Rasaal Hasan Syed, J. This Constitutional petition calls into question orders dated 12.7.2021 and 15.7.2021 of the learned Special Judge (Rent), Lahore, in execution proceedings.
2. Respondent Nos. 2 and 3 filed an ejectment application under section 19 of Punjab Rented Premises Act, 2009 (the "Act") on 26.3.2021, seeking eviction of petitioner from a commercial hall located at the ground floor of property bearing No. 3, Block R/2, Main Boulevard, Johar Town, Lahore, claiming that the premises was rented out for ten years vide tenancy agreement dated 07.5.2020; the rate of rent was Rs.3,50,000/- per month with 08% annual increase; the petitioner committed default in payment of monthly rent from November , 2020 and did not pay withholding tax and violated the terms and conditions of lease agreement and was, as such, liable to eviction.
Initially the petitioner was proceeded against ex parte which order was recalled vide order dated 16.4.2021 and case was set up for arguments on application for leave to contest, on which date three cheques were received by respondent Nos. 2 and 3 whereafter the case was adjourned to 07.6.2021.
Order dated 15.6.2021, which is partly recorded in Urdu and partly in English, reveals that in the first portion of order presence of the counsel for parties and Rana Muhammad Farooq, Director of petitioner herein was recorded.
His statement was to the effect that a rent deed - Ex.A-1 - had been signed and executed between the parties who shall be bound by the terms and conditions thereof and that the ejectment applica tion be disposed of on the basis of the said rent deed. Latter portion of order dated 15.6.2021 reveals that the ejectment petition was disposed of.
3. On 07.7.2021, i.e. approximately 21 days thereafter respondent Nos. 2 and 3 filed an application for execution of order dated 15.6.2021, claiming that the order was not implemented and that amount of Rs.15,55,500/- and monthly rent of Rs.3,85,000/- be recovered from the present petitioner and possession of the property be also delivered through attachment and warrants of possession. On 12.7.2021 an order for issuance of warrants of possession was passed. Later , on an application of respondent Nos.2 and 3, the order for police assistance and lock/door-breaking was passed on 15.7.2021 which resulted in eviction of petitioner . These orders are under challenge in the instant petition.
4. Learned counsel argued that no executable order of eviction was ever passed in ejectment proceedings; the parties had entered into a compromise by executing fresh rent deed with different terms and conditions and period of tenancy was re-fixed as 01.6.2021 to 30.5.2031; the receipt of security amount of Rs. 10,00,000/- refundable at the time of delivery of possession after adjustment of the utility bills and rent if any was acknowledged; and that in view of the fresh terms and conditions as per Ex.A-1 the ejectment application was disposed of without order of eviction. It was added that by misrepresentation and fraud the respondent Nos. 2 and 3 procured impugned orders and that the order dated 15.7.2021 was tampered with by erasing and overwriting the words "borne fruit"; that a forged power of attorney of an advocate who was never engaged by petitioner was produced to misrepresent before the Rent Tribunal; and that the entire process was completed by fraudulent misrepresentation. It was further argued that the petitioner had already paid Rs.10,00,000/- as security which was refundable; neither any show cause notice was issued nor opportunity to file objection s was allowed; and that the eviction was made in violation of law.
Contrariwise learned counsel for the respondent Nos.2 and 3 submitted that the order was executable; petitioner was bound to pay rent and having default ed in the payment of rent eviction was liable and that the execution of the order was rightly made and that no illegality was committed in dispossessing the petitioner in eviction proceedings.
5. On consideration of documents available with this petition, it is observed that initially the respondent Nos.2 and 3 sought eviction of the petitioner on the grounds of default in payment of rent from November 2020, breach of terms and conditions of tenancy agreement and non-payment of withholding tax. The ejectment application was instituted on 26.3.2021. Petitioner entered appearance, filed application for leave to contest and at the stage when the application was fixed for arguments on the application for leave, Rana Umer Farooq, Director of petitioner entity appeared before the Rent Tribunal on 15.6.2021 and recorded his statement to the effect that tenancy agreement Ex.A-1 had been written and executed between the parties, which was produced in original as Ex.A-1 and that the parties will be bound by the terms and conditions thereof and that the ejectment petition be disposed of on the basis of tenancy agreement. The order which was passed by the Rent Tribunal in English after recording the statement of petitioner 's director on 15.6.2021, as it presently exists in the order-sheet, is as follows: "15.6.2021
Presence: Learned counsel for the petitioner .
Respondent No.2 in person.
Statement of respondent namely Rana Umar Farooq No.2 is recorded as above. Parties are bound to follow the terms and conditions of Ex.A-1. In the light of above recorded statement, the instant petition has borne fruit. Hence, the instant ejectment petition under section 19 of the Punjab Rented premises Act, 2009 for the ejectment of respondent/tenant is hereby disposed of. Ahlmad of this court namely Hassan Sheikh is directed to consign this file to the record room after its due completion and compilation."
Serious concern was expressed by the learned counsel for the petitioner that the words "borne fruit" had been overwritten by respondent Nos.2 and 3 which is apparent from copy of order as the entire order was in computer typeset but the words "borne fruit" were put with a pen after erasing some other words that had been typed and that there were no initials of the Presiding Officer to authorize such intervention in the judicial order . This aspect of the matter will be dealt separately .
6. Important question for consideration in this case will be as to whether any executable ejectment order was passed by the learned Special Judge (Rent) on 15.7.2021 and whether the petitioner could be evicted in terms thereof. Perusal of the order as noted supra reveals that its first portion was in Urdu wherein the attendance of learned counsel for parties and also that of Rana Umer Farooq, one of the respo ndents in eviction petition, was marked and thereafter his statement was recorded to the effect that a tenancy agreement Ex.A1 had been executed between the parties and that the parties shall be bound by its terms and that ejectment application be disposed of. Neither the statement of learned counsel for the respondents therein, nor of respondent Nos.2 and 3 was recorded to verify as to whether the statement of tenant was acceptable and whether a fresh rent agreement had actually been executed and what was their stance in respect thereof as per reproduction supra.
7. On 07.7.2021 i.e. after 21 days execution application was filed by respondent Nos.2 and 3 asserting that the order dated 15.6.2021 was not complied with; that possession of the property had not been delivered and that, therefore, recovery of amount of Rs.15,55,500/- and rental of Rs.3,85,000/- along with delivery of possession be effected through warrants of arrest of judgment-debtor and by attachment and warrants of possession of the property through breaking of locks, etc. Vide order dated 12.7.2021 the learned Special Judge (Rent) directed issuance of warrants of possession for 30.9.2021. Two days later i.e., on 14.7.2021 a report was submitted by the bailiff that the possession could not be delivered without police assistance. Copy of bailiff report is available at page 41 of the instant file which shows that the same was witnessed by Muhammad Asim resident of 04-Mozang Road, Lahore and Khadim Hussain resident (sic) of shop No.292, Block 5, Sector C-II, Green Town, Lahore, who were not residents of same area. The learned Special Judge (Rent) vide order dated 15.7.2021 directed that in the light of the report of bailiff warrants for possession of the premises be enforced by opening/breaking of locks/doors, gates, etc. and with the assistance of police. It is a matter of serious concern that on 12.7.2021, respondent No.1 directed issuance of warrants of possession for 30.9.2021 and just a day thereafter i.e. on 14.7.2021 a report was submitted by the bailiff , as observed hereinabove; which on the face of it was unworthy of credence but was relied upon; and by accepting an application of responde nt No. 2 and 3, order dated 15.7.2021 for enforcement of warrants of possession through breaking of locks, doors, etc. with police assistance was passed. It is also observed that at the time of passing of order on 15.7.2021, only attendance of bailiff and the learned counsel for the so called decree- holder was recorded; neither any inquiry was made nor the statement of bailiff was recorded to verify the report and in a mechanical manner permission was granted for breaking doors, locks, etc. with the assistance of police to deliver possession and in consequence thereof, the tenant was thrown out of the rented property .
8. Main defense raised on behalf of respondent Nos.2 and 3 was that the order of disposing of the ejectment petition in terms of fresh rent agreement was an executable order and, therefore, the Rent Tribunal competently proceeded to implement the order . In this context reliance was placed on "Hassan Masud Malik v. Dr. Muhammad Iqbal and others" (1995 SCMR 766). Facts of cited case are distinguishable. In the said case, ejectment application was filed for the eviction of tenant. During the pendency of the proceedings a compromise was arrived at inter se the parties; whereby the tenant agreed to retain the property up till December , 1987 at the enhanced rent @ Rs.3,000/- to Rs.3,500/- per month. In pursuance of the compromise a statement was recorded by the Rent Controller and a final order was passed which was to the effect that the ejectment application stood accepted and tenant was required as per compromise to deliver the possession on 01.12.1987. To execute this Order an application was filed and which order was held to be executable in appeal and was not interfered with up till the Supreme Court. It was observed as follows in the ruling supra: "5. Undoubtedly the petitioner had agre ed to vacate the premises in dispute in December , 1987, therefore, he could not wriggle out of the undertaking given by him. The Constitutional jurisdiction under Article 199 being discretionary cannot be exercised in favour of a person who is reluctant to abide by the undertaking given by him. The learned Single Judge in Chambers was right in declining to grant relief to the petitioner who is, not prepared to abide by his own commitment made in writing. The learned Rent Controller was wrong not to execute the order dated 2 10-1985, passed on the basis of the compromise reached between the parties."
9. In "Ijaz Ahmad Mirza v. Civil Judge and others" (2018 CLC 468) referred by the learned counsel the petitio ner the operative and material facts were distinguishable. In the said case an ejectment application was filed under section 17 of The Cantonments Rent Restriction Act, 1963, the defence of the tenant was struck off and he was directed to vacate premises within two months. Order was assailed in appeal (FAO No. 6 of 2017) which was dismissed in limine; during the execution proceedings an agreement was entered between the litigating parties and as per clauses 4 and 5 thereof, possession was agreed to be handed over to the landlord on 02.1.2017 while the landlord agreed to return the security amount of Rs.18,50,000/- after deduction of Rs.4,00,000/- to Rs.5,00,000/- as rent for the grace period and other arrears. In terms thereof, the execution proceedings appear to have been postponed. Later the objection to the execution did not succeed and the order was held to be executable. It is obvious from the facts that in the said case an ejectment order had already been passed which was upheld in appeal; the parties agreed for the postponement of execution proceedings for certain period which was granted and later the order was executed in terms of the agreed understanding. Obviously in executing court, the parties could mutually agree to postpone the enforcement of ejectment order and undertaking was given to vacate the premises on a particular date; which commitment if violated could result in the revival of the eviction proceedings and consequent eviction of the tenant in execution of ejectment order already passed against tenant.
10. In the instant case, no order of ejectment had been passed; the ejectment proceedings were still pending at the stage of application for leave to contest when the tenant executed a fresh rent agreement i.e. Ex.A-1 and produced it in the court and recorded the statemen t to remain bound by the terms thereof and, accordingly , the ejectment petition was disposed of. There was no conditional eviction order as evident from the order dated 15.7.2021 passed by the learned Special Judge (Rent) and only the eviction petition was disposed of. Obviously the parties having executed a fresh rent note on new terms and conditions whereby the rate of rent was changed, the period of tenancy was changed and other terms were also modified. The breach of any condition thereof could attract filing of eviction petition for the ejectment which, of course, could be allowed only after undergoing the proceedings pursuant to sections 19 and 22 of Act wherein the tenant is entitled to a notice, to file an application for leave to contest and to satisfy that the tenant had not breached the terms of lease nor committed any default. Outright execution of the fresh rent agreement could not result in eviction of the tenant ipso facto merely because the landlord claimed that the terms were breached unless proper inquiry was held in fresh round of litigation.
11. The previous ejectment petition was disposed of as the respondents did not raise any objection to the execution of the rent agreement Ex.A-1 and did not object to the fresh terms and conditions of tenancy and having done so, if they were aggrieved by the subsequent breach of the terms, the proper remedy for was to file an eviction application on the plea of fresh cause of action and not to seek execution of an order that did not contain any condition of eviction. Reference in this regard can also be made to "Mrs. Ameena Lodhi and 2 others v.
Maqbool Hussain" (1983 CLC 178). In the said case ejectment application was filed on the grounds of default, the rent matter was disposed of in terms of the compromise with the following order: "ORDER The Attorney for the applicants are present in persons alongwith their counsel. The contents of this application have been admitted by them. Let it be recorded. The case is disposed of in terms of the compromise with no order as to costs. Order accordingly .
Sd/- (Civil Judge and Rent, Controller , Karachi)
19-12-1973"
It appears that in the compromise application it was agreed by the tenant that he would pay the amount mentioned therein in the manner provided therein. It was further agreed that in case of two consecutive defaults of two monthly installments of arrears as mentioned, the tenant shall be liable for ejectment without notice. While considering the question as to whether the order passed by the Rent Controller was executable, it was finally observed that the order was not executable. While considering the question as to whether in the proceedings under the West Pakistan Urban Rent Restriction Ordinance 1959, there could be an agreement enforceable by execution.
It was observed as follows in this context: "6 ... A person in whose favour an ejectment order is passed may postpone its execution or may waive it upon fulfillment of certain conditions. However , in the absence of passing of an ejectment order by the Rent controller , it cannot be spelled out from the terms of a compromise application having no provision providing for passing of an ejectment under or from the order passed thereon in general form that the application stand disposed of in terms of compromise. In the instant case admittedly no ejectment order was passed by the learned Rent controller and, therefore, the principle enunciated in the above cited cases cannot be passed into service.
7. As regards the contention of Mubarak that an order passed under the late Ordinance was a decree and, therefore, is executable as such, it may be mentioned that section 17 of the late Ordinance provided that every order made under section 10 or section 13 and every order passed on appeal under section 15 shall be executed by a civil Court having jurisdiction in the area as if it were a decree of that Court. In my view the order of ejectment passed under the Ordinance was treated on account of deeming provision as a decree for the purpose of execution of the order , but cannot be equated with a decree passed in a civil suit.
It may be observed that when a thing is to be deemed something else, it is to be treated as that something else with the attendant consequences, but it is not in fact that something else. Furthermore, even if I were to hold that an ejectment order is a decree, as pointed out hereinabove, in fact no ejectment order was passed I the present case and, therefore, there is no question of executing any such order as a decree."
12. Deeper consideration of the proceedi ngs in the present case before the Rent Tribunal, makes it plain that the ejectment application was filed for the default from November , 2020 and the petition was filed on the basis of tenancy agreement dated 07.5.2020. In terms of the said agreement the petitioners had committed to pay rental @ Rs.3,50,000/- per month and security amount of Rs. 10,50,000/- was paid through cheques which was refundable at the time of eviction. The period of tenancy was for ten years commencing from 01.8.2020 to 30.7.2031. During the pendency of the case, the parties entered into a new agreement of tenancy dated 09.6.2021 in terms whereof the rental was increased and the petitioners committed to pay monthly rent @ Rs.3,85,000/-. The period of lease was fixed at 10 years from 01.6.2021 to 30.5.2030. The security amount of Rs.10,50,000/- received through cheques was refundable at the time of vacation of the premises subject to adjustment of rent and utility bills, if any.
It is thus obvious that the terms and conditions of tenancy were varied, the original agreement was novated, and a new tenancy was created for a different period and on different monthly rent and parties agreed to be bound by the same. In his statement dated 15.6.2021 the director of the petitioner company brought this fact and the rent agreement Ex.A-1 itself on record and the ejectment application was disposed of on the basis of the terms and conditions of new rent agreement.
13. There was no conditional ejectment order that was passed nor could it be assumed or inferred from bare reading of the order that the Rent Tribunal had any intentions to direct eviction of the tenant in case of breach of terms and conditions of the fresh rent agreement. In fact the parties were satisfied by the new terms and conditions of lease and had agreed to abide by the same and in case of any violation of the fresh lease agreement; legally admissible remedy could not involve filing of execution proceedings directly but rather required filing of fresh ejectment application under section 19 of the Act. The learned Rent Tribunal without considering this aspect of the matter and without attending to the maintainability of the execution proceedings, mechanically issued warrants for possession and, thereafter , enforced the same through police assistance which order were patently without lawful authority , jurisdiction and were legally untenable.
14. Resultantly this Constitutional petition is allowed . The impugned orders are declared to be without lawful authority and are accordingly set aside. In consequence the execution petition shall stand dismissed .
15. As regards the allegations of interpolation in the order dated 15.6.2021, the learned Special Judge (Rent) shall himself inquire into the matter and in case the allegations are found to be factually correct shall fix the responsibility and send report to the learned District Judge, Lahore for appropriate proceedings in accordance with law .