MUHAMMAD SAJID MEHMOOD SETHI, J. This consolidated judgment shall dispose of instant appeal along with following connected appeals, as common questions of law and facts are involved in these cases:-
1. SAO No.77926 of 2019 titled Sheikh Tahir Mehmood v. Mian Muhammad Zia
2. SAO No.77929 of 2019 titled Mushtaq Ahmad v. Mian Muhammad Zia
3. SAO No.77932 of 2019 titled Mst. Zareena Bibi v. Mian Muhammad Zia
4. SAO No.78772 of 2019 titled Dilawar Hussain v. Mian Muhammad Zia
2. Through instant appeal, appellant has assailed vires of order dated 12.10.2017 & judgment dated 21.11.2019, passed by learned Special Judge (Rent) and Additional District Judge, Lahore, respectively, whereby respondent's ejection petition was concurrently allowed.
3. Brief facts of the case are that respondent filed ejectment petition under Section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 ("the Ordinance of 1959") regarding property fully mentioned in para '1' of ejectment petition. Appellant contested said ejectment petition by filing application for leave to contest, however, learned Special Judge (Rent) vide order dated 12.10.2017 proceeded to strike off appellant's right under Section 13(6) of the Ordinance of 1959 and allow the ejectment petition. Feeling aggrieved, appellant preferred first appeal before learned Additional District Judge, which was dismissed vide judgment dated 21.11.2019. Hence, instant appeal.
4. Learned counsel for appellant submits that since ejectment petition was filed under the old ordinance i.e. the West Pakistan Urban Rent Restriction Ordinance, 1959, therefore, same ought to have been decided after recording of evidence. He adds that no notice under Section 13-A was served upon the appellant regarding change of ownership, hence, appellant was not bound to pay rent to the appellant. He maintains that since ejectment petition was filed on the ground of personal bona fide need and default in payment of rent along with damage to the property, therefore, same should have been decided after framing issues and recording evidence of the parties. In support, he has also referred documents showing payment of property tax by appellant on behalf of respondent-landlord. Lastly, he submits that impugned decisions being ultra vires are unsustainable in the eye of law.
5. Conversely, learned counsel for respondent defends the impugned decisions by contending that the appellant failed to pinpoint any illegality or legal infirmity in the concurrent findings of the learned forums below. He argues that appellant has also not made statutory increase in the monthly rent which constitutes default and eviction order is justified on this score also.
6. Arguments heard. Available record perused.
7. Perusal of record reveals that the eviction of appellant was sought on multiple grounds inter alia
(i) appellant was in occupation of the demised property as tenant under the previous owner against monthly rent of Rs.5000/- and after purchasing the property in dispute, the appellant became tenant w.e.f. 11.04.2003 under the respondent by operation of law, however, appellant has sublet the demised property to someone else without permission of the respondent; (ii) the demised premises is required by the respondent for his personal use; and (iii) appellant has defaulted in payment of monthly rent to respondent from 11.04.2003. However, the eviction order was passed on the ground of willful default in the payment of rent by invoking Section 13(6) of the Ordinance of 1959, whereby respondent was held entitled to recover monthly rent from appellant for the period of December, 2009 to July, 2010 till eviction thereof by granting appellant one month's time for vacation of the demised premises. The relevant portion of Special Judge (Rent)'s order dated 12.10.2017, is reproduced hereunder:- "The respondents are the willful defaulter in payment of rent for the period of December 2009 to July 2010. The respondent was directed to submit receipts for the default period i.e. December 2009 to July 2010 with an absolute and last opportunity but the respondent did not submit the same which shows that the respondent is willful defaulter in payment of rent. Therefore, right of the respondent is struck off under section 13(6) of the Punjab Rent Restriction Ordinance, 1959 and the applicant is ordered to put into possession of shop."
8. Learned first Appellate Court, after going through the available record and analyzing the material aspects of the matter, rightly upheld the order passed by learned Special Judge (Rent).
For facility of reference, operative part of impugned appellate judgment dated 21.11.2019 is reproduced hereunder:- "6. It is clear from the perusal of the record that admittedly, the appellant was tenant on the dispute rented premises and he had been depositing rent in the court since June, 2006 as per receipts annexed with the file and there is no receipts produced by him for the payment of rent since December, 2009 to July, 2010. The learned Special Judge, Rent ordered appellant to produce receipts for defaulted months. Neither produce of them inspite of obtaining opportunities during the proceedings of the application u/s 13(6) of the West Pakistan Urban Rent Restriction Ordinance, 1959 nor even uptil pronouncement of the impugned order i.e. 12.10.2017 and his right of defence was struck off and ejectment petition was accepted. Neither the appellant assigned any justification for non-payment of rent in the appeal nor during arguments. Hence, the impugned order dated 12.10.2017 was rightly passed by the Special Judge, Rent which does not suffer from any illegality, factual error and jurisdiction defect calling for interference. So, the impugned order is up- held, the appellant is bound for payment of previous rent since December, 2009 to July, 2010 as well as annual enhancement rent for the whole year, 2009 and also till vacation. Instant appeal, being without substance and merit, is hereby dismissed. ..."
9. It is also pertinent to mention here that learned counsel for the appellant has placed certain Challan Forms on record, which are regarding deposit of rent for the months of May, July, August, September and October, 2009 @ Rs.1250/- per month, which means that 25% enhancement in rent after every three years in terms of Section 5-A (4) of the Ordinance was not made despite the fact that respondent acquired ownership rights of the demised premises w.e.f. 11.04.2003. The other receipts include receipts of various months of the year 2018, which also do not suggest that enhancement in rent @ 25% has not been made for the said year. From the available record, it is not established that there was regular payment of rent by appellant, especially for the period highlighted by learned Courts below, and requisite enhancement @ 25% since existence of relationship of landlord and tenant between the parties. It is well-settled that tenant is bound to increase rent @ 25% after every three years being envisaged by the statute, failure whereof would entail consequences of willful default and arrears of rent becoming due in terms of Section 13(2((i), which provides that if tenant has not paid or tendered rent due within stipulation proved therein, the Special Judge (Rent) may pass eviction order. Needless to observe that increase in rent under Section 5-A is automatic and is terms as rent due within contemplation of Section 13(2)(i). These provisions are fully attracted in the case in hand. Moreover, this Court is of the view that a specific and separate notice for payment of increased rent is not necessary to be served upon a tenant and default would not to be presumed on lapse thereafter, rather a tenant must be conscious of the fact that increase is duly provided in the statute and he is bound to obey the dictates of law.
Even otherwise, service of notice under Section 5-A of the Ordinance of 1959 by a landlord to a tenant is not condition precedent to invoke the jurisdiction of the Special Judge (Rent). Reliance is placed upon Muhammad Irfan v. Muhammad Zahid Hussain Anjum (2000 SCMR 207), Sikandar Hayat v. Hasina Sheikh (PLD 2010 Supreme Court 19), Mian Shahid Iqbal v. Sheikh Tariq Mehmood (2010 SCMR 1) and Malik Abdul Aziz Awan and another v. Rana Maqbool Ahmad Khan and others (2012 SCMR 91).
10. Now the question arises as to whether this Court while entertaining this appeal as second Appellate Court can take cognizance of the fact that 25% increase in rent after every 03-years in view of Section 5-A of the Ordinance of 1959 was to be made by the appellant/tenant, which was not done and forums below also did not give any findings on it, suffice it to say that an appeal is continuation of proceedings wherein entire proceedings are again left open for consideration by the Appellate Court and these powers are co-extensive with the powers and obligations conferred upon the original jurisdiction in respect of petitions/suits. The Appellate Court may also pass an order in favour of a party, even no appeal or cross objections are filed, to secure the ends of justice.
In this view of the matter even if, a ground raised and not pressed which relates to fundamental question can be considered by the Court. In such situation, two courses are available with the Court: one to decide the matter on the basis of admitted facts and applicable law and the other to remand the case to the lower forum to consider said aspect which earlier escaped the notice of learned Courts below. As per record, ejectment petitions were instituted in the year 2006 and parties are in litigation for the last 16-years. In such circumstances, the remand would result into further delay, wastage of time of the Courts and enhance hardships of respondent-landlord, especially when it is not disputed that statutory enhancement in the rent was not made. Reference is made to Kudadad v. Syed Ghazanfar Ali Shah alias S. Inaam Hussain and others (2022 SCMR 933), Mushtaq ul Aarifin and others v. Mumtaz Muhammad and others (2022 SCMR 55), Muhammad Bashir v. Muhammad Hussain and 16 others (2009 SCMR 1256), World Call Cable (Pvt.) Ltd. through Chief Executive Officer v. Federation of Pakistan through Secretary and another (2020 CLC 534) and Salah-ud-Din Butt and others v. Punjab Service Tribunal and others (PLD 1989 Supreme Court 597).
11. So far as issuance of notice under Section 13-A regarding change of ownership is concerned, it suffices to note that appellant instituted a suit for permanent injunction against respondent and previous owner wherein respondent appeared and intimated change of ownership by submitting sale deed and suit was disposed of vide order dated 17.10.2003. It means that factum of change of ownership was well in the knowledge of appellant. Even otherwise, filing of ejectment petition can be considered as notice for eviction and the appellant was under legal obligation to have made payment of the rent accordingly. Reliance in this regard can be placed upon Major (Retd.)
Muhammad Yousaf v. Mehraj-ud-Din and others (1986 SCMR 751), Pakistan National Shipping Corporation v. Messrs General Service Corporation (1992 SCMR 871) and Akhtar Saleem v.
Additional District Judge (2013 MLD 209).
12. As regards appellant Dilawar Hussain's claim regarding ownership of shop No.26 through registered sale deed, suffice it to say that both the learned Courts below have observed that sale deed has no nexus with the aforesaid shop. However, appellant Dilawar Hussain is at liberty to avail alternate remedy available to him under the law, if so advised. Even otherwise, the sale deed so claimed is subsequent in time and appears to have no nexus with the shop in question.
13. The findings of learned Courts below have been analyzed on the basis of available record and same are found to be in conformity with the applicable law. No exception can be taken to the impugned findings. Appellant has failed to point out any illegality or legal infirmity in the impugned decisions.
14. Resultantly, instant appeal, along with connected appeals, being devoid of any merit, is dismissed with no order as to costs. However, it is observed that while calculating arrears of rent, the factums of 25% increase in rent after every 03-years as provided in Section 5-A of the Ordinance of 1959, and already paid rent, shall be taken into consideration.