SULTAN TANVIR AHMAD, J. The present petition, under-Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, is filed against the consolidated judgment dated 2I.O6.2022 passed by learned Additional District Judge, Bahawalpur, whereby rent appeal of the petitioner bearing No. 31 of 2022 has been dismissed and order dated 29.03.2022 passed by learned Rent Tribunal/Senior Civil Judge, Bahawalpur has been upheld.
2. Respondents Nos. 3 to 5 (the 'Ejectment Petitioners') filed ejectment petition dated 14.01.2022 (the 'Ejectment Petition') against the present petitioner and respondent No. 6 with respect to Shop No.73/B74, bearing property tax No. B-IV-393, measuring 398- square feet situated at Shahi Bazar, Bahawalpur (the 'Demised Premises'). Per contents of the Ejectment Petition the Demised Premises was owned by one Mst. Khursid Begum, the predecessor of Syed Rafi-ul-Sami (the `First Owner'), who rented out the same to the petitioner and others and in due course Ejectment Petitioners purchased the Demised Premises, on the strength of sale deed dated 20-03-2021 (the 'Sale Deed'), however, the petitioner and others, instead of vacating the Demised Premises sought time of three months and then deviated from their promise as well as defaulted in the payment of rent. On 31- 01-2022 the petitioner tiled leave to defend the Ejectment Petition, inter alia, on the grounds that they have purchased the Demised Premises from the First Owner for valuable consideration, prior to the purported sale in favour of the Ejectment Petitioners; that he has no relation of landlord and tenant with the Ejectment Petitioners.
3. The learned Rent Tribunal dismissed the application for leave to defend the suit on 29.03.2022 and fixed the case for evidence of the Ejectment Petitioners. The order was assailed by the petitioner through Appeal No. 31 of 2022 on 11.04.2022, which was dismissed vide judgment dated 21.06.2022 by the learned Additional District Judge, Bahawalpur. Aggrieved from the same the present petition has been filed.
4. Mr. Muhammad Fahad Khan, learned counsel for the petitioner has submitted that the learned Rent Tribunal, after rejecting the leave to defend the case, has fixed the case for evidence of the Ejectment Petitioners, which is against the spirit of section 22(6) of the Punjab Rented Premises Act, 2009 (the 'Act'); that learned Rent Tribunal has gone against the mandatory provisions of law, which has been ignored by the learned Appellate Court and the impugned order and judgment, therefore, are not sustainable; that evidence, despite rejection of leave, if recorded and relied by the learned Rent Tribunal while passing the final judgment shall not only be against the law but at the same time it will result into serious prejudice to the interest of the petitioner. It is added by learned counsel of the petitioner that Rafi-ul-Sami, the sole legal heir of the First Owner, sold the Demised Premises to the petitioner in the year 2020 for Rs. 10,800,000/-. out of which Rs. 2,500,000/- has already been paid and now the Ejectment Petitioners in collusion with the others have staged a fraud to usurp the rights of the petitioner; that Rafi-ul--Sami, after the said agreement and receiving the above said amount, has no right to further confer the ownership rights upon the Ejectment Petitioners. Learned counsel of the petitioner has relied upon cases titled "Muhammad Yousaf and 7 others v. Falak Sher Khan and 7 others" (2018 CLC Note 133) and "Ch. Abdul Waheed through L.Rs. v. Zahida Parveen alias Nagina and 5 others" (2021 YLR 1973).
5. Conversely, Mr. A. R. Aurangzeb, learned counsel for the Ejectment Petitioners, has vehemently opposed the petition. Learned counsel has relied upon certain documents, produced by the Ejectment Petitioners in the ongoing proceedings of recording evidence, including notice issued by the Ejectment Petitioner and it is submitted that since the petitioner has failed to convince the learned Rent Tribunal as to the plausibility of their defense and their leave application has been refused, therefore, they have ,no right or interest left that can be agitated in this Constitutional petition; that the question as to the oral agreement between the Mist Owner or her legal heirs and petitioner can be seen by the learned Civil Court under the general jurisdiction and this matter cannot be examined by the learned Rent Tribunal. Learned counsel has relied upon cases titled "Mst. Zarin Khan v. Mst. Farzana Shoaib" (2017 SCMR 330), "Mrs. Azra Riaz v. Additional District Judge and others" (2021 'CLC 623), "Noor-un-Nisa and others v. United Bank Limited through Authorized Officers and 2 others" (PLD 2021 Lahore 90), "Haji Muhammad Saeed v. Additional District Judge" (2012 MLD 108), "Nishan Ahmad alias Zeeshan v. Civil Judge and others" (2021 MLD 1613) and "Ayesha Moeen v. Appellate Rent Tribunal/Additional District Judge, Lahore and 4 others" (2016 CLC 1832).
6. I have heard the arguments and record has been perused with the able assistance of learned counsel for the parties.
7. The Act has been promulgated for regulating the relationship and disputes between landlords and tenants, which provides a mechanism for the settlement of such disputes in effective and expeditious manners. To achieve the said purpose special procedure has been laid down in the Act, requiring both sides (landlord and tenant) to file their claim and defense/leave to defend by giving full and fair disclosure on affidavit(s), at the time of filing pleadings. Where section 22(3) of the Act requires from defender of an ejectment petition that leave application should be accompanied by an affidavit of the defender and all relevant documents in his possession as well as affidavits of the witnesses, it is also made imperative, under section 19 of the Act, for one who is seeking ejectment that ejectment petition should contain concise statement of facts which must be accompanied by all relevant documents and affidavits of the witnesses. Upon filing of the pleadings, section 22 further lays down the procedure to be followed for grant or refusal of the leave application and the consequences of the same. Here, it will be beneficial to reproduce the relevant provisions of the Act: -
19. Filing of application.--(1) An application in respect of a rented premises shall be filed in the Rent Tribunal of the area or the district.
(2) If an application is filed under subsection (1), the Administrative Special Judge (Rent) of the area or the district may take cognizance of the case or entrust the same to any other Special Judge (Rent).
(3) An application under subsection (1) shall contain a concise statement of facts, the relief claimed and shall be accompanied by copies of all relevant documents in possession of the applicant.
(4) If the application is for eviction of a tenant, the landlord shall submit his affidavit and affidavits of not more than two witnesses along with the eviction application.
22. Leave to contest.---(1) A Rent Tribunal shall not allow a respondent to defend the application unless he obtains leave to contest.
(2) Subject to this Act, a respondent shall file an application for leave to contest within ten days of his first appearance in the Rent Tribunal.
(3) An application for leave to contest shall be in the form of a written reply, stating grounds on which the leave is sought and shall be accompanied by an affidavit of the respondent, copy of all relevant documents in his possession and, if desired, affidavits of not more than two witnesses.
(4) The Rent Tribunal shall not allow leave to contest to a respondent unless the application discloses sufficient grounds for production of oral evidence.
(5) The Rent Tribunal shall decide the application for leave to contest within a period of fifteen days from the date of its filing.
(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 Tribunal shall pass the final order.
(Emphasis Supplied)
8. Section 19(3) and (4) of the Act requires the ejectment petitioner to provide all the documents in his possession as well as to append the affidavits of the witnesses that he intends to produce along with the ejectment petition. Section 22(3) of the Act imposes almost same conditions upon the defender of the ejectment petition to provide all the documents in his possession, affidavits of witnesses at the time of filing leave application.
9. Subsection (6) of section 22 of the Act provides that if leave to contest is refused, the Rent Tribunal shall pass the final order that shows that rejection of leave and passing a final order are envisaged by the legislature as two independent eventualities. The leave rejection order itself is not envisioned as the only order in section 22(6) rather the final order is to follow such leave rejection.
Further, the word "shall" is leading the words "pass the final order" in section 22(6) of Act, which is a command of law, leaving no option with the Rent Tribunals but to pass final order with respect to the matter of ejectment. The words used in the above provisions and the requirement, imposed on the parties, of appending "all relevant documents in their possession" are meaningful and it has direct nexus with the subject in hand. The purposes of requiring the parties to give disclosure on affidavits and providing all the documents in their possession is not merely to decide leave application but also to enable the Rent Tribunal to reach to the conclusion as to the matter of ejectment upon refusal of leave. If the leave is rejected or there is no leave filed, the Rent Tribunals are required to pass final order as to question of ejectment after applying judicious mind and keeping in view the pleadings supported by affidavit(s) and all the documents on record. However, when the leave has substance and it discloses sufficient ground(s) for production of oral evidence, the available affidavits can be treated as examination-in-chief, allowing the parties to cross- examine and to adduce evidence in the mode and manners provided in the Act.
While deciding Writ Petition No. 221102 of 2018, titled "Muhammad Liaqat Ali v Majid Ali, etc.", this Court has already observed as follows: -
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.
10. This above interpretation is further supported from the clear wording of section 25 of the Act, which reads as follows:-
25. Recording of evidence.-(1) At the time of grant of leave to contest, the Rent Tribunal shall direct a party to produce his evidence on a date fixed.
(2)1 The Rent Tribunal shall treat an affidavit filed by a party as evidence and
(a) may, of its own motion, order the attendance of deponent for cross-examination; and
(b) shall, if so requested by a party, direct production of the deponent for cross-examination.
(3) The Rent Tribunal shall not grant more than two opportunities to a party for production of the evidence.
(4) The Rent Tribunal shall not grant an adjournment for cross-examination of a witness except for a sufficient cause and on payment of the costs to the witness as it may deem fit.
(5) After recording the evidence of the parties, if any, and hearing the arguments, the Rent Tribunal shall pass the final order.
(Emphasis supplied)
11. The above section which is permitting the learned Rent Tribunal to direct the parties to adduce evidence starts with "at the time of grant of leave to contest" which confirms that the evidence can be only directed to be produced at the time of grant of leave, hence such exercise can be assumed only if the leave is granted. After rejection of the leave application soliciting the evidence, in my opinion, is not just defeating the object of the Act by prolonging the trials or the matter of ejectment, but at the same time it permits advantage to one side of the litigation by adducing ex- parte evidence and bringing on record the documents that ejectment petitioner was required to produce at the time of filing of ejectment petition. It is settled principle of law that when any statute provides a procedure for doing a thing in particular manner, the same should be followed and those particular manners are to be observed. I am fortified in my view by the law settled by the Honourable Supreme Court of Pakistan in case titled "Haji Muhammad Latif v. Muhammad Sharif and others" (2021 SCMR 1430). The relevant portion of the judgment is as under:- .....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.
7. It appears that the Rent. Controller being oblivious of such command proceeded with the matter us if exercising ordinary, civil Jurisdiction ordained under the Code of Civil Procedure where even after debarring the defendant to file written statement by declaring him ex parte, the plaintiff can be asked to adduce evidence and the defendant can be provided with opportunity to cross-examine. It is to be noted that the powers conferred on the Rent Controller under subsection (6) of section 22 of the Act, 2009 are more akin to the provisions of Order XXXVII, Rule 2, C.P.C. which provide that on default of defendant in obtaining leave to defend, the plaintiff shall be entitled to a decree. Likewise, in cases where a tenant is declined leave to contest, the Rent Controller is left with no option but to puss a final order."
(Emphasis supplied)
12. It appears from the reading of the impugned order that the learned Rent Tribunal has concluded that title / ownership of the Demised Premises can be decided by adducing further evidence from the side of Ejectment Petitioner. Meaning thereby it is yet to be determined if the ejectment Petitioner is a landlord of Demised Premises for which ex-parte evidence is directed to be produced. This concluding part of the impugned order is as under: - "06. The respondents are admittedly not paying the amount of monthly rent enter to the Ex-owner or to the ejectment petitioners. Hence, they cannot be allowed to contest the ejectment petition.
Consequently, the applications for leave to contest the ejectment petition are dismissed.
07. Since title deed regarding rented premises has not been annexed with the record, ejectment petitioners are directed to produce their evidence to establish their title regarding rented premises. They are also directed to produce evidence to ascertain amount of outstanding rent against the tenant. Now to come up for evidence of the petitioners on 05.04.2022."
(Underling is added)
The above approach, adopted by the learned Rent Tribunal and ignored by the learned Appellate Court, is visibly contrary to the intention of the legislature, the provisions of Act and procedure laid therein, therefore, cannot be sustained.
13. In view of the above position of law and facts, the impugned order passed by the learned Rent Tribunal as well as impugned judgment of learned Additional District Judge, Bahawalpur, are set- aside to the extent of the petitioner. The Ejectment Petition as well as the leave application of the petitioner shall be deemed to be pending before the learned Rent Tribunal, which will decide the same by following law discussed above. No order as to costs.