Shujaat Ali Khan, J: - Unnecessary details apart, Sh. Abdul Waheed (predecessor-in-interest of respondents No.1 to 5) filed an Ejectment Petition against the petitioner qua Shop No.5, Madina Masjid, Nagina Market, Muslim Bazar , Sargodha (hereinafter to be referred as the rented premises) which was accepted by the learned Special Judge (Rent), Sargodha vide order , dated 05.05.2016, against which the petitioner filed an appeal but without any success as the same was dismissed by the learned Additional District Judge, Sargodha (learned Appellate Court) through judgment & decree, dated 22.12.2016; hence this petition.
2. Learned counsel for the petitioner submits that since the predecessor-in-interest of respondents No.1 to 5 filed Ejectment Petition without seeking permission from the landlord-mosque regarding subletting of the rented premises to the petitioner , the same was not maintainable in view of section 2(l)(iii) of the Punjab Rented Premises Act, 2009 (the Act, 2009) and that earlier the Ejectment Petition filed by the landlord-mosque was dismissed, thus, the Ejectment Petition filed by predecessor-in interest of respondents No.1 to 5 was not maintainable.
3. In addition to his oral submissions, learned counsel for the petitioner have also submitted written arguments inter-alia raising the points that when tenancy between the parties was not established through convincing evidence the Ejectment Petition was not maintainable; that sub-tenancy could not be created without consent/approval of the landlord whereas in the present case predecessor-in-int erest of respondents No.1 to 5 treated the petitioner as sub-tenant without fulfilling the requisite requirement, thus, the Ejectment Petition filed by him was not tenable; that the mosque, being the landlord, was necessary party but it was not arrayed as such; that though learned Appellate Court held that agreement, dated 14.04.2012, was not produced by the respondents but even then the appeal filed by the petitioner was dismissed; that admittedly the alleged tenancy between the parties was not in consonance with the provisions of the Act, 2009, thus, no eviction order could be passed without payment of 10% fine and that though learned Appellate Court observed that no sub-tenancy could be created without consent of the landlord-mosque but even then dismissed the appeal of the petitioner. In support of their submissions, learned counsel have relied upon the case reported as Bara Khan v. Munir Ahmed (NLR 1990 Civil 74).
4. Conversely , learned counsel representing respondents No.1 to 5, while defending the impugned decisions of the fora below , contends that the petitioner being sub-tenant cannot challenge status of predecessor-in-interest of respondents No.1 to 5 as landlord especially when no objection was raised by the landlord-mosque; that the plea of the petitioner that the Ejectment Petition filed by predecessor-in-interest of respondents No.1 to 5 was not maintainable, is not sustainable; that the petitioner adopted inconsistent pleas at different times before various fora; that the petitioner has been paying rent to predecessor-in-interest of respondents No.1 to 5 till the year 2003 but refused to pay the same thereafter , thus, he fell within the category of defaulter; that tenancy in favour of predecessor-in-interest respondents No.1 to 5 also stands affirmed from the agreement executed between the mosque-landlord and predecessor-in-interest of respondents No.1 to 5 in the year 2012; that when the petitioner was inducted as sub-tenant with the consent of the landlord-mosque, he, as sub-tenant, could not challenge the status of respondents No.1 to 5 as landlords. In addition to his oral submissions, learned counsel has relied upon the cases reported as Mian Muhammad Saeed v. Muhammad Mansoor Ali Khan and others (1991 SCMR 1209 ), Muhammad Nayab v. Additional District Judge, Rawalpindi and 2 others (2016 MLD 1095 ), Hakim Khushi Muhammad v. Mst. Talaat Rana and 7 others (2010 CLC 819), Messrs Akbar Brothers through Managing Partner v.
M. Khalil Dar through Legal Heirs (PLD 2007 Lahore 385), Mashkoor Ahmad alias Mashkoor Hussain through Legal Heirs and others (2001 YLR 2915 ), Minochar N. Kharas represented by Legal Heirs v. Ali Hassan Manghi and 6 others (1986 CLC 1378 ) and Kafayatullah v . Muhammad Inayat (1983 CLC 3316 ).
5. I have heard learned counsel for the parties at considerable length and have also gone through the documents, annexed with this petition, as well as the case-law cited at the bar.
6. The main thrust of the arguments adva nced by learned counsel for the petitioner is based on section 2(l)(iii) of the Act, 2009 which for convenience of reference is reproduced herein below: - "2. Definitions.- (a)...
(b)...
(c)...
(d)...
(e)...
(f)...
(g)...
(h)...
(i)...
(j)...
(k)...
(l) "tenant" means a person who undertakes or is bound to pay rent as consideration for the occupation of a premises by him or by any other person on his behalf and includes; (i)......
(ii)......
(iii) a sub-tenant who is in possession of the premises or part thereof with the written consent of the landlord"
According to the afore-quoted provision a sub-tenant is a person who is enjoying physical possession of the rented premises or part thereof with the written consent of the landlord. There is no cavil with the preposition that there is no written consent on the part of the landlord-mosque in favour of respondents No.1 to 5 to permit the respondents to induct the petitioner as sub-tenant but at the same time it is of equal importance that when the original tenancy between the parties was oral in nature as to whether it was incumbent upon respondents No.1 to 5 to get written permission from the landlord-mosque to sub-let the rented prem ises to the petitioner or not. To appreciate this point, I have gone through the entire file. In the application filed by the petitioner seeking leave to contest, he averred that he got the rented premises on rent from the management of Madina Masjid, Nagina Market, Sargodha 20 years ago. In the said application the petitioner admitted that though the rent was being paid by him but the receipt was being issued in the name of predecessor-in-interest of respondents No.1 to 5. It does not appeal to a man of prudent mind that the rent was being paid by the petitioner but the receipts were issued in the name of somebody else. From the above fact, it is crystal clear that claim of the petitioner that he had been paying monthly rent, stood contradicted with written documents contents whereo f were admitted by the relevant witnesses. A learned Division Bench of this Court in the case reported as Mehraj Din and another v. Muhammad Yasin and 2 others (PLD 1968 Lah. 20) while dealing with a question relating to maintainability of an ejectment petition against sub-tenant who was engrafted in the rented premises without permission of the landlord has inter alia decided as under:- "For all these reasons and looked at from whatever point of view, the conclusion is inescapable that a sub-lessee in such a situation is a proper party to be impleaded in an ejectment application. When he is so impleaded, the jurisdiction of the Rent Controller will not be ousted simply because the sub-tenancy is unauthorised. Rather the unauthorised sub-tenancy will give jurisdiction to the Rent Controller to pass an order directing the landlord to be put in possession of the building or the rented land. Nor the argument that such an illegal sub-lessee is not a tenant under the Ordinance, can affect on the jurisdiction of the Rent Controller because though not a tenant, still being a person bound or to be bound by the order of eviction against the main lessee the jurisdiction does not under go any impairment."
If the objection of the petitioner regarding maintainability of ejectment petition against him is adjudged on the touchstone of the afore-quoted judgments, the same appears to be worthless.
7. It is imperative to note over here that the petitioner , with a view to establish that he being tenant the receipt regarding payment of monthly rent was to be issued in his name, filed a civil suit which was dismissed by the learned Civil Judge, Sargodha vide judgment & decree, dated 14.03.2012 against which he filed an appeal which too met with the same fate vide judgment & decree, dated 24.01.2013. When the petitioner failed to establish his right before the court of plenary jurisdiction that he is tenant of the landl ord-mosque, he had no cheeks to dub himself so.
8. It is astonishing to note that under clause 13 of his application for leave to contest, the petitioner admitted that on 11.07.2005 predecessor-in-interest of respondents No.1 to 5 succeeded to get a written tenancy in his name.
Undeniably , the vires of the said document have not been challenged by the petitioner till date meaning thereby that respondents No.1 to 5 are tenants of the mosque-landlord.
9. It is not out of place to mention over here that while filing affidavit-in-evidence the petitioner admitted that at the time of his departure to Greece, in the year 1978, predecessor -in-interest of respondents No.1 to 5, in connivance with Muhammad Salim (the then President of the Mosque) started to tease him and issued receipts regarding payment of rent in the name of predecessor-in-interest of respondents No.1 to 5. At the cost of repetition, it is observed that when the petitioner himself admitted that the receipts were being issued in the name of predecessor- in-interest of respondents No.1 to 5, he cannot claim himself to be tenant of mosque-landlord.
10. During the course of cross-examination, the petitioner showed his lack of knowledge about detail of his foreign visits and change of possession of the rented premises to the predecessor-in-interest of respondents No.1 to 5 and vice-versa . If the petitioner was tenant of the mosque-landlord, he was supposed to be well-versed with change of his possession with corresponding dates.
11. Another important aspect of the matter is that in the earlier part of his cross-examination, the petitioner claimed that he purchased lease rights from one Abdul Shakoor but in the latter part, he admitted that the stamp papers used for preparation of the agreement qua purchase of lease rights were issued in the name of predecessor-in- interest of respondents No.1 to 5. It is well established by now that when oral assertion stands rebutted by a written document preference always goes in favour of the written document.
12. A cursory glance over the suit filed by the petitioner , in the year 2004, shows that he sought declaration claiming himself to be tenant of the mosque which was dismissed by the learned Civil Judge, Sargodha through consolidated judgment & decree, dated 14.03.2012, against which he as well as predecessor-in-interest of respondents No.1 to 5 filed three separate appeals which too were dismissed by the learned Appellate Court through judgment & decree, dated 24.01.2013. Thus, stance of the petitioner that the appeal filed by the petitioner was accepted, goes against the record.
13. Now coming to plea of the petitioner that since the earlier Ejectment Petition filed by predecessor-in-interest of respondents No.1 to 5 was dismissed, the Ejectment Petition out of which present proceedings have emanated was not maintainable, I am of the view that a perusal of order, dated 02.03.2007 passed by the learned Rent Controller, Sargodha shows that predecessor-in-interest of respondents No.1 to 5 withdrew the Ejectment Petition with a view to pursue the already instituted civil suit. Had the said Ejectment Petition been decided after full-fledge trial the same could be used as an impediment against the respondents but since the same was withdrawn with a view to pursue the civil suit, dismissal of said Ejectment Petition had no bearing upon the present proceedings.
14. Inconsistent attitude of the petitioner is evident from the fact that in the present proceedings he is of the view that the ejectment proceedings could only be filed by the landlord-mosque but while filing application seeking leave to contest in the Ejectment Petition filed by the landlord-mosque he took clear cut stance that since the landlord- mosque is not a registered institution rather it is being run under the Partnership Act the Ejectment Petition on its behalf was not maintainable.
15. According to statement of PW-4 (real son of late President of the mosque) brought on record by the respondents through a Miscellaneous Application (C.M. No.2 of 2018) the monthly rent has been paid by predecessor-in-interest of respondents No.1 to 5. He also affirmed the factum of execution of agreement between predecessor-in-interest of respondents No.1 to 5 and the landlord-mosque, in the year 2005.
16. Now coming to the case-law cited by the learned counsel for the petitioner I am of the view that the same is distinguishable from the facts and circumstances of the present case inasmuch as in the referred case the lease agreement between the landlord and tenant was in written form whereas in the case in hand the original tenancy between the predecessor -in-interest of respondents No.1 to 5 and the mosque-landlord was oral in nature. Further , the Apex Court of the country in the case of Mian Muhammad Saeed (supra ) has held that tenant cannot resist ejectment petition while challenging the status of the landlord.
17. The discussion made in the fore-going paragraphs leaves no ambiguity that as a matter of fact predecessor-in- interest of respondents No.1 to 5 was tenant under the landlord-mosque and the petitioner entered the rented premises as sub-tenant.
18. As a necessary corollary to the discussion made in the afore-going paragraphs I see no merit in this petition.
Resultantly , the same is dismissed with no order as to costs.