MIRZA VIQAS RAUF, J. Pir Muhammad Manjh, petitioner through instant constitutional petition assails the vires of judgment and decree dated 18th of July, 2014, whereby the learned Additional District Judge, Rawalpindi Camp at Murree, while dismissing his appeal upheld the order dated 23rd of September, 2013 passed by learned Special Judge (Rent), Murree.
2. Precisely the facts necessary for adjudication of instant petition are that respondents No.1 & 2 preferred an ejectment petition in terms of Section 15 of The Punjab Rented Premises Act, 2009 (hereinafter referred as "The Act, 2009") seeking eviction of the petitioner from the suit property on multiple grounds including expiry of tenancy agreement. The petitioner moved an application for leave to contest wherein he asserted that he paid Rs.30,00,000/- to the original landlord/owner as a "pagri" and no notice in terms of Section 30 of "The Act, 2009" has been issued to him by the respondents. The leave to contest was granted and thereafter learned Special Judge (Rent) framed necessary issues from the divergent pleadings of the parties to the following effect :- ISSUES
1. Whether the tenancy agreement expire on 30-06-2013 and the petitioner is entitled to eviction of the respondent? OPP
2. Whether the respondent has due notice of change of ownership? OPP
3. Whether the petitioner is not maintainable in its present form? OPR
4. Whether the respondent is continuing permanent tenancy on pagri vide agreement dated 4-7-2005 with vested rights? OPR After framing of issues both the parties adduced their respective evidence in the form of oral as well as documents. On completion of evidence from both the sides and after hearing respective contentions, the ejectment petition was allowed vide order dated 23rd of September, 2013. The petitioner, being dissatisfied from the order of learned Special Judge (Rent) filed an appeal before the learned Additional District Judge, Rawalpindi Camp at Murree, however, the same was dismissed vide judgment and decree dated 18th of July, 2014, hence this petition.
3. Learned counsel for the petitioner submitted that the petitioner was in occupation of the suit premises since long and in this regard, he paid Rs.30,00,000/- as "pagri" to the previous landlord and the tenancy was thus permanent. Learned counsel while referring to Section 2(d) &
(e) of "The Act, 2009" contended that ejectment petition was incompetent. He added that change of ownership was not conveyed to the petitioner through legal mode, thus ejectment petition was not maintainable in view of Section 30 of "The Act, 2009". Learned counsel argued that the petitioner though successfully established his right qua the property and evidence to this effect has gone un-rebutted but the learned courts below without adverting to the relevant evidence directed the eviction of the petitioner. Learned counsel next contended that "pagri" is duly recognized under "The Act, 2009" and tenancy becomes irrevocable. In support of his contentions, learned counsel relied upon "Mst. HUMERA SAJID versus MUQARRAB KHAN PUNI and another" (2008 CLC 650) and "ABDUL JABBAR versus SALAHUDDIN and 4 others" (1985 CLC 2594).
4. Conversely, learned counsel representing respondents No.1 & 2 vehemently refuted the arguments raised by learned counsel for the petitioner. He added that tenancy between the parties is duly established on the record and the petitioner has badly failed to prove the payment of "pagri" to the previous landlord. Learned counsel contended that tenancy was for a fixed period which expired and petitioner cannot claim permanent possession of the suit premises on account of perpetual tenancy. Learned counsel maintained that there are concurrent findings of facts recorded by both the courts below which are based on proper appraisal of evidence so the same cannot be interfered with in exercise of constitutional jurisdiction. Reliance is placed on "MIRZA BOOK AGENCY through Managing Partner and others versus ADDITIONAL DISTRICT JUDGE, LAHORE and others" (2013 SCMR 1520), "NADEEM ZAFAR and others versus MUHAMMAD ISMAEEL and others"
(PLD 2012 Lahore 178) and "Hafiz MUHAMMAD SHAHID NAWAZ versus Hafiz MUHAMMAD SAEED" (2010 CLC 1941).
5. I have heard learned counsels for both the sides at considerable length and also perused the record with their assistance.
6. The eviction of the petitioner was sought on multiple grounds, some of those were though even not recognized by Section 15 of "The Act, 2009". The ejectment petition was, however, allowed on the ground of expiry of tenancy period. The petitioner resisted his eviction mainly on two grounds, firstly on account of lack of notice in terms of Section 30 of "The Act, 2009" regarding transfer of ownership and secondly that he had paid "pagri" to the previous landlord and as per tenancy agreement with him, his tenancy is of permanent character and he cannot be evicted subject to payment of agreed rent. This leaves following questions for determination of this Court :-
(i) Whether any notice under Section 30 of "The Act, 2009" was served upon the petitioner (tenant) regarding transfer of ownership of the respondents No.1 & 2 (landlords) or not?
(ii) Whether on account of payment of "pagri" and in view of tenancy agreement with the previous landlord, the status of the tenancy has become of permanent character and the petitioner (tenant) cannot be evicted?
7. Adverting to the point No.(i), it is observed that the respondents No.1 & 2 in their ejectment petition specifically asserted that they had sent a notice to the petitioner regarding change of ownership which remained unattended, however, in his application for leave to contest, which was granted and the same was treated as written reply in terms of Section 23 of "The Act, 2009", the petitioner denied any such notice. To this effect issue No.2 was framed by the learned Special Judge (Rent) and onus of proof was placed upon the respondents. Admittedly the tenancy between the parties was not registered in conformity with the provisions of "The Act, 2009" and the respondents No.1 & 2 have deposited fine in the Government treasury in terms of Section 9 of "The Act, 2009", so that their ejectment application should become entertainable. As per stance of respondents No.1 & 2, the suit premises was purchased by them through registered sale deed bearing No.378 dated 01st of October, 2012 (Exhibit-A7) from Muhammad Moazzam and the petitioner was occupying the premises as tenant under the previous owner. As the tenancy had expired so they informed the petitioner to vacate the suit premises as they do not want to continue the tenancy. They also sent a legal notice (Exhibit-A2) confirming their intention but the same was not responded, rather the petitioner instituted a civil suit against the previous owner without impleading respondents No.1 & 2 as party. The respondents No.1 & 2, however, moved an application under Order I Rule 10 of The Code of Civil Procedure (V of 1908) which was allowed and consequently they were made party in the said suit. It is evident from the record that notice (Exhibit A2) was duly served upon the petitioner through registered acknowledgment due dated 08th of March, 2013 which was tendered in evidence as Exhibit-A3. This aspect was even affirmed by the petitioner himself by way of a suggestion to respondent No.1, when he appeared as AW1 in the following manner :- {{URDU TEXT}} This leaves no doubt that due compliance was made to Section 30 of "The Act, 2009". Even otherwise non-compliance of Section 30 does not entail any penal consequences, having adverse effect upon the competency of ejectment petition. This Court in the case of "NADEEM ZAFAR and others versus MUHAMMAD ISMAEEL and others" (PLD 2012 Lahore 178), while dilating upon the implication of Section 30 of "The Act, 2009" observed as under:- "6. The examination of this provision of law reveals that it is consisted upon the two parts. In the first place, it requires that a written intimation shall be sent to the tenant informing him about the new ownership and secondly he shall also apply to the Rent Registrar for entering his name in the register as the landlord of the premises. Under sub section (2) of the Section, Rent Registrar, after receiving the application of the new landlord, shall inform the tenant through a notice about the transfer .of the ownership of the premises and the tenant shall not be, deemed to have defaulted in the payment of the rent if the rent due is paid or tendered to the new landlord within a period of 30 days from the date when the notice should in normal course have reached the tenant. It is nowhere provided in either part of section if no notice either to tenant or to Rent Registrar is sent whether ejectment petition would be liable to be dismissed. Although in section the word "shall" has been used, but it appears that the intention of the legislature while enacting this provision of law could be that the cases of the parties should not be thrown out of the court on the basis that notice of change of ownership has not been sent. This intention of the legislature is also evident from the preamble of the Act ibid which reads as under:-- "Whereas it is expedient to regulate the relationship of landlord and tenant, to provide a mechanism for settlement of their disputes in an expeditious and cost effective manner and for connected matters." (emphasis provided).
Thus it follows that purpose of enactment is to provide expeditious remedy in rent matters but it does not allow expeditious disposal at cost of technicalities.
7. In view of this legal position of the law as well as rules of interpretation the word "shall" used in section shall be read as "May". This interpretation of the Section finds further support from the other facts that the 'question of default in the payment of rent is to be determined by the court after recording the evidence of the parties or in , cases where the default is evident from the record or in case where relationship of landlord and tenant is denied by the parties. This determination has to be undertaken even if no notice as required is sent. The purposes of the enactment of this section is to regulate and register the new landlord so that the dispute of denial of tenancy could be avoided which was a consistent practice when the repealed law was in the field. In those cases the ejectment petition remained pending in the court for years for determination of title of the landlord.
Keeping in view this expediency and mechanism provided for expeditious disposal of the rent matter, it is held that ejectment petitioner may not be non suited on the ground that he did not send intimation regarding new ownership either to the tenant or to the Rent Registrar, particularly, when tenant had notice of the same when ejectment petition is instituted against him.
8. Now coming to the facts of the instant case, it is noticed that the petitioner had served a notice upon the respondent on 21-5-2009 informing him that he had purchased the disputed property from his brother Shahid Hussain and raised demand of the payment of rent. The petitioner to this extent had complied with one requirement of Section 30 of the Act ibid about sending intimation but he did not apply for his registration as new landlord. In view of the interpretation of section-30 supra, the petitioner cannot be penalized for this disobedience as this non-compliance did not materially affect the rights of the respondent who has already denied the relationship of landlord and the tenant between him and the petitioner. Moreso, the respondent has admitted as R.W.1 that prior to the institution of the ejectment petition he had the knowledge that his previous landlord Shahid Hussain, the brother of present petitioner, had sold the property to Zafar Hussain ejectment petitioner. In view of this admission of the respondent the petitioner could not be non-suited merely on the ground that he did not apply to the Rent Registrar for entering his name in the relevant register as new landlord. In this scenario the learned First Appellate Court while dismissing the ejectment petition on this score has proceeded against the spirit of law, as such, the judgment is not sustainable."
Reference can also be made to "Hafiz MUHAMMAD SHAHID NAWAZ versus Hafiz MUHAMMAD SAEED"
(2010 CLC 1941). In view of above, no exception can be drawn from the findings of both the courts below with regard to service of statutory notice. issue it is noteworthy that relationship of tenancy between the parties is admitted as is evident from the statement of AW1. It is also an admitted fact that petitioner was in occupation of the suit premises as tenant under the previous owner Muhammad Moazzam.
9. Reverting to the moot point, it is observed that prior to promulgation of "The Act, 2009", for regulating the matters relating to tenancy as well as eviction of tenants in the Province of Punjab, The Punjab Urban Rent Restriction Ordinance (VI of 1959) (hereinafter referred as "The Ordinance, 1959") was in force which provided entirely different grounds for eviction of tenant from the premises, as embodied in Section 13 of "The Ordinance, 1959". The term "pagri" was not recognized by the said law. It was for the first time that by way of "The Act, 2009" the term "pagri" was provided a statutory protection. "The Act, 2009" was introduced with entirely new preamble and object and even a change was brought to the grounds of eviction and for this purpose, Section 15 was incorporated which for the first time acknowledged the expiry of tenancy period as one of grounds for eviction. Section 2 of "The Act, 2009" deals with definition clause and sub-section (e) defines the term "pagri" as under :- "(e) "pagri" includes ay amount received by a landlord at the time of grant or renewal of a tenancy except advance rent or security"
(Underlining is supplied for emphasis). in the instant case. The same is also defined in Section 2(d) of "The Act, 2009" which reads as follows :- "(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"
10. Section 6 of "The Act, 2009" lays down the necessary contents of tenancy agreement and as per clause (g) of sub-section 1 of the said section, it is one of the requirement of law that amount of advance rent, security or "pagri", if any, paid shall be mentioned in the tenancy agreement. It is the stance of the petitioner that he paid an amount of Rs.30,00,000/- as "pagri" to Nauman Anwar through agreement (Exhibit-R6) and his tenancy is of permanent character in view of tenancy agreement (Exhibit-R8) executed with previous owner Muhammad Moazam. Record is clearly indicative of the fact that Nauman Anwar was a tenant in the suit premises under original owner Zulfiqar Hussain from whom the title of the suit premises devolved upon Muhammad Moazam, i.e. the vendor of respondents No.1 & 2. When statement of petitioner (RW4) is examined, that by itself removes the shadow of clouds. The relevant extract from the same is as under :- {{URDU TEXT}} In view of admitted position that "pagri", if any, was paid to Nauman Anwar, who was admittedly a tenant and not a landlord, no other opinion can be formed except that such amount cannot be termed as "pagri" in the light of Section 2(e) of "The Act, 2009". Even otherwise the petitioner himself admitted in his cross-examination that tenancy agreements which were executed with Muhammad Moazzam were regulated on yearly basis and every such agreement ended on 30th of June of each year.
11. As already observed above that as per contents of tenancy agreement provided in Section 6 of "The Act, 2009" it is one of the pre-condition for a valid agreement to describe the period of tenancy. No provision in "The Act, 2009" exists which postulates that in case of payment of "pagri" the tenancy will be treated as in perpetuity. The case law referred by learned counsel for the petitioner is not at all relevant to the preposition in hand as the principles enunciated in the said cases are founded on entirely different facts as well as law. Guidance in this respect, if needed can be sought from the judgment of Hon'ble Supreme Court of Pakistan in the case of "MIRZA BOOK AGENCY through Managing Partner and others versus ADDITIONAL DISTRICT JUDGE, LAHORE and others" (2013 SCMR 1520) wherein while dealing with similar preposition it was held :- "3. As regards the question that the tenancy is for an indefinite period of time, learned counsel for the appellant has not been able to show us, if the alleged tenancy has been created under some registered instrument in which there is any such stipulation only for the reason that some pagri allegedly has been paid to the respondent or his predecessor-in-interest or to a person from whom the title has devolved upon the respondent, would by itself not make the tenancy in perpetuity. But this shall not foreclose the right and remedy if any available to the appellants for the recovery of the said amount of pagri from the person who is liable to return if permissible under the law, for which the appellant may bring an independent action, subject to the law (including the law of Limitation) before the appropriate forum. However, in the facts and circumstances, we are not inclined to interfere in the instant matter. Resultantly, this appeal is, accordingly, dismissed."
The petitioner thus cannot claim the tenancy in perpetuity merely as a premium on account of alleged payment of "pagri". He, however, is at liberty to recover the said amount of "pagri" from the person who is liable to return by bringing an independent action, subject to law, before the appropriate forum, as is observed in the judgment supra.
12. There are concurrent findings of facts recorded by both the learned courts below which apparently do not suffer any legal infirmity. The petitioner has failed to point out any misreading and non-reading of evidence by the courts below, while arriving at their conclusion and directed the eviction of the petitioner from the suit premises. The constitutional jurisdiction is always exercised with great care and caution in such matters as the same cannot be used as a substitute for an appeal neither the evidence duly appreciated by the learned courts below can be re- appraised on the ground that some other view is possible in writ jurisdiction. Appraisal of evidence is the function of courts below and if the findings are based on proper appraisal of evidence then the same cannot be interfered with lightly in exercise of writ jurisdiction. The party approaching the High Court under Article 199 of The Constitution of Islamic Republic of Pakistan, 1973 has to demonstrate that there is some gross misreading or non-reading of evidence or any jurisdictional defect floating on the surface of the record but in the instant case all these preconditions are clearly missing.
13. The nutshell of the above discussion is that the findings of both the courts below are in consonance with law calling for no interference in exercise of writ jurisdiction. The petitioner has failed to point out any misreading or non-reading in the judgments of both the courts below, warranting any interference by this Court, while exercising constitutional jurisdiction. This being so, the instant petition fails and is dismissed with no order as to costs.