ALI BAQAR NAJAFI, J.---- Through this Constitutional petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 concurrent findings recorded by the Special Judge (Rent) as well as by the learned Addl. District Judge, Lahore dated 18.05 .2013 and 30.01.2016, respectively , have been challenged whereby the ejectment petition filed by respondent No.1 against the petitioner in respect of the property measuring 6-marla (described in the petition) situated at Maryam Siddiqa Colony , Shandara Town, Lahore was allowed.
2. Briefly , the facts giving rise to the filing of the present petition are that the respondent No.1 hypothetically got the possession of said house of 6-marla from the petitioner through a Usufruct Mortgaged Deed dated 30.01.2009 against Rs.1,00,000/- but the said document also contained a condition that during the period of five years the petitioner would continue to pay Rs.6000/ - as monthly rent before 16th of every month to the respondent No.1 from whom she got the possession as a tenant and that after re-payment of the said mortgage money to respondent No.1, petitioner will convert the possession of the said property as the owner . Meanwhile, the petitioner also received Rs.30,000/- from respondent No.1 as additional mortgage money on 13.02 .2010 and the monthly rent was re-settled at Rs.8000/- per month paya ble by the petitioner to respondent No. 1. But when it was not paid, ejectment petition was filed by the respondent No.1 against the petitioner , on 29.04.201 1 on the ground of default in payment of rent for 17 months; breach of terms of agreement as well as expiry of the period of tenancy and personal use. The petitioner , however , filed the application for leave to contest. The learned Special Judge (Rent) had proceeded ex parte against the petitioner on 20.09.201 1 and the application to set aside the said ex parte order filed by the petitioner was dismissed on 17.04.2012, whereafter the ex parte evidence was produced by respondent No.1, and the ejectment order was passed on 18.05.2013 while granting 60 days to the petitioner to vacate the premises besides meanwhile, directing her to continue to pay rent a Rs. 8000/- per month. The petitioner filed the appeal which too was dismissed on 30.01.2016, granting her 45 days for vacation of premises, hence this writ petition.
3. Arguments heard. File perused.
4. After hearing the learned counsel for the parties and perusing the file, it is straightway observed that the recitals of the Mortgage Deed reveals it to be a Usufruct Mortgage with an additional clause of payment of rent, but this document was not registered. At the time of execution of the document, the West Pakistan Urban Rent Restriction Ordinance, 1959 was applicable and according to Section 2(c) thereof, the landlord includes " .......any person for the time being entitled to receive rent in respect of any building ........" and under Section 2(i) of the said Ordinance, "any person by whom or on whose account rent is payable" is a tenant . However , at the time when the ejectment petition was filed, the Punjab Rented Premises Act, 2009, was in field (w.e.f.17.1 1.2009) and under Section 2(d) landlord means the owner of premises and includes a person for the time being entitled or authorized to receive the rent and under Section 2(1), a tenant means a person who undertakes or is bound to pay rent as consideration for the occupation of the premises. These definitions under new law are exhaustive as they do not specify the existence of tenancy alone but the ground/reasons for occupation of the premises.
5. Here it would be important to dilate upon the said mortgage deed in view of the judgment passed in case titled Asif Raza Mir v. Muhammad Khurshid Khan (2011 SCMR 1917 ), in which it was held that it is not the title but the contents of the document which will determine its nature and that the true intenti on of the parties must be given effect. Admittedly , the title is {{URDU TEXT}} which was written on a stamp paper issued in the name of the petitioner on 30.01.2009. It was not registered either as a mortgage deed or as Rent Agreement, until the learned Special Judge (Rent) ordered the respond ent to deposit fine equivalent to 10% of the annual value of rent in terms of Section 9(b) of the Punjab Rented Premises Act, 2009 on 30.04.201 1 whereafter the notices were issued to the petitioner . The court, therefore, acknowledged the status of document as a rent agreement which was not challenged by the petitioner . Besides, the petitioner had admitted the execution of the said document which also contains the condition for the payment of rent @ 6000/- per month by the petitioner which was enhanced to Rs.8000/- per month on 13.12.2010 after receiving Rs.30,000/- as additional mortgage money by the petitioner which was also written on the back of the stamp paper , showing the intention of the parties to operate as rent agreement. Importantly , neither the petitioner had filed any suit for redemption nor respondent No.1 filed suit for recovery of amount on the basis of the usufruct mortgage, therefore, the irresistible conclusion is that for all intents and purposes it was a rent agreement and the relationship of landlord and tenant existed, notwithstanding the title and terms of mortgage deed with regard to possession. Reliance is placed upon Abdus Salam and 2 others v. Ch. Noor Muhammad (1991 SCMR 2346 ). Even otherwise, rent paid in the usufruct mortgage is the absolute acknowledgement of the status of the petitioner as tenant. Reliance is placed upon Abdul Haq v. Ali Akbar and others (1999 SCMR 2531 ). As regards to the possession of the property in usufruct mortgage, it can be termed as possession of the mortgagor as tenant as held forty years ago in Mst. Maqbool and others v. Samandar Khan (PLD 1969 Peshawar 216). Even before, in the case titled Muhammad Abdullah v. Abdul Jabbar (PLD 1967 Lahore 1000 ) it was held, that unlike in the present case, where two agreements i.e. mortgage and rent of different dates were simultaneously executed, it would be a mortgage, unlike held in case reported as Raza Hussain v.
Muhammad Ismail (PLD 1973 Note 114) (Lahore) that such a mortgagee can eject the mortgagor in the ejectment proceedings (which are summary in nature) as the relationship of landlord and tenant existed between the parties.
This view is respectfully followed and it is hereby held that the petitioner was rightly ejected and that two courts below have not committed any illegality warranting interference in the exercise of constitutional jurisdiction of this court particularly in the absence of suit for redemption or suit for right of foreclosur e. The writ petition is, therefore, dismissed on merits. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.