Through this single order, I intend to decide titled writ petition alongwith connected Writ Petition No. 5583 of 2017 as subject matter of both writ petitions and parties to the lis are same as well as have been arisen out of same impugned order and judgment in which common questions of law and facts are involved.
2.Through this writ petition, the petitioner has challenged the legality of order dated 20.01.2017 passed by the learned Special Judge (Rent), Lahore whereby application for leave to contest filed by the petitioner was dismissed and ejectment petition of Respondent No. 1 was accepted subject to return of commercialization fee amounting to Rs. 12,422,500.00 to the petitioner and judgment dated 20.02.2017 passed by the learned Addl. District Judge, Lahore dismissing the appeal of the petitioner while granting six months' time for vacation of the demised premises commencing w.e.f.
20.01.2017.
3.Brief facts of Writ Petition No. 7386/2017 are that Respondent No. 1 (ejectment petitioner to be referred hereafter as Respondent No. 1) has filed ejectment petition on 11.11.2016 against the petitioner (respondent tenant to be referred hereafter as petitioner) under Section 19 of the Punjab Rented Premises Act, 2009 in respect of House No. 98-A/B-3, Gulberg-III, Lahore (demised premises). The petitioner has obtained the demised premises on rent through registered rent agreement dated 25.09.2010 for a period of six years uptill 09.11.2016. Respondent No. 1 served a legal notice dated 18.06.2016 to the petitioner through registered post AD for vacation of the rented premises on target date i.e.09.11.2016 and, thereafter, filed ejectment petition on the sole ground of expiry of tenancy period. The petitioner filed application for leave to contest asserting therein that the tenancy agreement has been extended for further six years; that the petitioner has paid advance rent of six months and also spent a huge amount for establishment of business as well as in getting it declared as a commercial building; that in the presence of first ejectment petition second ejectment petition is not maintainable; that no notice for vacation of the demised premises has been served upon the petitioner The learned Special Judge (Rent), Lahore vide order dated 20.01.2017 dismissed the application for leave to contest of the petitioner and accepted the ejectment petition directing Respondent No. 1 to return commercialization fee of Rs. 12,422,500.00/- to the petitioner and also directed to the petitioner to hand over the demised premises to Respondent No. 1 within 30 days of passing the final ejectment order. Petitioner filed Writ Petition No. 2585/2017 for seeking direction against Police harassm ent which was subsequent withdrawn on 03.02.2017 and against the said order of ejectment, the petitioner filed an appeal under Section 28 of the Punjab Rented Premises Act, 2009, which was also dismissed by the learned Addl.
District Judge, Lahore vide judgment dated 20.02.2017 while granting six months' time for vacation of demised premises. Petitioner being dis-satisfied by the judgment of the appellate Court challenged it through W.P.No. 7386 of 2017.
4.Respondent No. 1 (landlord) has also filed Writ Petition No. 5583/2017 challenging the impugned judgment dated 20.02.2017 passed by the learned Addl. District Judge, Lahore to the extent of grant of extension in time upto six months for vacation of the demised premises.
5.Learned counsel for the petitioner submits that second ejectment petition in presence of first ejectment petition is not maintainable; that the tenancy period was renewed orally by the attorney of the respondent and the petitioner has deposited advance rent of six months @ Rs. 3,36,000/-per month in the account of Respondent No. 1 after deducting the taxes. That the learned Courts below have not taken into account those fact and have illegally passed the ejectment order and also have not provided reasonable time for vacation of the demised premises, as such, the impugned order and judgment of the learned Courts below are against the law and facts of the case and also based on surmises and conjectures.
6.Learned counsel for Respondent No. 1 submits that second ejectment petition is maintainable; that the period of tenancy has been expired on 09.11.2016 which was not further renewed and a, fresh cause of action was accrued against the petitioner; that learned. appellate Court has no jurisdiction to give six months' time for vacation of the demised premises whereas no provision is available in the Punjab Rented Premises Act, 2009 granting any jurisdiction to the Court to allow six months' time; that no oral agreement regarding extension of period of tenancy exists between the parties; that the impugned order and judgment of the learned Courts below are in accordance with law to the extent of allowing the ejectment petition but the learned appellate Court has illegally granted six months' time for vacation of the demised premises which is not in consonance with any provision of Punjab Rented Premises Act, 2009 and the same deserved reversal to the extent of enlargement of the time for vacation of the rented premises.
7.I have heard the arguments of the learned counsels for both the parties and gone through the record with their able assistance.
8.Admittedly House No. 98A-B-3 Gulberg-III, Lahore was rented out to the petitioner for a period of six years uptill 09.11.2016, relevant portion 'Whereof is as under: The lessor leases to the lessee and the lessee accepts to take on lease the demised premises for a period of 6 years, commencing on 10 November 2010 and ending on 9th November, 2016, but shall be renewable for a further period of three years with mutual consent." and rate of rent is also admitted between the parties. Respondent who is residing in America send a notice to the petitioner/tenant intending not to extend the tenancy and also for the eviction of the rented premises on 18.06.2016. That legal notice went un-responded by the petitioner which culminated into filing of the ejectment petition. The main controversy involved in this petition is firstly regarding the renewal of Rent Agreement for further term of six years and secondly whether the appellate Court is vested with any Power to grant or enlarge the time for vacation of the rented premises.
The learned counsel for the petitioner while arguing the case submits that the lease period has been extended orally for a further period of six years commencing from 10.11.2016 and, in this respect, the petitioner has made deposit of six months' advance rent @ Rs. 3,36,000/- per month in the bank account of Respondent No. 1, whereas, Respondent No. 1 submits that he came into Pakistan in the mid of October, 2016 obtained his bank account statement and on perusal of same it was disclosed to him that an un-authorized amount of Rs. 10,69,270/- was deposited by the petitioner and Respondent No. immediately after having deducted the outstanding rent due amount handed over Cheque No. SA0047720910 amounting to Rs. 14,24,515/-to the petitioner who has accepted the same and said amount was got transferred in his account. Respondent No. 1 has placed on record the copy of Bank Statement (balance sheet) as well as cheque which shows that amount of cheque was duly encashed by the petitioner, as such, the stance taken by the learned counsel for the petitioner that orally rent agreement was extended and he deposited six months' rent in the account of Respondent No. 1 stand falsified/negated and it stood proved that no renewal of rent agreement was entered into between landlord and tenant.
9. Admittedly, Respondent No. 1 earlier has filed first ejectment petition against the petitioner on the ground of willful default and violation of terms and conditions of the lease agreement, unauthorized alteration in the demised premises whereas second ejectment petition was filed by Respondent No. exclusively on the fresh cause of action i.e. the expiry of tenure of tenancy under Section 15(a) of the Punjab Rented Premises Act, 2009. Thus arguments of the learned counsel for the petitioner that second ejectment petition in the presence of first ejectment petition is not maintainable is apparently misconceived, as the first ejectment petition was filed inter-alia on the grounds of willful default and violation of terms and conditions of the rent agreement whereas second ejectment petition was filed only on the ground of extinguishment of lease period which is a fresh cause of action accrued/matured during the pendency of first petition and it is settled law that on the new cause of action the second ejectment petition is maintainable and law does not bar the filing of second ejectment petition in the light of diction laid down by the Hon'ble Supreme Court of Pakistan in case titled as Muhammad Shafi vs. Haji Shaista Khan (2002 SCMR 480) wherein it is held in Para No. 7 as under:-- "We are not persuaded to agree with the said submission as the first eviction application was filed on personal bona fide use regarding the Khokha but subsequently another eviction application was moved on the main ground of reconstruction coupled with personal bona fide use of the Khokha as well as the shop and thus it was maintainable. In this regard, we are fortified by the dictum laid down in Dost Muhammad v. Muhammad Shabbir Hussain (1981 SCMR 528) wherein it was held that "circumstances having radically changed after dismissal of first application question of maintainability of second application, held, fell to be examined in context of changed circumstances and case did not fall within mischief of Section 14."
As such, the above argument of learned counsel is without any force and same is hereby repelled.
10. So far as the arguments of the learned counsel for the petitioner that a reasonable time has not been given by the learned appellate Court for vacation of the demised premises as the petitioner's company has to make alternate arrangement to shift the establishment of its main head office from the demised premises to some other suitable place is concerned, suffice it to say that rent agreement stood expired on 09.11.2016 and no evidence or document has been produced which may prove any renewal or extension of rent agreement by Respondent No. I rather Respondent No. I issued a legal notice to the petitioner for vacation of the demised premises which was received by the petitioner, followed an ejectment petition on the ground of expiry of tenancy period. Even otherwise, mere filing of an ejectment petition in itself was a sufficient notice to the tenant for termination of rent deed as settled by Hon'ble Supreme Court of Pakistan in case titled as Major (Retd.) Muhammad Yousaf vs. Mehraj- ud-Din & Others (1986 SCMR 751). Similar view has been taken by this Court on the case reported as Rahat Iqbal vs. Allauddin & Another (2010 MLD 1988), as such, the petitioner was well cognizant about the rigorous of the legal proceeding and it should have made arrangement bonafidely for vacation of the demised premises but no such honest effort is shown from the record and now petitioner cannot take stance about the non-service of legal notice regarding the termination of rent agreement as well as the vacation of demised premises. Further, despite the termination of the tenancy, the petitioner/tenant is occupying the rented premises without the consent of the landlord and the status of such tenant is not better than an illegal occupant and it is well settled by now that law does not favour the illegal occupant.
11. Next point for resolution before this Court is to determine the length of reasonable time ought to be given for facilitating the sitting tenant to make alternate arrangement for its settlement. From the perusal of Punjab Rented Premises Act, 2009, no such provision is available for giving any time to a tenant for vacation of the demised premises. The grant of time is a discretionary kind of jurisdiction of the Court and its exercise is interlinked with the previous as well as the present conduct of the tenant during the judicial proceeding which carries a titling significance having direct bearing upon the assessm ent of the reasonableness of time with judicial application of mind to grant equitable relief according to the entitlement of the party whereas in this case ejectment order was passed against the petitioner on 20.01.2017. Feeling apprehension of eviction as well as the harassm ent or pressure of Police, the petitioner filed Writ Petition No. 2585 of 2017 before this Court and the learned counsel for the petitioner under instructions of his clients has submitted that the petitioner is ready to vacate the demised premises subject to the payment of commercialization fee/amount settled by the learned Special Judge (Rent), Lahore as well also to restrain the Police Official from harassing the petitioner. This Court passed an order dated 27.01.2017 which is reproduced as under:- "Learned counsel for the petitioner. submits that the petitioner is ready to vacate the demised premises subject to the payment of the amount which has been settled by the learned Special Judge (Rent), Lahore; that. Respondents No. 2 & 3 on the behest of Respondent No. 4 are harassing the petitioner.
2. Notice be issued to the respondents to file reply to this petition for 03.02.2017.
C.M.No. 1 of 2017
3. Subject to notice, Respondents No. 2 & 3 are restrained to harass the petitioner in any manner whatsoever. However, if any legal proceedings are pending against the petitioner, they may proceed in accordance with law."
On 03.02.2017, both the parties appeared before this Court and at the very outset Respondent No. 4/landlord showing his bona fide presented a cheque amounting to Rs. 1,24,22,500/- regarding the amount of commercialization fee before this Court to be handed over to the petitioner but the learned counsel for the petitioner/tenant took surprisingly summer sault and refused to accept the same and opted to withdraw the said writ petition. For ready reference, order dated 03.02.2017 is reproduced as under:- Mr. Pervez I. Mir, Advocate filed power of attorney on behalf of Respondent No. 4 who is present in person. Respondent No. 4/landlord states that he is ready to pay the amount of Rs. 1,24,22,500/- as directed by the learned Special Judge Rent, Lahore vide final order dated 20.01.2017 and he produced original cheque. When the above proposition confronted to the learned counsel for the petitioner he stated that the petitioner has filed an appeal against the final order dated 20.01.2017 which is pending before the learned Addl. District Judge, Lahore, in which, restraining order has been passed on 30.01.2017, at this stage, the learned counsel for the petitioner wishes to withdraw this writ petition.
2. Dismissed as withdrawn. However, the learned appellate Court is directed to decide the appeal within 15 days positively under intimation to the Deputy Registrar (Judicial) of this Court.
As the learned counsel for the petitioner under instruction made a statement in Writ Petition No. 2595/2017 that the petitioner is ready to vacate the demised premises subject to payment of commercialization fee of LDA. Respondent/landlord in response to the above statement presented a cheque equivalent to the commercialization fee for its handing over to the petitioner/tenant.
Where after, the petitioner is debarred to challenge the impugned order as the principle of estoppel is duly applicable against the petitioner to resile from the earlier statement made in the judicial proceedings before this Court.
Today i.e. 20.03.2017, Respondent No. 1/landlord again made a generous offer to grant four months' time to the petitioner/tenant to vacate the demised premises from the date of order of the learned Special Judge Rent, Lahore i.e., 20.01.2017 whereas learned counsel for the petitioner submits that one year time may be granted but later on, he under instructions of his client stated that matter may be decided on merits and such an astonishing conduct shows contumacious intention of the petitioner to prolog or perpetuate its possession over the rented premises for infinitum whereas, the tenancy period stood expired as back as on 09.11.2016 and there is no extension of lease agreement available on record and normally such a contumacious conduct tainted with malice dis-entitle, a tenant for any discretionary relief. Even though the conduct of the petitioner militate against the grant of discretionary relief yet this Court is of view that some reasonable time should have been granted to the petitioner and in my considered opinion as well as the offer of landlord four months (120 days) time from the date of eviction order reasonably serve the ends of justice.
The Hon'ble Supreme Court has also defined the reasonableness of time and rendered judicial pronouncement on the issue by considering four months (120 days) time fairly reasonable for vacation of rented premises in the cases reported as Munir Ahmed vs. Shahid Mahmood (1994 SCMR 360) and Khawaja Muhammad Razzak vs. Dr. Sultan Mehmood Ghouri & Another (2007 SCMR 1866), held as under:
3. We have considered the submissions of both the parties. While the High Court may be justified in dismissing the constitutional petition of the respondent, there was no lawful warrant for allowing usually long period of eighteeh months for vacating the premises, which on the face of record, is most unreasonable and unlawful. In order to maintain a balance between the parties, we would set aside the order of the High Court to the extent of allowing eighteen months time for vacating the premises and substitute it by awarding 120 days from the date of the order of the High Court.
Further reliance is placed on the cases reported as Mrs. Keays Byrne vs. M. Obaidullah Khan (PLD 1959 Lahore 146), Sattar vs. Zaki Ahmed (1995 MLD 1146), New Trading Company vs. Trustees of Haji Sir Abdullah Haroon Waqf No. 1 (1997 CLC 640) and Malak Zahoorul-Haq through Special Attorney vs. Ilnd Addl. Judge, Sanghar & 2 Others (2015 CLC 468).
As such, the period of six months' for vacation of the demised premises awarded by the learned appellate Court is unreasonable which has no backing of the Punjab Rented Premises Act, 2009 as well as any other law, therefore, the same is not sustainable in the eye of law, as such, the same is reversed only to the extent of time and in the light of the dictum laid down by the Hon'ble Supreme Court of Pakistan supra as well as offer of the landlord and in my opinion four months' time commencing from the date of eviction order dated 20.01.2017 is considered fair enough for making alternate arrangement subject to payment of monthly rent as well as the other bill of amenities installed at the rented premises.
12.The learned counsel for the petitioner has not been able to point out any illegality or material irregularity, in the impugned order/judgment passed by the learned Courts below and has also not identified any jurisdictional defect.
13.In view of above, this Writ Petition No. 7386 of 2017 titled "Tanveer Spinning and Weaving Mills vs. Tariq Saeed etc." is dismissed being devoid of any force. Writ. Petition No. 5583/2017 is hereby partially allowed. Order dated 20.02.2017 passed by learned appellate Court is hereby modified to the extent of time period for vacation of demised premises from six months to four months commencing from the date of eviction order dated 20.01.2017. No order as to costs.