' ARSHAD MAHMOOD TABASSUM, J.---Haji Nawaz Ali (respondent No,1 herein) filed an ejectment petition against the petitioner in respect of shop No,1090-2, Mohallah Amar Pura, Rawalpindi, stating therein that the said shop was rented out to the petitioner by his father through lease agreement dated 29.10.1988; that the lease agreement had since expired; that the petitioner was willful rent defaulter; that he had not enhanced the rate of rent as per law and that he required the said shop for his bona fide personal need in order to run his own business, as he had no other shop for that purpose.
2. The petitioner submitted application for leave to contest the petition by maintaining that the respondent had no locus standi to file the ejectment petition as tenancy was between his father and the petitioner; that he (tenant) had paid an amount of Rs,4,00,000/- as Pagri to the original landlord, namely Rahdi Gull, through agreement dated 29.10.1988, which was refundable to him; that initially the rate of rent was Rs,1650/- per month, which was enhanced from time to time and presently, it was Rs,3500/- per month, which was being paid regularly; that the demised premises being joint property of the legal heirs of the said Rahdi Gull , the ejectment petition could not be maintained by the respondent, being one of his legal heirs and that the respondent had no personal bona fide need qua the demised shop.
3. The learned Rent Tribunal dismissed the said application for leave to contest the ejectment petition vide order dated 18.09.2011 and ordered for ejectment of the petitioner from the demised shop, however, on appeal vide judgment dated 15.11.2011, the order, passed by the learned Rent Tribunal, was set aside and the matter was remanded. Thereafter, the ejectment petition was decided on merit after recording evidence of the parties and vide order dated 14.07.2012, the same was allowed. The said order was again challenged by the petitioner through filing appeal before the learned District Judge, which was dismissed by a learned Additional District Judge on 11.09.2012.
4. Being dissatisfied with the said judgment, the petitioner has preferred the instant writ petition.
5. Learned counsel for the petitioner has argued that both the learned courts below have mis-read and misconstrued the evidence available on record and thereby arrived at wrong conclusion; that the ejectment petition was addressed to the learned Senior Civil Judge/Rent Controller, whereas under the law the same should have been instituted in the court of Special Judge (Rent), as such, it was instituted in a wrong forum, therefore, the impugned judgment of the learned trial court and that of the learned first appellate court are without jurisdiction; that admittedly, the petitioner was a tenant under the father of the respondents and after his death no further tenancy agreement was executed between the legal heirs of the deceased landlord and the petitioner, hence, relationship of landlord and tenant did not exist between the parties; that the, respondents failed to establish the alleged default in payment of rent; that issue No,2 was recast on the application of the petitioner, but thereafter despite request made by the petitioner, no opportunity was provided to him to lead evidence in respect of the said issue, as such, the petitioner had been deprived of an opportunity to prove that issue, which resulted into great mis-carriage of justice; that the petitioner had made payment of Rs,4,00,000/-, being Pagri, which he was entitled to recover and should have been refunded to him, but both the learned courts below have disbelieved his claim on the basis of surmises and conjectures; that the learned first appellate court has erroneously held that the interim order regarding dismissal of the application of the petitioner could be assailed through filing a writ, and that since it was not challenged, the same had attained finality and that both the learned courts below have committed illegalities, which are liable to be rectified by this Court in its writ jurisdiction by setting aside the impugned judgments.
6. Conversely, learned counsel for the respondents has fully supported the impugned judgments, passed by both the learned court below.
7. Heard. Record perused.
8. First of all, I will take the objection, raised by the learned counsel for the petitioner to the jurisdiction of the leaned trial court. In this regard, it may be observed that no doubt the ejectment petition has been addressed to the learned Senior Civil Judge/Rent Controller, Rawalpindi, however, as observed by the learned first appellate court, it was entrusted to a learned Judge duly notified as Special Judge (Rent) and the same was decided by him, thus, mere non-mentioning of the correct designation of the learned trial court does not take away the jurisdiction of the learned Special Judge (Rent), who was seized of the matter and decided the same. In this regard, case law relied upon by the learned counsel for the petitioner i.e,PLD 1972 SC 271, titled "Rashid Ahmad v. The State", PLD 2011 SC 126, titled "Evacuee Trust Property Board v. All Bahadur" and PLD 1990 Lahore 370, titled "Caltex Oil (Pak.) Ltd. v. Mian Ashiq Muhammad Faiz" is quite distinguishable.
9. Next argument of the learned counsel for the petitioner is that the petitioner has not been provided an opportunity to produce evidence to discharges onus to prove issue No,2. In order to appreciate this argument, it may be beneficial that the issues framed by the learned Special Judge
(Rent) be reproduced herein below:- "ISSUE No,1 ' Whether the respondent is rent defaulter, if so for which period and for what amount? OPA ' ISSUE No,2 ' Whether the respondent has paid a sum of Rs, 4,00,000/- as security/Pagri to Radi Gull (original owner of the rented premises), which is refundable, if so, its effect? OPR"
"AMENDED ISSUE No,2 ' Whether the respondent is entitled for amount of Pagri as agreed between Radi Gull original owner of the rented premises and the respondent in agreement dated 29.10.1988? OPR
10. It appears that the parties led their evidence after framing of issues. Subsequently, on 23.06.2012, on the application of the petitioner, the learned Special Judge (Rent) framed amended issue No,2 as reproduced above. The language of issue No,2 as originally framed and issue No,2 as amended, clearly demonstrates that the controversy in both the issues revolved around the issue of Pagri amounting to Rs,4,00,000/- which the petitioner had allegedly paid to the father of the respondents. Onus to prove the said issue was upon petitioner (tenant) and he was obliged to produce sufficient evidence to discharge the said onus. It appears that in order to prove the said issue, the petitioner produced Sh. Shahzad Pasha (C.W.1), who was son of the stamp vender (since died). The agreement regarding Pagri (Ex.C.W.1/1) was put to him, who maintained that no such stamp paper stood mentioned in the stamp vending register, maintained by his late father in the year 1988 at Sr. No,47 dated 29.10.1988. No other marginal witness of the said agreement was produced on the ground that they had died. This being so, after framing of amended issue No,2, the petitioner submitted an application dated 29.06.2012 for re-summoning of respondent (R.W.1) for re-examination in respect of agreement (C.W.1/1). The order dated 03.07.2012, passed by the learned Special Judge (Rent) shows that the said application was turned down. However, it is noteworthy that the petitioner was supposed to have cross examined (R.W.1), when at first time, he entered the witness box as at that time, he was obliged to substantiate his version by producing evidence and cross examining any witness produced by the respondents' side. Therefore, there was no reason available with the learned Special Judge (Rent) to resume on R.W.1 for further cross examination. In this regard, the observation of the learned first appellate court to the effect that since the petitioner did not assail the order dated 23.06.2012 through filing writ petition does not appear to be based on sound reasoning, because an interim order against which no appeal is provided is always available for challenge to an aggrieved party in the appeal against the final order/judgment. However, the fact remains that the order dated 23.06.2012 is based on sound reasoning and is not open to any interference even by this Court in its constitutional jurisdiction.
11. The next argument of the learned counsel for the petitioner was that the petitioner had no locus standi to file the ejectment petition, being the only legal heir of the late Rahdi Gull, as he had entered the demised premises as a tenant under the said Rahdi Gull. I have considered this argument of the learned counsel for the petitioner. It is observed that in his application for leave to contest the ejectment petition, the petitioner has maintained as under:- "Thereafter the rent was enhanced upto Rs,2575/- and now the respondent has been paying Rs, 3500/- rent quite regularly to the petitioner. "
' To my mind, the claim of the petitioner that he has been paying rent regularly to the respondent Haji Niaz Ali alone estopps him to maintain that he is not the landlord. In this regard, it may be observed that Clause (d) of Section 2 of the Punjab Rented Premises Act, 2009 defines the term "landlord" in the following words:- "(d) "Landlord" means the owner of a premises and includes a person for the time being entitled or authorized to receive rent in respect of the premises; "
' Thus, when the petitioner had been paying rent regularly to Haji Niaz Ali (respondent herein), he cannot maintain that he was not the landlord. Similarly, it has been ruled by the august Supreme Court of Pakistan that person dealing with collection of rent, enhancement of rent and negotiation with tenant for evicting the premises shall come within the preview of the expression "landlord" and ejectment petition filed by such person was maintainable. (2001 SCM R 577, titled "Hanif and others V. Malik Ahmed Shah and another"). Similarly, it has been ruled by the Apex Court that a co-owner is a landlord within the scope of definition of "landlord" and that ejectment application against a tenant by a co-owner without joining other co-owners is competent. (PLD 2000 SC 787, titled "Haji Abdullah Jan v. Anwar Khan").In the light of. Above discussion and case law referred to above, no room is left to doubt that the respondent was competent to file the ejectment petition and objection of the learned counsel for the petitioner in this regard is without any merit rather misconceived.
12. Section 15 of the Punjab Rented Premises Act, 2009 lays down the following grounds for eviction of a tenant:--- "15. Grounds for eviction.---A landlord may seek eviction of the tenant if:
(a) the period of tenancy has expired;
(b) the tenant has failed to pay or tender the rent within a period of thirty days after the expiry of the period stipulated in section 7;
(c) the tenant has committed breach of a term or condition of the tenancy agreement;
(d) the tenant has committed a violation of an obligatory under section 13;
(e) the tenant has used the premises for a purpose which is different from the purposes for which it has been let out; or
(I) the tenant has Sub-let the premises without the prior written consent of the landlord."
' In the instant case, the respondent/landlord had sought eviction of the tenant on the ground of expiry of lease agreement, default in payment of rent, non-enhancement of rent as per law, not permitting the landlord to inspect the demised premises and personal bona fide need. The ground of personal bona fide need to evict a tenant has been done away with by the newly promulgated Act i.e, Punjab Rented Premises Act, 2009 and now the grounds available to the landlord are those which have been enumerated in Section 15 supra.
13. As pointed out above, one of the grounds urged by the learned counsel for the respondents is expiry of the lease agreement. The original tendency agreement is dated 29.10.1988 (Ex.A.1), according to which the tendency had commenced from 1st of October, 1988 and the same expired on 30th of September, 1991. This being so, from 1st October, 1991, the tendency between the parties was to be governed under the provisions of Section 106 of the Transfer of Property Act, 1882, which lays down as under:-- "106. Duration of certain leases in absence of written contract or local usage. In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year terminable, on the part of either lessor or lessee, by six months' notice expiring with the end of a year of the tenancy; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on he part of the either lessor or lessee, by fifteen days' notice expiring with the end of a month tenancy.
' Every notice under this section must be in writing signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property."
' The learned first appellate court has rightly held that "thereafter no further rent agreement was executed between the parties and tendency had become oral one and the same would be governed on month to month basis and under Section 106 of the Transfer of Property Act, 1882 terminable on 15 days notice. Ejectment petition itself notice to the appellant", thus, on this score alone, the petitioner was liable to be evicted and has rightly been ordered to be evicted by both the learned courts below.
14. Next comes the question of Pagri. Unlike the lease agreement, this document is not an admitted document between the parties, rather the respondent/landlord has denied the same with vehemence. This being so, the petitioner was heavily burdened to discharge the onus on this issue, but the record suggests that he has miserably failed in this regard. No marginal witness or scribe of the said agreement has been produced by the petitioner to establish that any such document was executed between the parties. Although the petitioner claims that the marginal witnesses of the said document had died, yet no death certificate was produced to substantiate his claim in this regard. This being so, both the learned courts below have rightly discarded the said document. No exception can be taken to their findings in this regard.
15. In the light of above discussion, it appears that the evidence produced by the parties has properly been appreciated and evaluated by both the learned courts below. In doing so, they have not committed any illegality or irregularity, nor any jurisdictional defect has surfaced the record, therefore, this petition has no merit, which fails and the same is hereby dismissed.