JAWAD HASSAN, J.---This judgment will dispose of the instant writ petition as well as Writ Petition No.49902 of 2019 because both are interconnected with each other.
I) BRIEF HISTORY OF THE CASE:
2. Brief facts necessary for proper adjudication of the matter in hand are that the Petitioner/Habib Bank Limited (the "Bank") is in possession of ground floor of the property measuring 1450-sqft known as 'Abdullah Chambers' bearing No.BIII-IS-20, located at opposite Overhead Bridge, G.T.
Road, Gujranwala (the "Property") as per the lease agreement dated 22.03.2006 (the "Lease Agreement") executed with thirteen, persons/co-owners, including Respondent No.1 who subsequently;, filed the eviction petition without any partition and determining his share/claim regarding the Property. Thereafter, litigation was started between several co-shares of the Property and the Bank also instituted an Interpleader Suit on 29.06.2013 before the concerned Civil Court at Gujranwala by impleading thirty-nine persons as Defendants in the said suit, who were claiming rent from it. The matter is still pending before the Civil Court for determining status of the landlord/owner of the Property and the Bank has been depositing rent in the Government Treasury pursuant to order dated 08.10.2013 of the Civil Court. On 22.04.2017, Respondent No.1 moved an eviction petition before the Rent Tribunal, Gujranwala which, while dismissing the Petitioner's application for leave to contest, accepted the eviction petition, vide order dated 12.07.2017, by directing the Bank to vacate the Property and also pay monthly rent from 12.02.2015 till the date of eviction. The Bank, then, preferred an appeal which was allowed by the Additional District Judge with certain observations and the matter was remanded back to the Special Judge Rent for a fresh decision. During the remand proceedings, Respondent No.1 filed an application under Section 24 of the Punjab Rented Premises Act, 2009 (the "Act") and the Special Judge Rent directed the Bank to deposit Rs.500,000/-, per month, in the Court till 10th of every month, vide order dated 04.09.2018.
The Bank, however, moved three miscellaneous applications, one of which is to recall order dated 04.09.2018 but the Special Judge Rent dismissed all those applications and also proceeded to pass the final order in terms of section 24 of the Act. The parties, then, again approached the Lower Appellate Court which dismissed their appeals, therefore, the execution proceedings have been started where warrant of possession along with permission of lock break, wall break and police assistance have also been issued and ultimately, the matter has been agitated before this Court by the parties in this writ petition as well as the connected writ petition.
II) PETITIONER'S ARGUMENTS:
3. Sardar Kalim Ilyas, ASC submitted that the rent laws in Pakistan contain provisions for the determination of tentative rent or approximate rent if there is a dispute as to the amount of rent due or rate of rent, etc. which is required to be paid by the tenant, who admits the relationship of landlord and tenant, till the final disposal of the eviction proceedings. In this regard, provisions of section 13(6) of the (repealed) Punjab Urban Rent Restriction Ordinance, 1959 and section 17(8) of the Cantonments Rent Restriction Act, 1963 can be taken into consideration. He further submitted that in the repealed ordinance and other rent laws, there was/is a concept of 'fair rent', which is determined by the Rent Controller/ Tribunal on application of the concerned party, while in the Act, no mechanism or provision has been provided in this regard. He added that in other rent law's, the presence of concept of fair rent side by side with rent due and tentative/approximate rent, makes it clear that the fair rent concept is not to be mixed up with the determination of rent due or tentative/approximate rent because it has nothing to do with the market rental value or rental value in the vicinity, rather it would be applicable when dispute relates to determination provisionally considering material on record e.g. rent receipts, deposit slips, and if there is a lease agreement then such dispute does not arise. He maintained that the provisions and concept of fair rent is different from the rent due, which is dependent on the agreement of the parties, or in case, of dispute as to rent due, tentative rent also has relation with agreement of the parties and separate provisions exist under respective law. He stated that the Act gives primacy to tenancy agreement as executed between the parties and the concept of rent due, depends on the tenancy agreement (whether written or oral) and in case of dispute as to rent due, tentative rent can be determined on the basis of material on record produced by the parties in the form of lease agreement, rent note, receipts, etc. He clarified that the tentative rent cannot be determined without proper scrutiny of the material on record as well as stance of both the parties.
4. Sardar Kalim Ilyas, ASC contended that the important factor/ criterion for determination of tentative rent, if need arises despite presence of written tenancy agreement, especially, where there is a written tenancy agreement, is that even after expiry/termination of the tenancy 'agreement and even during pendency of eviction proceedings, the terms and conditions of the expired tenancy continue to govern the relationship- of the parties to tenancy agreement and this factor of continuation of the tenancy relationship as well as the aliveness of tenancy agreement, further shows that the issue of determination of tentative rent does not arise in such scenario because tenancy agreement determines the rent due and even if there is any dispute as to what amount is due under the tenancy agreement, it is the tenancy agreement that would be considered for determination of tentative rent whereas the criterion for determination of tentative rent cannot go beyond the material available on record produced by the parties, and in presence of the tenancy agreement (or other like documents e.g. rent receipts), the rent due or tentative rent is the rent as evident from the material available on record. He pleads that the rent as agreed upon between the parties with their free will and having reached at through a private agreement, the same will continue to be. in force even after expiry or termination till the time the tenant remains in possession and is not evicted after due process of law under the Act. He submitted that the determination of tentative rent requires at least a summary inquiry and without such inquiry, it cannot be determined. Adds that if the tenancy is written and also established from the relevant documents, like tenancy agreement/lease agreement/rent note, the question of dispute about rent due does not arise and even if one party raises any dispute in this connection, the tenancy agreement determines the tentative rent and in case there is no tenancy agreement, other documents, e.g., rent receipts, deposit slips, are relevant factor. He argued that if the matter is that of oral tenancy and there is no documentary proof regarding rent due or any material on record, the tentative rent has to be determined considering the facts and circumstances of. each case.
Sardar Kalim Ilyas, ASC submitted that section 24(1) of the Act talks about "rent due", which is the rent as agreed between the parties, and not the fair rent or market rent while subsection (2) of this Section again states that if there is dispute as to "rent due" or rate of rent, it is only with respect to "rent due" that the tentative rent is to be determined and not with reference to market rent or fair rent, therefore, the inherent criterion provided in section 24 is the "rent due" which in turn depends on agreement of the parties/tenancy agreement, particularly, in case of written tenancy or where written material is available on record and no extraneous factors can be considered e.g. market rent. He explained that when section 24 of the Act, among other provision, is read with section. 5(b) of the. Act [the tenant has failed to pay rent as stipulated in section 7] and section 7 [payment of rent per tenancy agreement] of the Act, it is evident that the rent in respect of which there is failure and becomes ground for eviction, is the rent as agreed between the parties in their tenancy agreement. Thus, in addition to other provisions, it is once again, clear that section 24(1) or (2) of the Act speaks of rent as agreed between the parties and if any dispute arises then tentative rent has remained within that scope and cannot be based on extraneous factors. He next argued that the eviction petition was not entertainable because the mandatory requirement of Section 9 of the Act regarding payment of 10% fine was not fulfilled and no proceeding to determine the case on merit shall be conducted and continued by the Court, until and unless the said fine is deposited. He contends that the Rent Tribunal failed to appreciate the pendency of three applications and held the Petitioner responsible for not paying rent, vide order dated 04.09.2018, besides ignoring the aforesaid material aspects, and also no final opportunity of hearing was granted to the Bank before passing the penal order of eviction. Even otherwise, if the Petitioner was liable to pay the monthly rent, mentioned in order dated 04.09.2018, the same could not have been held to be payable unless its applications had been decided. Sardar Kalim Ilyas, ASC empathetically argued that the final eviction order is without jurisdiction and contrary to law because Section 24 of the Act was not applicable on the facts and circumstances of the case, as pointed out above. He stated that the Lower Appellate Court has also failed to appreciate the aforesaid aspects in true perspective and passed the impugned judgment by misconstruing the law laid down by the Hon'ble Supreme Court of Pakistan in the judgment reported as Mian Umar Ikram-Ul-Haque v. Dr. Shaitida Hasnain and another (2016 SCMR 2186). In support of his contentions, he has placed reliance on the judgments, reported as Zia Ullah Shah v. Syed Riaz Ahmad (1981 SCMR 538), Rana Abdul Hameed Talib v. Additional District Judge, Lahore and others (PLD 2013 SC 775), Abdul Latif and another v. Messrs Parmacie Plus (2019 SCMR 627), Muhammad Nasir v. Naseer-ud-Din and 2 others (2000 MLD 625), Pervaiz Masood Dar v. Riffat Masood Dar (2007 CLC 140), Major (R) ljaz Azizi v. Muhammad Shahzad Hang and another (2007 MLD 542), Mst. Shagufta Shaheen v.
Muhammad Ismail Qureshi and 2 others (PLD 2011. Peshawar 328), Muhammad Akram v.
Muhammad Ilyas Cheema and another (2014 MLD 426), Muhammad Aamir Malik v. Mrs. Afshan Ateeq and another (2019 YLR 1690), Sheraz Pervaiz Mustafa v. The Special Judge (Rent), Lahore and others (2019 MLD 2095) and Mrs. Azra Riaz v. Additional District Judge and others (2021 CLC 623).
III) RESPONDENTS' ARGUMENTS:
5. Syed Tassadaq Murtaza Naqvi, Advocate submitted that although the compliance of Section 9 of Act has been held by the superior Courts of the country to be mandatory for any proceedings under the Act before the Rent Tribunal, however, it is for the Rent Tribunai to see whether the tenancy is in conformity of the Act or not. If, the tenancy is not in compliance of the requirements laid down in Section '9 of the Act then the Rent Tribunal shall proceed subject to deposit of fine paid by the party approaching the Rent Tribunal. He further submitted that in present case, the proceedings initiated under the Act were related to change of ownership when an application under Section 30 of the Act was filed, although the petition was dismissed due to dispute inter-se between the owners, however, relationship of the landlord and the tenant was accepted by the Court. He argued that the Court also exempted the penal clause of section 9 of the Act while the superior Courts in various judgments passed from time to time have settled the principle that such exemption cannot be allowed for the reason that it is a statutory obligation which is mandatory in nature but at the same time, it has also been declared in those judgments that act of the Court shall not, cause prejudice in any manner, therefore, the tenant shall not derive benefit of the mistake rendered by the Rent Tribunal. He next contended that the Rent Tribunal shall assess the case and then decide the fine due and pass an order in this regard providing a time frame to the person filing application before the Tribunal to pay the fine so that the Tribunal may be allowed to proceed on merits of the case but since no order was passed by the Rent Tribunal directing the Respondent, Ayub ul Hassan Khokhar, to pay the fine, the error rendered by the Rent Tribunal cannot be attributed to him at this stage, who would have paid the fine if ordered by the Tribunal.
He stated that the Petitioner-Bank started paying Rs.75,000/- admittedly when their stance is that rent was Rs.60,000/- as per the rem agreement then the questions arise that how was that rent determined and what was the mechanism through which that was assessed? He, lastly, submitted that another tenant namely Mughal Associates of the same property filed Writ Petition No.247188/2018 before this Court challenging the eviction and enhancement of rent but the same was dismissed vide order dated 06.11.2018. He contended that since the Respondent was not directed by the Rent Tribunal at the relevant time to deposit the mandatory fine under Section 9(b) of the Act, therefore, he may now be granted permission to submit the said fine, in the interest of justice.
IV) MOOT POINTS:
7. During the course of arguments, on 15.03.2022, the, following moot points have been framed by this Court: i) What is the criteria for the Rent Tribunal to tentatively determine the rent under Section 24(1) and (2) of the Act? ii) Under the rent laws how the rent is tentatively determined in respect of a property? iii) Whether the Court can exempt the mandatory requirement of Section 9(b) of the Act, if so, at which stage? iv) Whether the fine/penalty of Section 9(b) ibid can he paid/deposited during the pendency of Writ Petition?
V) DETERMINATION BY THE COURT:
6. It is to be noted that in Writ Petition No.36795/2019, the Petitioner-Bank has challenged the wires of impugned orders/ judgment dated 04.09.2018, 18.02.2019 and 18.04.2019 of the Courts below while Ayub ul Hassan Khokhar, who is Respondent in the instant writ petition, has also filed separate Writ Petition No.49902/2019 seeking a direction from the Court to the Bank to pay rent at the rate of Rs.500,000/-, per month, since 2008 instead of September 2018. Now, before proceeding further, it is necessary to first discuss the aforesaid moot points.
MOOT POINTS NOS.1 AND 2 (Tentatively Determination of Rent)
7. I would like to collectively discuss these moot points. Before promulgation of the Act, the law which governed the rent matters, was the West Pakistan Urban Rent Restriction Ordinance 1959 (the "1959 Ordinance"). Under section 13(6) of the 1959 Ordinance, the Rent Controller had the authority to determine rent (such amount approximately) and consequently, direct the tenant to pay the same before the date to be fixed for the said purpose. Since the promulgation of the Act, the Rent Controller, by virtue of section 24(1) and (2) of the Act, shall now direct the tenant to deposit the rent within a specific time period and if any dispute arises as to the amount of rent or the rate of refit arises, the Rent Tribunal shall tentatively determine the amount of rent and pass an order for deposit of the rent in terms of Sub Section (1). For ease of the matter, relevant part [Subsections (1) and (2)] of section 24 of the Act is reproduced hereunder:
24. Payment of rent and other dues pending proceedings.-- (I) 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 Tribunal in the bank account of the landlord or in the Rent Tribunal 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 subsection (1).
From bare perusal of the afore-quoted provisions of Section 24 of the Act, it is perspicuous that the term 'tentatively' although is incorporated, however, the criteria, conditions, factors or ingredients thereof are lacking. It is the discretion of the Rent Tribunal to tentatively determine the amount of rent or the rate of rent of a property, which the landlord has legitimate right to demand from the tenant. By way of analogy, these moot points, which precisely hinge upon the determination or in other words, the criteria to determine or make the tentative assessment as to the amount of rent or the rate of rent, which the Rent Tribunal under Section 24(1) and (2) of the Act can fix. It would also be advantageous to mention here that the Sindh Rented Premises Ordinance, 1979 (the "1979 Ordinance") is more conducive as to the criteria in determining the rate or amount of rent by the Rent Controller, Section 2(c) of which defines the fair rent of any premises determined by the (Rent)
Controller under this Ordinance. According to Section 8(1) of 1979 Ordinance, the Rent Controller is saddled with the authority to determine fair rem of the premises after taking into consideration the certain factors. To better understand Section 8(1) and (2) of 1979 Ordinance is given as under: 8(1) The Controller shall, on application by the tenant or landlord determine fair rent of the premises after taking into consideration the following factors: -
(a) the rent of similar premises situated in the similar circumstances, in the same or adjoining locality;
(b) the rise in cost of construction and repair charges;
(c) the imposition of new taxes, if any, after commencement of the tenancy; and
(d) the annual value of new premises, if any, on which property tax is levied.
" (2) Where any addition to, or improvement in, any premises has been made or any tax, or other public charges has been levied, enhanced, reduced or withdrawn in respect thereof, or any fixtures such as lifts or electric or other fittings have been provided thereon subsequent to the determination of the fair rent of such premises, the fair rent shall, notwithstanding the provisions of Section 9 be determined or, as the case may be, revised after taking such changes into consideration."
The legislative intent of the aforesaid provisions of the 1979 Ordinance can be gauged from the very fact that it allows the (Rent) Controller to exercise his/her discretion in order to determine fair rent, which is premised on the aforesaid factors, which includes rent of similar premises situated in similar circumstances in the same or adjoining locality, rise in cost of construction and repair charges, the annual value of premises etc. The said factors can well be read so as to tentatively determine the rate of rent or the amount of rent as envisaged under the Act. In this regard, reliance can be made on the judgment reported as State Life Insurance Corporation of Pakistan and ,another v. Messrs British Head and Footwear Stores and others (2018 SCMR 581) in which the Hon'ble Supreme Court of Pakistan has held that: "it is not necessary for a landlord to prove hike in respect of all four factors as detailed in section 8 of the Sindh Rented Premises Ordinance, 1979, or that all four factors must co-exist in each' and every case seeking fixation of fair rent. Infact, the prime factor has always been the prevalent market rent of the similar premises situated in similar circumstances, in the same or adjoining locality."
Further reliance can be placed on the judgment reported as Abdul Rehman and another v. Zia- ul-Haque Makhdoom and others (2012 SCMR 954), relevant Paragraph No.4 of which is reproduced hereunder: "Heard. As far as the legal proposition involved in the matter about the interpretation of section 8 of the Ordinance is concerned, we are unable to agree with the learned counsel for the appellants that because plural has been used in the section (i.e. factors) or the expression "any of the factors" is missing, thus, on that account the section should be construed to mean that all the conditions envisaged by the section must co-exist before the Rent Controller, should fix the fair rent. The clear language of the section is free from any ambiguity and there can be no other interpretation except that each of the 'factor' enumerated therein is an independent factor for the purposes of enabling the Rent Controller to make the fixation of the fair rent. It is neither the intention, purport, purpose of law nor the spirit thereof, that the factors should be construed and considered as integrated. However, there. can always be a possibility that where more than one of such factors are made the basis for the fixation claim, if those are prevalent and proved the Controller may determine the fair rent on the basis of more than one of such factors. Therefore we are of the firm opinion that while fixing the rent the Rent Controller is not bound to consider and construe the factors provided in the section ibid as a composite whole rather independent of each other, but it shall always be permissible that one factor may Supplement the other, facilitating the fixation-of rent by the Controller. We have considered the case law cited by the learned counsel for the appellants at the bar and find no enunciation of law therein as has been argued, to' hold that all the factors are inseparable and must be taken together and on the proof of all only the fair rent can be fixed. Therefore we do not find any merit in the first plea of the learned counsel for the appellants which is accordingly discarded."
To further understand this provision of law, the verdict given by the august Supreme Court of Pakistan (in Paragraph No.5) of the judgment cited as Tariq Ali Baqar v. New Goodwill Computers and others (2011 SCMR 554) can also be taken into consideration, which reads as under: "To determine the fair rent, on an application filed by the landlord or tenant is the exclusive jurisdiction of the Rent Controller and any agreement between the parties not to seek determination of fair rent cannot bar the jurisdiction of the Rent Controller, if that has not been already done. The Court would not permit one of the contracting parties to take advantage of an unusual or onerously terms consideration, as it would deprive the other party from his legitimate rights."
While in judgment cited as Messrs Oceanic International (Pvt.) Limited v. Messrs Lalazar Enterprises (Pvt.) Limited and others (2010 SCMR 737), the Hon'ble Supreme Court of Pakistan has interpreted the provisions of section 8 of the 1979 Ordinance in the following terms: "A bare reading of the above provision of law reveals that the learned Rent Controller, while fixing the fair rent, is required to consider the above conditions. The words 'cost of construction and repair charges' include labour charges, maintenance and renovation etc."
In another judgment reported as Messrs Victor Restaurant through Partners v. State Life Insurance Corporation of Pakistan and others (2010 SCMR 745), the apex Court of the country has held that: "A perusal of the above provision of Jaw reveals that no date has been fixed for applicability of the enhanced fair rent as such a discretion lies with the learned Rent. Controller to take the date of implementation from the date of filing of application or passing of the order or in between them."
The Sindh High Court at Karachi in a judgment cited as Muhammad Raheel Kamran v. 1st Additional District Judge, Karachi (East) and 2 others (PLD 2022 Sindh 52) has also rendered some view on fair rent in terms of Section 8 of the 1979 Ordinance, relevant portion from Paragraph-5 of reads as under: "The plain language of the section 8(1) of the Ordinance prima facie requires the Rent Controller to consider above four aspects while determining fair rent. All the above four aspects are independent in nature and character therefore every independent aspect would be a factor affecting upon quantum of fair-rent but failure of any of them would not result in rejection of the application."
In the case of Habib Bank Limited v. Rais Ahmed Khan and 6 others (PLD 2017 Sindh 542) the following principle has been settled by the Sindh High Court at Karachi: "It is now a well settled principle of law that it is not necessary that all such four factors must be satisfied or fulfilled by the landlord whole making a request for fixation of fair rent, upon fulfillment of even one condition, the Rent Controller is authorized under the law to fix the rent of a property since cumulative effect of all the four factors, as mentioned in the instant section, is to be kept in mind by the Rent Controller while fixing the fair rent."
The rationale developed by this Court in the judgment reported as Syed Gulzar Ali Shah v.
Additional District Judge and others (2014 CLC 929) reads as under: "In any eventuality, the petitioner had a remedy of complying with the tentative rent order so as to prove his case by production of evidence and to seek adjustment of the rent, if any, paid in excess. He could not take him upon himself to decide that the orders passed by the Rent Tribunal were illegal and therefore did not merit compliance."
MOOT POINTS NOS.3 AND 4 (Exemption of section 9 of the Act)
8. As regard the questions raised in these moot points whether the Court can exempt the mandatory requirement of Section 9(b) of the Act, if so, at which stage and if it is not exempted then whether such fine/penalty can be paid or deposited during pendency of the writ petition, pertinent to mention here that though the compliance of Section 9 of Act has been held by the superior Courts of the country to be mandatory for any proceedings under the Act before the Rent Tribunal yet it is for the Rent Tribunal to see whether the tenancy is in confirmity of the Act or not. If, the tenancy is not in compliance of the requirements laid down in Section 9 of the Act, the Rent Tribunal shall proceed subject to deposit of fine paid by the party approaching the Rent Tribunal. In the case in hand, first proceedings which began under the Act were related to the change of ownership when an application under Section 30 of the Act was filed and although the said application was dismissed due to dispute inter-se between the owners, however, relationship of the landlord and the tenant was accepted by the Court. Most importantly, the Court also exempted the penal clause of Section 9 of the Act. The Hon'ble Supreme Court of Pakistan in a number of judgments, some of which will be referred below, has given view that such exemption cannot be allowed for the reason that it is a statutory obligation, which is mandatory in nature, but at the same time, it has also been declared in the said judgments that the act of Court shall not cause prejudice in any manner, therefore, the tenant cannot be given benefit of the mistake rendered by the Rent Tribunal. The Hon'ble apex Court of the country has also declared, in a number of judgments, that the Rent Tribunal shall assess the case and then decide the fine due and pass an order in this regard providing a time frame to the person filing application before the Tribunal to pay the fine so that the Tribunal may be allowed to proceed on merits of the case. Since no order was passed by the Rent Tribunal directing the Respondent/Ayub-ul-Hassan Khokhar to pay the fine, the error rendered by the Rent Tribunal, cannot be 'attributed to the Respondent at this stage, who would have paid the fine if ordered by the Tribunal.
Following are the judgments on the issue of depositing fine under Section 9 of the Act with the law points discussed therein: In Paragraph-12 (line No.5) of the judgment reported as Rana Abdul Hameed Talib v. Additional District Judge, Lahore and others (PLD 2013 SC 775) the Hon'ble Supreme Court of Pakistan has held that: "the matters are either pending before the Rent Tribunal where some (considerable) proceedings having already taken place, or the Rent Tribunal have finally decided the matter before it by overruling the objection of the respondent in the context of section 9 and the further challenge thereto is pending in appeal or before the High Court in its constitutional jurisdiction, or even before this Court. In my opinion all such Courts seized of the matter shall halt the proceedings and should direct the original petitioner/applicant of the case to first pay the fine as mandated by Section 9, by determining the exact amount payable and by fixing the period in which the needful should be done; and if the amount of fine is paid, the case/matter shall be proceeded and decided on merits"
In another case reported as Malik Abdul Aziz Awan and another v. Rana Maqbool Ahmed Khan and others (2012 SCMR 91) the august Supreme Court of Pakistan has given the following verdict: "As far as the first submission is concerned, suffice it to say that the objection of the petitioner about the maintainability/ entertainment of the eviction application of the respondent was decided by the Tribunal vide order dated 19-1-2010. This order was not further challenged through any constitution petition, furthermore, when the final ejectment order dated 16-3-2010 was passed by the Tribunal the petitioner in appeal before the Additional District Judge did not challenge order dated 19-1-2010. The argument, that it was assailed in the constitution petition at the time of challenging the final order of the Rent Tribunal and the appellate forum; suffice it to say that such would not be relevant, as the order had to be challenged at the first available opportunity."
The rationale of this Court in the case of Mrs. Azra Riaz v. Additional District Judge and others (2021 CLC 623) also reads as under: "The palpable object of the law is to compel the parties to enter into a tenancy agreement within the purview and scope of the provisions of sections 5, 6 and 7 of the Act. Therefore, a penalty has been provided by the law for the breach of the obligations, envisaged thereby. in that, where the tenancy agreement is not so entered and registered and a landlord or the tenant approaches the Tribunal for the enforcement of his right(s) under the Act, he has to pay a fine. Non-registration of rent agreement or oral tenancy is an irregularity that entails penal consequences. The said petition can be entertained subject to payment of fine as enshrined in section 9 of Act."
This Court has further elaborated the scope of Section 9 of the Act in the case of Mahboob Hussain Malik v. Additional District Judge Lahore (2013 YLR 473) by holding that: "Following the above interpretation of section 9(b) of the Act, an omission or failure to deposit the requisite fine at the time of filing the ejectment petition is not fatal but can be remedied by the landlord if he deposits the fine later upon being allowed to do so by the special Court (Rent)."
While, in the judgment, reported as Khalil Ahmed v. Additional District Judge and others (2013 CLC 258) it has been held that: "Even otherwise, according to section 9, it is duty of the Rent Tribunal to see as to whether the 10% of the annual rent as fine was deposited or not and if the Court does not give any finding in that regard, the party concerned cannot be made to suffer subsequently due to the act of the court.
It has been further held in Muhammad Asad Malik v. Rent Controller, Bahawalpur and others (2012 CLC 888) that: "As the provision is directory in nature, therefore, keeping in view principles as laid down by this Court and august Supreme Court of Pakistan for deposit of court -fee it is fundamental duty of the Court first to determine the amount and give chance to deposit the same within specified period.
The Special Rent Tribunal has not ordered for deposit of the same. Therefore, no one can be punished for act of the Court. Even otherwise, deposit of fine is a matter between the ejectment petitioners and the State and the writ petitioner cannot take benefit of non-compliance of this provision of law."
9. As regards the merits of this case, it is clearly depicted from perusal of impugned order dated 04.09.2018 that copies of few receipts were produced by the Bank, which do not clarify the situation that in whose account (the Respondent namely Ayub-ul-Hassan Khokhar or other co-shares of the property) the rent is being deposited, while as per its own version, the property is still joint between several co-sharers, including the Respondent/Ayub-ul-Hassan Khokhar, being one of them, and the Rent Tribunal is the only forum to determine this aspect. Moreover, rate of rent is not denied by the Bank and the Rent Controller has rightly directed the tenant/Bank to deposit monthly rent, on tentative basis, at the rate of Rs.500,000/- per month in the Court till 10th of each month by subjecting the said payment to adjustment at final stage in the rent dues payable towards it. The impugned order dated 28.02.2019 shows irresponsible behavior of the Bank towards payment of tentative rent, as directed by the Rent Tribunal in the aforesaid order (dated 04.09.2018), therefore, the final ejectment order passed in terms of Section 24 of the Act is justified. At appellate stage, the Additional District Judge has also rightly passed the impugned judgment dated 18.04.2019 after discussing in detail the role of the Bank regarding payment of rent and relying on the judgment of the Hon'ble Supreme Court of Pakistan, reported as Mian Umar Ikram-ul-Haque v. Dr. Shahida Hasnain and another (2016 SCMR 2186), holding that relationship of landlord and tenant is an essential question and it has direct impact upon the assumption and exercise of jurisdiction by the Rent Tribunal under section 24 of the Act.
10. In view of the above legal scenario based on the interpretation of relevant provisions of applicable law in light of the reported judgments of the Superior Courts of the country, I find no illegality or perversity in the impugned orders. The instant petition fails and is accordingly, dismissed while connected Writ Petition No. 49902/2019 filed by the Respondent/Ayub-ul-Haasan Khokhar is being disposed of in terms that as the landlord to whom rent is being paid will meet the requirements of section 9(b) of the Act, being a statutory obligation, as discussed above, and the Bank is directed to deposit rent at the rate of Rs.300,000/- per month, instead of Rs.500,000/- per month, from 2008, however, if any amount is paid in excess towards the tentative rent, the same shall be adjusted at the time of execution.