Faisal Zaman Khan, J:- Through this petition orders dated 23.05.2018 passed by respondent No.2 have been assailed, whereby ejectment of respondent No.1 has been ordered, and with regard to recovery of rent alongwith arrears of utility bills, issues have been framed.
2. Succinctly , the facts of the case are that petitioner filed an ejectment petition against respondent No.1 on the grounds of default in payment of rent and utility bills, misuse of property and violatio n of the terms and conditions of the tenancy agreement. It shall be important to mention here that during the course of arguments, the learned counsel for the landlord also verbally raised the ground of expiry of tenancy . An application for leave to contest
(ALTC) was filed by the latter , which was rejected through one of the impugned order and the ejectment of respondent No.1 from the premises in dispute (details of which have been given in the ejectment petition) was ordered subject to return of security amounting to Rs.300,000/- (by the landlord /petitioner), whereas, through a separate order of the same date, issues with regard to recovery of arrears of rent and utility bills have been framed, hence, this petition.
3. Learned counsel for the petitioner submits that when ALTC filed by respondent No.1 was rejected, there was no occasion for respondent No.2 to have framed issues especially so when the eviction of the said respondent was ordered, hence, the said respondent alongwith order of ejectment should have straightaway passed an order regarding recovery of arrears of rent and outstanding bills. Further adds that ejectment of respondent No.1 has been ordered subject to return of security amount, however , the said condition is illegal, thus, the same may be set aside.
4. Despite service and representation none has entered appearance on behalf of respondent No.1, therefore, he is proceeded against ex parte.
5. Arguments heard. Record perused.
6. Through the present petition a challenge has been thrown to two separate orders of respondent No.2 passed on the same date (23.05.2018). On one hand, by virtue of a detailed order ALTC filed by respondent No.1 was rejected and the eviction of the said respondent was ordered and through the other order , for determination of arrears of rent and utility bills following issues were framed:- "1. Whether petitioner is entitled to recover rent @ Rs.65,000/- since August, 2017 alongwith arrears of utility bills?
OPP
2. Relief."
7. At present, in the Province of Punjab, ejectment petitions are filed under the Punjab Rented Premises Act 2009 (Act). The Preamble of the Act would show that the law has been promulgated in order to regulate the relationship of landlord and tenant in respect of rented premises. Under section 16 of the Act, a Rent Tribunal is established to entertain the application in respect of rented premises filed under section 19 of the Act. The grounds upon which ejectment of a tenant is sought are given in section 15 of the Act. Upon service of notice, a respondent under section 21 of the Act has to file an application seeking leave to contest (ALTC), that too, within stipulated time as he can defend the application only if the leave to contest is granted, whereupon, the ALTC will be adjudicated and in case it is refused, the Rent Tribunal is bound to pass a final order . It shall not be out of place to mention here that if the ALTC is accepted and the leave is granted, under Section 23 of the Act, the same shall be treated as written reply of the respondent.
8. It shall be important to mention here that while granting leave to contest, under Section 24 of the Act the Rent Tribunal will direct the tenant to pay the rent due from him and also to deposit the future monthly rent as well as the outstanding utility bills. In case there is any dispute regarding the amount or rate of rent, the Tribunal has to tentatively determine the same. Thereafter , under Section 25 of the Act evidence of the parties will be recorded and under sub Section 5 of Section 25 of the Act, after hearing arguments a final order will be passed which will be appealable under Section 28 of the Act.
9. A final order has been defined in Section 2(b) of the Act, which for convenience is produced hereunder:- "final order " means a final order passed by a rent Tribunal culminating the proceedings including an order in respect of adjustment of pagri, advance rent, security , arrears of rent, compensation or costs but shall not include an order passed in an execution proceedings;"
10. A cumulative reading of the above law would show that where an ejectment petition is filed by a landlord against a tenant ultimate result or a final order in that would be order of eviction of the tenant or the dismissal of the ejectment petition.
11. In the above back drop, it has to be analyzed that when in an ejectment petition ALTC filed by a tenant is rejected, what should be the course of action adopted by a Rent Tribunal?
12. Under the Act, when an ejectment petition is filed and an ALTC is adjudicat ed upon and the Rent Tribunal rejects the same, under Section 22(6) of the Act, it is bound to pass a final order . For reference the said provision is reproduced as under: "22. Leave to contest. (1)..................................
(2) ...............................................................................
(3) ...............................................................................
(4) ...............................................................................
(5) ...............................................................................
(6) If the leave to contest is refused or the respondent has failed to file application for leave to contest within the stipulated time, the Rent T ribunal shall pass the final order"
(emphasis supplied)
13. While interpreting Section 22(6) of the Act and the words "shall pass a final order ", the Honourable Supreme Court of Pakistan in judgment reported as Haji Muhammad Latif v. Muhammad Sharif and others (2021 SCMR 1430) has held that when the ALTC is rejected, the Rent Tribunal is bound to pass a final order , however , that does not absolve the said Tribunal of its duty to satisfy itself about the veracity of the case of the landlord and after applying its judicial mind it will pass the final order (and not to allow the ejectment petition at the outset on the ground that since the ALTC is rejected, hence, under section 22(6) of the Act it is obligated to pass an eviction order). For reference operative part is reproduced:- "6 There is no cavil to the proposition that subsection (2) of section 28 of the Act, 2009 bars filing of appeal against an interim order and there are also no two views that in cases where a statute specifically bars the remedy of appeal against an interim order then such statutory command ordinarily should not be circumvented by allowing parties to invoke writ jurisdiction. However , in the instant case what escaped from the notice of the High Court was as to whether the Rent Controller after declining leave to the tenant to contest the ejectment application could direct the land-lord to adduce evidence and allow the tenant to cross-examine the land-lord specially when, the provision of subsection (6) of section 22 of the Act, 2009 specifically provide that in case where the leave to contest is refused or the respondent has failed to file application for leave to contest within the stipulated time, the rent Tribunal shall pass the final order . This being a mandatory provision with the consequences spelled leaves no option for the Rent Controller but to pass final order . However , it is to be noted that the language employed in section 22(6) by using the words "final order" instead of "ejectment order", leaves room for the Rent Controller to apply his judicial mind before passing a final order as required under the circumstances of each case may it be ejectment of a tenant or otherwise ."
(Emphasis supplied)
14. Placing the afore-noted in juxtaposition with the facts of the present case, it is clear and obvious that when the ALTC was rejected by respondent No.2, it was bound to pass a final order , which in the case in hand it did and ordered ejectment of respondent No.1 subject to return of security amount (after application of judicial mind and giving reasons). It shall be important to mention here that the ejectment was ordered on the ground of expiry of period of tenancy (see the last page of order of ejectment) and not on the ground of default. Since the said order for all intents and purposes was a final order within the contemplation of Sections 2(b) and 22(6) of the Act, therefore, the same was appealable under Section 28 of the Act and if the petitioner is aggrieved of the imposition of condition of return of security or non- determination of final rent or the arrears of outstanding bills, he could have filed an appeal, which he opted not to do, thus, in the wake of availability of an alternate remedy and keeping in view the judgments passed by the Honourable Supreme Court of Pakistan reported as Province of Punjab through Secretary Communication and Works Department, Lahore through Chief Engineer (North/Central)
Punjab Highway Department, Lahore v. Yasir Majeed Sheikh and others (2021 SCMR 624), Federation of Pakistan through Secretary Establishment Division, Islamabad v. Shafqat-ur-Rehman Ranjha and others (2021 SCMR 153), Indus Tranding and Contracting Com pany v. Collector of Customs (Preven tive) Karachi and others (2016 SCMR 842), Dr. Sher Afgan Khan Niazi v. Ali S. Habib and others (2011 SCMR 1813 ) and Muhammad Abbasi v. S.H.O. Bhara Kahu and 7 others (PLD 2010 SC 969)., to that extent this writ petition is not maintainable.
15. As regards the interim order passed by respondent No.2, whereby issues have been framed, with regard to determination of arrears of rent alongwith utility bills, it will be apposite to go through Section 24 of the Act, which for convenience is reproduced as under:- "24. Payment of rent and other dues pending proceedings . (1) If an eviction application is filed; the Rent Tribunal, while granting leave to contest , shall direct the tenant to deposit the rent due from him within a specified time and continue to deposit the same in accordance with the tenancy agreement or as may be directed by the Rent T ribunal in the bank account of the landlord or in the Rent T ribunal till the final order .
(2) If there is a dispute as to the amount of rent due or rate of rent, the Rent Tribunal shall tentatively determine the dispute and pass the order for deposit of the rent in terms of sub-section (1).
(3) In case the tenant has not paid a utility bill, the Rent T ribunal shall direct the tenant to pay the utility bill.
(4) If a tenant fails to comply with a direction or order of the Rent Tribunal, the Rent Tribunal shall forthwith pass the final order ."
(Emphasis supplied)
16. A bare reading of the above provision would show that determination of rent/order of payment of rent or outstanding utility bills could only be made by the Rent Tribunal while granting the ALTC and not otherwise and the same will be subject to final order as contemplated in Section 24(1) of the Act.
17. While interpreting the above provision, an exception has been created by the Honourable Supreme Court of Pakistan in judgment reported as Mian Umar Ikram ul Haque v. Dr. Shahida Hasnain and another (2016 SCMR 2186 ) wherein it has been held that when the defense set up in the ALTC is found contumacious, while rejecting the ALTC and passing a final order rent can be determined. For reference the operative part is reproduced as under:- "Instead, when the Rent Tribunal, without framing an issue, concludes that the denial is contumacious in nature, it may refuse to grant leave and allow the eviction application. Whilst so doing, the Tribunal can simultaneously pass an order under section 24 of the Act finally determining the rent due from the tenant and direct that the same be deposited/paid."
18. It shall be important to mention here that previously in the Province of Punja b ejectment petitions were filed under the West Pakistan Urban Rent Restriction Ordinance, 1959 (Ordinance ), wherein, under Section 13(6) & (8) of the Ordinance the Rent Controller was bound to "finally determine " the rent "at the conclusion of proceedings or an earlier date as specified by the Controller ", which will be subject to adjustment from the rent deposited by the tenant, however , no such provision exist in the Act.
19. It shall not be out of place to mention here that there is no embargo under the Act upon the rights of a landlord to move an "application " as mentioned in section 19 of the Act for seeking arrears of rent and outstanding bills, (if no adjudication is made by the Rent Tribunal while deciding the ejectment petition) upon which under section 2(b) of the Act a Tribunal is bound to pass a final order .
20. In the afore referred circumstances and keeping in view the ratio of Haji Muhammad Latif mentioned supra, although respondent No.2 under section 26(3) of the Act could have passed any interim order before passing a final order , however , in the case in hand, since respondent No.2 when refused the ALTC filed by respondent No.1 and passed a final order of ejectment on the ground of expiry of tenancy (and not as default), it had no jurisdiction, especially through an interim order to frame issues or to further adjudicate upon the matter , especially so when there was no rebuttal to the contents of the ejectment petition.
21. For what has been discussed above, this petition is partially allowed as a sequel to which the interim order passed by respondent No.2 qua framing of issues being without jurisdiction is set-aside .