq v. Ibrahim Khalil" reported as (2000 SCMR 1305), "Ghulam Hassan v. Jamshaid Ali and others" (2001 SCMR 1001), "Niaz Mohammad Khan v. Mian Fazal Raqib" (PLD 1974 134), and "Barkatullah Khan v. Mirza Mohammad Hasan" (PLD 1986 Karachi 309). It was further contended that constitution petition is not a substitute of Civil Appeal and its scope is limited. In this behalf learned counsel placed reliance on "Shakeel Ahmed and another v. Mohammad Tariq Farogh & others" (2010 SCMR 1925). The learned counsel also submitted that concurrent findings of two Courts below cannot be interfered unless it is established that such findings were a result of misreading or non-reading of evidence or were perverse and fanciful. In support of his contention learned counsel placed reliance on cases "Muneer Khan and another v. Uzma Ufaq & three others"
(2011 CLC 846), "Javaid Ahmed v. Mohammad lmran Malik" (PLD 2011 Islamabad 30), and "M/s. Zakiuddin Ahmed Siddiqui and another v. Additional District Judge, Islamabad & two others" (2011 CLC 652). The learned counsel also submitted that even where there is no lease agreement the ejectment petition is competent. Reliance was placed on case titled "Mohammad Taj v.
Mohammad Younis Khilji and another" (2008 CLC 1666); the petitioner has concealed the facts, therefore, the petition is liable to be dismissed. Reliance was placed on case "Dr. Raja Mohammad Kamran v. Shaheer Constructions through Rao Naveed Aftab & three others" (2013 MLD 118); where a tenant alleges sale agreement he has to vacate premises first. Reliance was placed on "Abdul Rasheed v. Maqbool Ahmed and others" (2011 SCMR 320) and "Amjad lqbal v. Haji Sabir Hussain & four others" (2009 CLC 289). It was also contended that in rent matters statement of attorney is competent. Reliance was placed on case titled "Syed Abdul Rauf v. Abdul Sattar" (1998 SCMR 2525).
5. With respect to the merits of the case the learned counsel for respondents No. 3 to 7 submitted that evidence led by the petitioner is inconsistent as witnesses were not coherent as to who was present at the time of settlement of agreement to sell between the parties. The learned counsel also submitted that in the execution proceedings, respondents No. 3 to 7 had almost obtained possession of the property but the same could not materialize due to the injunctive order passed by this Court in the instant petition.
6. The instant petition was filed by respondents No. 3 to 7 under Section 17 of the Ordinance. Under Section 5 of the Ordinance every lease agreement has to be in writing. In this behalf, for the sake of brevity, the referred Section is reproduced below and is as follows:--- "5. Agreement between landlord and tennt.--(1) Every agreement for letting out a building or rented land shall be in writing and if such agreement is not compulsorily registerable under any law for the time being in force, it shall be attested by the Controller by signing and affixing his seal thereto or any Civil Judge or Magistrate of the 1st Class: ' Provided that nothing in this Section shall affect any agreement executed between the landlord and tenant and in force immediately before the commencement of this Ordinance.
(2) A certified copy of an agreement for letting out a building or rented land where such agreement is compulsorily registerable under any law or, where the agreement is not so registerable, the original deed duly attested under sub-section (1), shall be produced and accepted in evidence as a proof of the relationship of landlord and tenant."
7. The grounds for eviction of a tenant from the rented premises are provided in Section 17 of the Ordinance. The referred Section and the other provisions of the Ordinance do not state anything about the lease agreement being in writing except as provided in Section 5 of the Ordinance. The consequence of non-compliance of Section 5 of the Ordinance has not been specifically mentioned in the Ordinance, however, in Section 28 it is provided that in case of failure to comply with any provision of the Ordinance a penalty would be attracted being punishable with fine which may extend to Rs. 5000/-(Rupees five thousand only). The referred Section is reproduced below and is as follows:---
28. Penalites(1) Whoever contravenes, or fails to comply with, any provisions of this Ordinance or the rules made thereunder shall, if no other penalty is provided in this Ordinance for such contravention or failure, be punishable with fine which may extend to five thousand rupees.
(2) No Court shall take cognizance of an offence under this Section except upon---
(a) a complaint of facts which constitute such offence filed with the sanction of the Controller in writing; and
(b) a report in writing of such facts made by the Controller.
8. The fundamental question while deciding the consequence of non-compliance of Section 5 of the Ordinance is whether referred provision is directory or mandatory. In this behalf, the case-law cited by the learned counsel for respondents No. 3 to 7 is instructive. In "Maulana Nur-ul-Haq v.
Ibrahim Khalil (2000 SCMR 1305) it was held that there does not exist any universal rule or an acid test for determining whether a provision of law is mandatory or directory and largely this depends upon intention of Legislature and the language in which the provision is couched, but it is now firmly settled that where consequence of failure to comply with the provision is not mentioned the provision is directory and where the consequence is expressly mentioned it is mandatory. As a general rule statute is understood to be directory when it contains matter merely of direction but it is mandatory when those directions are followed by an express provision that in default of following the effect shall be null and void. Moreover, in the absence of penalty for failure to follow the prescribed procedure the provisions are to be taken directory and not mandatory. Similar view was taken by the apex Court in case titled "Ghulam Hassan v. Jamshaid Ali and others" (2001 SCMR 1001) and it was held where Legislature has provided penalty/consequence for non-compliance of provision such provision is mandatory; where, however, such consequences are not provided, the provision is termed as directory.
9. Though no direct consequence is provided for non-compliance of Section 5 of the Ordinance, however, under Section 28 of the Ordinance non-compliance of any provision of the Ordinance is punishable with fine of Rs. 5000/-. The words used in Section 28 ibid are such that it is not a matter of discretion for the Rent Controller to decide whether to invoke penalty as the word used is "shall" meaning thereby that where any provision of the Ordinance is not adhered to it is incumbent on the Rent Controller, seized of the matter, to invoke the penalty. Since noncompliance of Section 5 ibid is attracted with penalty, therefore, it is a mandatory provision. The next question before this Court is to examine that since Section 5 ibid is mandatory, therefore, whether its non-compliance would invalidate the proceedings initiated on the basis of tenancy arrangement other than as provided in Section 5 ibid i.e. Whether the jurisdiction of Rent Controller could be invoked in cases of oral tenancy. The judgement of the apex Court relied upon by the petitioner i.e. "Hakim Ali v.
Mohammad Salim" (1992 SCMR 46) is relevant inasmuch as while interpreting a similar provision provided in Sindh Rented Premises Ordinance, 1979 the apex Court observed that in case of absence of written lease agreement the jurisdiction of Rent Controller cannot be invoked. It was further observed that there is no doubt that Section 5 of the Ordinance does not provide that if tenancy agreement containing the terms & conditions on which the premises is rented out is not in writing and executed in the manner prow d in' Section 5 ibid then what could be the consequences; how ever, the Apex Court based its decision on the principle that where anything is required to be done in a particular manner it shall be done in that manner or not at all. The august Court also observed that where Section 5 ibid is not complied with then no relationship of landlord and tenant exists for the purposes of tenancy. The said judgement of Hon'ble Supreme Court was not followed by the apex Court in its subsequent decisions. In "Faiz Sons v. Hakim Sons Impex (Pvt.) Limited."
(1999 SCMR 2771) it was observed that if what the parties agreed can be clearly spelt out and the provision in the agreement sought to be enforced is not in conflict with the Statute, the fact that the agreement was not executed in the manner as required by Section 5 of Sindh Rented Premises Ordinance, 1979 could not render such agreement invalid. Therefore, even if the agreement is not executed in the manner provided by Section 5 of Sindh Rented Premises Ordinance, 1979 the same shall be valid. Similar view was taken in case titled "Mohammad Rafiq v. M/s. HBL" (1994 SCMR 1012) wherein 1992 SCMR 46 was discussed, however, not followed. Therefore, the judgement relied upon by the learned counsel for the petitioner does not support his stance. Another judgement of Hon'ble Supreme Court, relied upon by both the parties, is the case titled "Rana Abdul Hameed Talib v.
Additional District Judge, Lahore & others" (PLD 2013 SC 775) in which the Hon'ble Supreme Court interpreted the provisions of Punjab Rented Premises Act, 2009. In the referred Act it is provided that no property is to be rented out without a rent agreement. However, Section 9 of the referred Act is explicit and provides that if a tenancy does not conform to the provisions of this Act then the Rent Tribunal shall not entertain application under this Act unless a fine is deposited equivalent to 10% annual value of rent of the premises in the Government Treasury. The august Supreme Court while interpreting provisions of the referred Act held as follows:-- "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, envisaged 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. The definition (of fine) whereof is "a sum of money as a penalty by a Court of law" OR "a punishment to pay a sum of money for the breach of the law". As it is a penalty and a punishment which has been imposed by the law itself, thus the Tribunal is left with no discretion to waive it off, exonerate or absolve a party coming before it, from such a fine. Anyhow for the present, the fundamental and critical moot points are:- (a) what is the point of time when such fine is to be imposed by the Rent Tribunal? (b)
What is the effect if the fine is not deposited as imposed by the Rent Tribunal? (c) Whether the Rent Tribunal shall have no jurisdiction to receive the application at all, or it can so receive, but shall not proceed with the matter until that fine is paid? In my view the resolution of the last proposition (proposition c) shall also make the answer to the first two propositions easier and clear; therefore I shall take upon this in priority. In this regard, the syntax of the expression "the Rent Tribunal shall not entertain an application under this Act" appearing in Section 9 ibid and specially the word Entertain is of immense significance.
' From the above definitions and the survey of case-law (supra) it is quite clear that the ministerial staff of the Rent Tribunal or for that matter the Tribunal itself, shall not refuse to receive an application of the landlord/tenant, as the case may be, when brought before it, rather on the first date when the matter comes before the Tribunal for the purposes of proceeding with it, the Tribunal shall ascertain from the applicant (of the case) if a validly executed and registered tenancy agreement (as per the provisions of Act 2009) is there and its availability on the record. If that not being so, whether the applicant has deposited the amount of fine as envisaged by Section 9 ibid. If both these aspects are missing, the Rent Tribunal shall halt further proceeding in the matter (emphasis supplied). No notice shall be issued to the respondent of the case and the applicant shall first be required and directed first to deposit the fine by specifying the exact amount as assessed by the Tribunal on the basis of the assertion of the applicant with regard to the rate of rent, within a specified period of time to be mentioned in the order: If the amount is deposited by the applicant/petitioner of the case within such period or the time further extended by the Tribunal, the matter shall be proceeded with further, otherwise the application shall be dismissed. However such dismissal shall not operate as a bar in the way of the applicant to initiate the case afresh after depositing the fine or having a tenancy agreement (executed and registered according to law). It may be emphatically held that no proceeding to determine the case on merit shall be conducted and continued by the Court, until and unless the fine is deposited by the applicant. This is the mandate of the law and the provision ibid (Section 9) is mandatory, which has to be given effect in letter and spirit, keeping in view the purpose and the object of the Act 2009.
This, obviously is the interpretation and the effect of Section 9, when considered independent of Section 8 of the Act 2009, and shall apply to the future tenancies (emphasis supplied).
' In my opinion all such Courts seized of the matter shall halt the proceedings and should direct the original petitioner/applicant of the case to first pay the fine as mandated by Section 9, by determining the exact amount payable and by fixing the period in which the needful should be done; and if the amount of fine is paid."
10. In the above judgment the apex Court observed that application cannot be entertained under the referred Act unless compliance is made and fine is imposed and collected from the defaulting party. The apex Court also observed that all proceedings where ever they are pending under Punjab Premises Rented Act, 2009 shall proceed only if penalty is imposed as provided under Section 9 ibid. In "Almas Ahmed Faiz v. Secretary, Government of Punjab" (2007 PLC 64) wherein it was held that if a mandatory condition for exercise of jurisdiction is not fulfilled then entire proceedings which follow become illegal and suffer from want of jurisdiction. The Apex Court placed reliance on an earlier decision reported as PLD 1971 SC 124. Under the Ordinance the jurisdiction to entertain proceedings has not been linked with fine, however, it is only provided in Section 28 ibid that non-compliance of any provision of the Ordinance shall attract punishment of penalty. Moreover, it is also not specifically provided that non-payment of penalty shall result in ouster of jurisdiction of the Rent Controller. However, since it is mandatory under Section 28 of the Ordinance to punish a party for violating any provision of the Ordinance, therefore, it is incumbent on the Rent Controller to attract Section 28 where ever there is a violation or noncompliance of any provision of the Ordinance. In the present case respondents No. 1 & 2 did not follow Section 28 ibid even though an objection was taken in reply by the petitioner albeit in a vague manner inasmuch as in preliminary objections it was stated by the petitioner that the petition is barred by law. The objection raised by the learned counsel for respondents No. 3 to 7 that no specific objection pertaining to the jurisdiction was taken before the Court of first instance, therefore, same cannot be taken at this stage is of no value in as much as it is established principle that a question of law can be raised at any stage. In this behalf reliance is placed on case titled "Almas Ahmed Faiz v.
Secretary Government of Punjab" (2007 PLC 64) wherein reliance was placed on an earlier decision of the Apex Court reported as PLD 1965 SC 90. Similarly in "Amanullah v. The State" (PLD 2003 Quetta 11) it was observed that question of jurisdiction being a question of law can always be raised by any party at any stage including the appeal.
11. As submitted above though Section 28 is not couched or worded as specifically as Section 9 of Punjab Rented Premises Act, 2009, however, the scope and purpose of it is to ensure compliance of provisions of the Ordinance so that frivolous denial vis-a-vis relationship of landlord and tenant is curtailed. In this purview keeping in view the intention of the legislature I am of the view that Section 28 ibid should desirably be invoked at the earliest while proceedings are pending before the Rent Controller. In case Section 28 is invoked after culmination of proceedings the same shall amount to past and closed transaction. In PLD 2013 SC 775 supra the Hon'ble Supreme Court ordered imposition of fine in all cases wherever pending under the Punjab Rented Premises Act, 2009, therefore, such order can be made in appropriate cases. In the circumstances, therefore, respondents No. 1 & 2 did pot comply with Section 28 of the Ordinance. .12. The sole issue framed by respondent No. 2 in the matter was with respect to relationship of landlord and tenant between the parties. In holding that relationship does exist respondents No. 1 & 2 have relied upon blank stamp paper tendered in evidence by respondents No. 3 to 7 which bears an endorsement at its back to the effect that the same was purchased by the petitioner for the purposes of execution of rent agreement. The petitioner denied the document in its reply as well as during cross-examination. In relying on the said document both the Courts below have erred inasmuch as firstly purchasing of stamp paper does not amount to an agreement and at the best expresses the intention of doing so, secondly since the petitioner denied purchasing of stamp paper, therefore, onus was on respondents No. 3 to 7 to prove the fact that document was purchased by the petitioner. The original stamp paper was tendered in evidence, however, mere tendering a document in evidence does not prove the same. It is an established law that a party relying upon a document has to prove the same in accordance with law. In this regard reliance is placed on case titled "Said Amin v. Nayab" (2011 CLC 309), in which the Hon'ble Division Bench of Peshawar High Court observed that where execution of document is denied by other party then heavy burden lies on the beneficiary of the document to prove that the document was executed by the person out of his free will. Similarly in "Khan Mohammad v. Mohammad Din" (2010 SCMR 135) the maxim who lodges a fact must prove it was reiterated and it was held that initial burden to prove execution of document is on the party which is relying on it. In "Hyderabad Development Authority v. Abdul Majeed" (PLD 2002 SC 84) it was held that merely by tendering a document in evidence has no evidentiary value unless its contents are proved in accordance with law. Similar view was taken by the Division Bench of Peshawar High Court in case titled "Dad Karim v. Lshaq" (2015 CLC 107) and it was reiterated that mere tendering document in evidence has no evidentiary value unless proved in-accordance with law.
13. In the present case the document, in question is a blank stamp paper. The petitioner denied purchasing the same, therefore, respondents No. 3 to 7. Being the beneficiary of the referred document were required to prove that the same was purchased under the signature/thumb impression of the petitioner, in light of the above case-law.
14. Though the Stamp Vendor did submit that the petitioner purchased the stamp paper and in cross-examination no specific question was asked with respect to the referred aspect but since the petitioner has denied purchasing the referred document, therefore, the said fact had to be proved and without the same document could not have been relied upon as was done by the Courts below. Moreover, the register of stamp vendor which allegedly bears the signature of the petitioner was held to be not admissible in evidence. Since the purchase of the document by the petitioner has not been proved, as required by law, the Courts below erred in relying on the said document. There is no receipt for payment of Rs. 20,000/- as cash towards advance rent.
Undoubtedly, this Court in exercise of constitutional jurisdiction cannot interfere with the concurrent findings of the Courts below unless there is an illegality or misreading or non-reading of evidence, however, since the Courts below heavily relied upon the stamp paper which was not proved in accordance with law and is not a valid piece of evidence, therefore, an illegality has been committed by respondents No. 1 and 2.
15. The Courts below have also held that since the petitioner has relied upon agreement to sell between the parties and he was put in possession of the property in pursuance thereof, therefore, under the law declared by the Courts of Pakistan he had to relinquish possession in the eviction proceedings and can prove its case in the proceedings for specific performance. The learned counsel for respondents No. 3 to 7 during the course of arguments in support of referred proposition relied upon 2011 SCMR 320 and 2009 CLC 289 supra. In case titled "Abdul Rasheed v.
Maqbool Ahmed and others" (2011 SCMR 320) the Hon'ble Supreme Court observed that where a tenant takes a plea that during the course of tenancy he purchased the rented property then in the eviction proceedings he has to vacate the property and file suit for specific performance of sale agreement whereafter he would be given easy access to premises in case he prevailed. In "Mohammad Akram Khan v. Awal Zaman Khan" (2002 CLC 1686) the Hon'ble Division Bench of Peshawar High Court the proceedings before the Rent Controller were stayed as the dispute between the parties pertained to title in the property in question as the tenant had filed suit for specific performance against the landlord and was not simpliciter denial of relationship of landlord and tenant. In the present case the petitioner never claimed to be the tenant of respondents No. 3 to 7 and has categorically submitted that he entered into possession of the property in pursuance of oral sale agreement and there never was any tenancy arrangement between the parties.
Moreover, respondent No. 3 never entered the witness box despite the fact that he acted on behalf of legal heirs of lhsanullah and dealt with the petitioner.
16. There is no cavil to the argument of the learned counsel for respondents No. 3 to 7 that this Court in exercise of constitutional jurisdiction does not interfere in the findings of the. Courts below unless there is a jurisdictional defect or illegally committed by them. In the instant case as mentioned above question of jurisdiction was raised in the reply by the petitioner albeit vaguely but was not adverted to and even on merits illegality has been committed by relying on a document which was not proved in accordance with law and the principle which is not squarely applicable in the circumstances of the case, therefore, the impugned judgment is not sustainable.
17. In view of above the instant petition is allowed, judgments dated 25.02.2015 and 13.12.2014 are set aside and the matter is remanded to respondent No. 2 to ensure compliance of Section 28 of the Ordinance and decide the case afresh on merits in view of the observations made above. /Case remanded.