Ali Akbar Qureshi, J:- The petitioner, through this Constitutional petition, has assailed the ejectment order dated 08.11.2014 and 15.06.2011 passed by learned forums below against the petitioner.
2. The facts as depict from the record, are that the respondent No.1/landlord filed an ejectment petition to evict the petitioner/tenant from the shops No.5, 6 & 7 situated in New Anarkali, Lahore, on the grounds of default in making the payment of monthly rent since January, 2008, and subletting the demised premises which is against the terms and conditions of the tenancy agreement executed between the parties. The ejectment petition was contested by the petitioner by filing an application for leave to contest under Section 22 of the Punjab Rented Premises Act, 2009. In the application for leave to contest, the petitioner/tenant took a legal objection, that ejectment petition has been filed against a dead person i.e. Father of the petitioner, namely, Imdad Ali despite the fact, that the death of Imdad Ali was very much in the knowledge of the respondent/landlord, therefore, the ejectment petition is not maintainable. On facts, it was submitted, that the petitioner had regularly paid the monthly rent and has not committed default or violated the terms and conditions of the tenancy agreement. Leave was granted by the court.
3. Learned Special Judge Rent, out of the divergent pleadings, framed as many as five issues, recorded the evidence of the parties and allowed the ejectment petition, against which an appeal was filed which was dismissed by learned appellate court, hence, this writ petition.
4. Learned counsel for the petitioner has mainly argued, that the ejectment petition which was filed against a dead person i.e. Father of the petitioner/tenant, is not maintainable as this fact was very much in the knowledge of the respondent/landlord prior to filing the ejectment petition. Reliance is placed on Muhammad Yar (Deceased) through L.Rs. And others v. Muhammad Amin (Deceased) through L.Rs. And others (2013 SCMR 464), Malik Bashir Ahmed Khan and others v. Qasim Ali and others (PLD 2009 Supreme Court 183), Ch. Muhammad Tufail Khan alias Tufail Muhammad through Legal Representatives v. Zari Taraqiati Bank Limited through Branch Manager (PLD 2007 Lahore 180).
On the point of default, learned counsel for the petitioner submits, that the petitioner regularly paid the monthly rent and has not committed any default. Further submits, that in fact, learned courts below while deciding the maintainability of the ejectment petition against a dead person, have not carefully perused the record and the law applicable on the case, therefore, the ejectment orders passed by learned courts below are liable to be set aside on this score alone.
5. Learned counsel for the respondent submits, that the shops in question were rented out to the father of the petitioner and at the time of filing the ejectment petition, the death of the father of the petitioner, namely, Imdad Ali was not in the knowledge of the respondent/landlord, therefore, the ejectment petition initially was filed against the deceased father of the petitioner, but subsequently, the name of the petitioner was substituted. Next contended, that the petitioner himself appeared in the court in response of the notice and informed, that the original tenant i.e. Father of the petitioner has died and the shops in question are under the possession of the petitioner as tenant. As regards the default in payment of monthly rent, learned counsel submits, that it has been proved through evidence, that the petitioner has committed default in making the monthly rent since January 2008, therefore, both the courts below rightly passed the ejectment order against the petitioner. Reliance is placed on Mst. Mariam and 3 others v. Abdul Rashid (1984 CLC 1571) [Karachi], Abdul Salam v. Mrs. Tahira Zaidi (1984 CLC 2855), Syed Muhammad Anwar Advocate v. Sheikh Abdul Haq (1985 SCMR 1228), Munir Ahmed Memon v. Mst. Mumtaz Begum (1990 MLD 1689), Muhammad Faryad v. Muhammad Asif (PLD 1993 Lahore 469), Mst. Azizan and another v Mehr Din (1993 CLC 1187), Mst. Zubaida Begum v. Mst. Irshad Bibi (1994 CLC 1044) [Lahore], Land Acquisition Collector, Tarbela Dam Resettlement Organization, WAPDA, Ghazi and 2 others v. Hikmat Khan and another (1996 MLD 1587), Zulfiqar v. Muhammad Jan (2002 CLC 932), Syed Sajjad Hussain Shah v. Messrs Federation of Employees Cooperative Housing Societies Ltd. Through General Secretary (2003 CLC 1011), Municipal Committee, Gujrat through Administrator v. Deputy Administrator, Evacuee Trust Property, Gujrat and 3 others (2004 MLD 1170), Nasar Khan and 16 others v. Additional District Judge-I, Lakki Marwat and 76 others (2007 CLC 326), Muhammad Tariq v. Member Board of Revenue, Punjab, Lahore and others (2007 CLC 1123), and Pakistan Bait-ul-Mal v. Umar Mahmood Kasuri and another (PLD 2008 Lahore 250).
6. Heard. Record perused.
7. As per the record, the relationship of landlord and tenant is admitted. The shops in question were rented out to the deceased father of the petitioner through written tenancy against monthly rent and after the death of the original tenant i.e. Imdad Ali, the petitioner who is son of the original tenant, occupied the shops as tenant and started paying monthly rent to the respondent/landlord.
8. The ejectment petition as evident from the record, has been filed on the ground of default and subletting. In this case, the leave was granted and the case was decided on merits after recording the evidence of the parties and both the learned courts below have concurrently reached to the conclusion, that the petitioner has committed default in making the payment of monthly rent as the rent for the month of January to March 2008 through money order was paid on 03rd of April 2008, whereas according to the terms of the tenancy agreement, the monthly rent is to be paid by 05th of every running month in advance. Although, the petitioner adduced witnesses in support of his contention, but miserably failed to prove the payment of monthly rent according to the terms of the agreement. As in section 15 of the Punjab Rented Premises Act, 2009, default is one of the grounds, and the ejectment petition can be filed on the ground of default, therefore, the learned courts below rightly decided Issue No.1 against the petitioner.
9. Learned counsel for the petitioner mainly argued on the point which relates to the maintainability of the ejectment petition against a dead person. No doubt, the ejectment petition was filed against the deceased father of the petitioner but in response of the notice issued by the Special Judge (Rent), the petitioner, who is real son of deceased Imdad Ali, appeared in the court and filed an application for leave to contest under Section 22 of the Punjab Rented Premises Act, 2009, wherein the petitioner took this legal objection and informed the Court, that the ejectment petition has been filed against the deceased father of the petitioner, and presently, the shops are in possession of the petitioner as tenant.
10. After filing the application for leave to contest by the petitioner, the respondent/landlord filed an application for the substitution of the name of Muhammad Azeem instead of Imdad Ali, this application was accepted on 07.11.2008 and the name of the deceased Imdad Ali was substituted with Muhammad Azeem, the present petitioner. This order was never challenged before any forum by the petitioner. The learned Special Judge (Rent) while framing the issues on the divergent pleadings of the parties, framed Issue No.4 which is as under: Whether ejectment petition is liable to be dismissed? OPR.
In the above issue, it is not mentioned, that the ejectment petition is liable to be dismissed being filed against a dead person and the petitioner neither filed any application for re-framing the issue, nor challenged the same. Further, as recorded by the learned Special Judge (Rent) while deciding Issue No.4, the petitioner/tenant did not produce any evidence in support of this issue to discharge his onus as the learned Special Judge (Rent) while framing the aforesaid issue, placed the onus on the petitioner/tenant. The findings on issue No.4 were affirmed by the learned appellate court, while dismissing the appeal.
11. Before discussing the law referred by learned counsel for the petitioner in support of his argument, that the ejectment petition against a dead person is not maintainable, it would be appropriate to consult the basic law i.e. The Punjab Rented Premises Act, 2009. The Section 34 of the act ibid is relevant which is reproduced as under: "Provisions of Qanun-e-:Shahadat Order and Code of Civil Procedure not to apply._ Save as otherwise expressly provided under this Act, the provisions of the Qanun-e-Shahadat Order, 1984 (P.O. No.10 of 1984), and the Code of Civil Procedure, 1908 (Act V of 1908) shall not apply to the proceedings under this Act before a Rent Tribunal, District Judge or Additional District Judge."
According to the terms of above section, the legislature has not made applicable the provisions of Qanun-e-Shahadat Order, 1984, and the Code of Civil Procedure, to the proceedings under the Punjab Rented Premises Act, 2009 before a Rent Tribunal, District Judge or Additional District Judge.
Their lordships of the Hon'ble Supreme Court of Pakistan has observed in the judgment cited as Haji Khudai Nazar and another v. Haji Abdul Bari (1997 SCMR 1986), that the provisions of the C.P.C unless specifically made applicable by the rent law do not apply in terms to the rent proceedings.
The relevant part of the observation is as under: "5. The first question is whether C.P.C is applicable to the proceedings before the Rent Controller.
The consensus is that the provisions of C.P.C. Unless specifically made applicable by the rent laws, do not apply in term to the rent proceedings, but the principles of C.P.C. So far they are not in conflict with the provisions of the rent laws and advance the cause of justice, may be applied in the facts and circumstances of the case. (Underline is mine). In Mrs. Nawab Din Ahmed and another v.
Faiz-ur-Rehman (PLD 1982 Karachi 89) the applicability of C.P.C. In proceedings before the Rent Controller was considered by me and after referring to Ghulam Nabi v. Mukhtar Ahmed (PLD 1980 SC 206) and Imperial Dying and Printing Mills Karachi v. Safdar Ali (PLD 1971 Karachi 778), it was observed: "The consensus of opinion is that C.P.C. Is not applicable in terms to the proceedings before the Controller. It is only applicable to the extent provided by the Ordinance itself. However, where no procedure has been provided it is just and convenient to apply the principles laid down by the Code of Civil Procedure for the conduct of proceedings. In applying these principles the penal provisions as provided by C.P.C., cannot be pressed in service. The principles of Order XXII can be applied for bringing the legal heir in record."
In the second judgment cited as Hanif and others v. Malik Ahmed Shah and another (2001 SCMR 577), the Hon'ble Supreme Court of Pakistan, while dealing with this proposition has observed as under: "There is no gainsaying that the provisions of Code of Civil Procedure may not be stricto senso applicable to the proceedings before a Rent Controller, broad and equitable principles regulating the procedure of the proceedings before the Rent Controller can always be invoked and attracted in the interest of justice and fairplay."
12. From the above esteemed observations, it is made clear, that the provisions of C.P.C. Are not applicable and even otherwise, the facts of the instant case are peculiar, as the petitioner, who is son of deceased original tenant, himself came forward in response of the notice issued by the learned Special Judge Rent, fully participated in the proceedings and also admitted, that after the death of his father, the original tenant, the petitioner is occupying the shops as tenant.
It is not denied, that the Hon'ble Supreme Court of Pakistan in the judgments referred by the learned counsel for the petitioner, while dealing with a case of civil nature, has observed, that a civil suit against a dead person is not maintainable whereas the instant case/petition has been filed under the provisions of the rent laws, therefore, the provisions of C.P.C., as observed by the Hon'ble Supreme Court of Pakistan in the judgments supra, are not applicable, therefore, the judgments cited by the learned counsel for the petitioner are distinguishable.
13. On the other hand, the judgment cited as Mst. Mariam and 3 others v. Abdul Rashid (1984 CLC 1571) [Karachi], is directly applicable on the facts of the instant case wherein it is held, that the name of the dead person can be substituted with the legal representative.
14. Even otherwise, the notice issued by the court was received and in response thereof, the petitioner appeared in the court and informed regarding the death of his father during the tenancy whereas the respondent/landlord filed an application and substituted the name of the petitioner with his deceased father. In appeal, no such objection was taken.
15. Although learned counsel for the petitioner argued the case at length, but could not point out any jurisdictional defect, legal infirmity, irregularity or illegality committed by the forums below, therefore, there is hardly any reason to interfere with the well worded concurrent findings of the learned courts below. I am fortified by the esteemed judgments of the Hon'ble Supreme Court of Pakistan, in the case of Cantonment Board through Executive Officer Cantt. Board, Rawalpindi v.
Ikhlaq Ahmed and others (2014 SCMR 161), Mst. Zaitoon Begum v. Nazar Hussain and another (2014 SCMR 1469) and Noor Muhammad and others v. Mst. Azmat-e-Bibi (2012 SCMR 1373).
16. Resultantly, this writ petition has no force and the same is dismissed with no order as to costs.