ANWAAR HUSSAIN, J. Through this single judgment, I intend to decide Writ Petition No. 4785/2018 filed by Muhammad Yasin ("the petitioner") as well as Writ Petition No.8386/2018 filed by respondents Nos.3 to 7 ("the respondents") as common questions of law and fact are involved therein.
2. Briefly stated facts of the case are that predecessor-in-interest of the respondents, namely, Abdul Majeed, on 01.10.2014, after issuing a notice of eviction, filed an eviction petition in respect of property measuring 06 Sarsai, more particularly described in para 1 of the eviction petition, with the averments that the rented premises was given on rent, at the rate of Rs.5,000/- per month, to the petitioner, on the basis of oral tenancy because of close relationship between the parties. Since the rented premises is a shop, the petitioner allowed hawkers to use the front of the rented premises and has been receiving rent from them at the rate of Rs.20,000/- per month. Earlier, the petitioner used to pay the rent but he stopped making payment of rent since March, 2014.
3. Application for leave to contest was filed wherein the petitioner denied the relationship of landlord and tenant between the parties on the pretext that the rented premises was sold by predecessor-in-interest of the respondents to the petitioner through an oral agreement and hence, no question of payment of rent arises. The application for leave to contest was allowed on 17.11.20.15. Issues were framed and evidence adduced by the respondents was recorded; however, the right of the petitioner to produce evidence in his defence was closed. Thereafter, learned Rent Tribunal, Burewala, vide order dated 09.03.2017, accepted the eviction petition while determining the rent due since March, 2014 at the rate of Rs.5,000/- per month. Feeling aggrieved, both sides preferred appeals, which were dismissed vide consolidated judgment dated 29.01.2018 that has been challenged by both sides through their respective writ petitions.
4. Learned counsel for the petitioner submits that it is settled principle of law that the matters should be decided on merit rather than technicalities; learned Rent Tribunal acted harshly while closing right of the petitioner to produce evidence in his defence. Adds that he also filed a suit for specific performance of an oral agreement to sell in respect of the rented premises, which was prior in time and this fact has altogether been ignored by both the learned courts below while delivering the impugned order/judgment.
5. Conversely, learned, counsel for the respondents places reliance on Fareed-ud-Din Masood v.
Additional District Judge Bahawalpur (2019 SCMR 842) and Jameel Ahmad Naaz v. Messrs Super Associate and 2 others (2016 MLD 1738 Lahore) to contend that the title cannot be determined in ejectment proceedings. He supports the findings of the learned courts below to the extent of eviction. Further submits that the respondents are aggrieved of the impugned decisions of learned courts below only to the extent of quantum of rent determined in as much as the respondents being landlord were charged Rs.30,000/- as fine in furtherance of Section 9 of the Punjab Rented Premises Act, 2009 ("the Act") being 10% of the annual rent, meaning thereby that monthly rent of the premises was approximately Rs.25,000/- per month whereas at the time of allowing the eviction petition, rate of rent has erroneously been fixed as Rs.5,000/- per month. Adds that even interim rent determined vide order dated 17.05.2016 was fixed at the rate of Rs.10,000/- per month but the arrears of the rent recoverable have been settled at the rate of Rs.5,000/- per month while passing the final order, which is against the law. Pleads for dismissal of Writ Petition No.4785/2018 filed by the petitioner and acceptance of Writ Petition No.8386/2018 filed by the respondents, which contains prayer for determination of arrears of rent at the rate of Rs.25,000/- per month.
6. Arguments heard. Record perused.
7. Admittedly, the rented premises, even today, is in the name of predecessor-in-interest of the respondents as owner who filed the eviction petition on 01.10.2014 after serving notice of eviction upon the petitioner. As regards assertion of the petitioner that he purchased the rented premises from predecessor-in-interest of the respondents through an oral agreement to sell for which he instituted a suit for specific performance of oral contract, suffice to state that during the course of arguments, learned counsel for the petitioner admits that the said suit was dismissed on merits by learned trial court and appeal preferred there against was also dismissed by learned appellate court below and now the matter is pending adjudication before this Court. As the matter relating to title on the basis of oral agreement to sell is pending, it would be against the doctrine of propriety to discuss the same in the instant proceedings emanating from an eviction petition. However, it is settled law that an agreement to sell or a suit for specific performance instituted on the basis of the same does not debar the eviction in accordance with law. Insofar as the contention of learned counsel for the petitioner that the suit for specific performance was prior in time is concerned, it has been admitted during the course of arguments that notice for eviction and recovery of rent was sent by predecessor-in-interest of the respondents to the petitioner where after, the suit for specific performance was filed. Hence, it appears that the suit was filed as a counterblast to circumvent the eviction proceedings. Even otherwise, it is settled principle of law that if the tenancy is not in writing, the owner of the premises will be presumed to be the landlord and occupier thereof as the tenant unless the contesting tenant like the petitioner can come up with a declaration to the contrary from the court of a competent jurisdiction. Mst. Seema Begum v.
Muhammad Ishaq and others (PLD 2009 SC 45) is referred. In a recent reported case titled Mrs. Azra Riaz v. Additional District Judge and others (2021 CLC 623), this Court has followed Seema Begum supra and held that by virtue of the title, the owner is presumed to be the landlord and said presumption of law is required to be rebutted by preponderance of evidence by the other side.
Reliance of learned counsel for the respondents on Fareed-ud-Din Masood supra is well placed as dispute regarding the title of the property cannot be determined in H eviction proceedings.
Similarly, no plausible explanation has been put forth to persuade this Court that an illegality was committed by learned Rent Tribunal in closing the right of defence of the petitioner, which can merit interference inasmuch as right to produce evidence was closed vide order dated 14.06.2016 after providing multiple opportunities to the petitioner to produce the evidence with an explicit warning about the consequences of failure to adduce the same. Eviction proceedings are being carried out under the Act, which is a special law that mandates its conclusion within a stipulated period of time, i.e., four months as contemplated under Section 27 and more importantly, under Section 25 of the Act only two opportunities are to be given to each side to adduce the evidence.
Hence, the writ petition of the petitioner is without any substance.
8. As regards the connected writ petition filed by the respondents, it is noted that one of the grounds for enhancement of rate of monthly rent is the payment of Rs.30,000/- as fine in terms of Section 9 of the Act by predecessor-in-interest of the respondents. It is claimed that as predecessor-in-interest of the respondents was required to pay the said amount as fine in terms of Section 9 of the Act, 2009, which makes the monthly rent around Rs.25,000/-, therefore, final determination of arrears of rent due must be at the rate of Rs.25,000/. The second ground of enhancement is that Rs.10,000/- per month was determined under Section 24 of the Act as tentative rent, therefore, grant of recovery of arrears of rent at the rate of Rs.5,000/- per month is not justified and is much below the amount on which fine has been received by the landlord or the tentative rent, which learned Rent Tribunal itself determined. This entails analysis of different stages of eviction proceedings before learned Rent Tribunal under the Act, where determination of amount of rent is required to be made and dealt with Section 9 comes into play at the time of assumption of jurisdiction regarding entertaining the application and when the case is at its nascent and preliminary stage. On the other hand, Section 24 comes into play when both the parties are before the court and have laid down their respective case through pleadings before learned Rent Tribunal and the contours of dispute between the parties have been lighten up. Lastly, determination of rent takes place in terms of the final order passed in the eviction proceedings as defined under Section 2(b) of the Act, 2009. In view of the discussion hereinabove, following legal questions require determination by this Court while analysing different stages of proceedings before learned Rent Tribunal:
1. Whether the rate of rent calculated for the purposes of payment of fine in terms of Section 9 is to be considered conclusive determination with regard to rent agreed to be paid by and between the landlord and the tenant? And
2. Whether the amount of final rent due at the time of passing the final order in the eviction proceedings cannot be less than the tentative rent determined under Section 24 of the Act or the amount taken as monthly rent for the purpose of calculation of fine under Section 9?
9. It is imperative to understand the rationale and philosophy behind the imposition of fine in terms of Section 9 as well as tentative rent to be determined under Section 24 of the Act and rate of rent due as part of final order. Section 9 is reproduced hereunder: "9. Effect of non-compliance.---If a tenancy does not conform to the provisions of this Act, the Rent Tribunal shall not entertain an application under this Act-
(a) on behalf of the tenant, unless he deposits a fine equivalent to five percent of the annual value of the rent of the premises in the Government treasury; and
(b) on behalf of the landlord, unless he deposits a fine equivalent to ten percent of the annual value of the rent of the premises in the Government treasury."
Perusal of Section 9 reveals that it is a penal provision for failure to bring the tenancy agreement in conformity, with the provision of the Act qua its registration under Section 5 of the Act. Therefore, Section 9 places a bar upon learned Rent Tribunal in entertaining any application under the Act including ejectment petition unless the fine by the landlord or the tenant, as the case may be, is paid in cases where the tenancy is not created in accordance with provisions of Section 5, which is precisely the situation in the instant case. The fine and its deposit is a step that enables learned Rent Tribunal to entertain the applications under the Act. This step is taken when the ejectment petition is filed and notices upon the respondents are yet to be served and respondents are yet to appear in consequence of such notices to seek grant of leave. For this purpose, the annual rent is determined in terms of Section 9 on the basis of the tenancy agreement if the same is written and in case of 'oral tenancy, the rent mentioned in the application made by a party. In the present case, predecessor-in-interest of the respondents in his ejectment petition claimed rent of Rs.25,000/- per month, which makes the annual rent around Rs.300,000/-. Thus, Rs. 30,000/- was rightly imposed as fine in terms of Section 9 of the Act. However, this does not mean that the rent so determined is final or conclusive as determination under Section 9 is an exercise to be carried out by learned Rent Tribunal for assumption of jurisdiction only. Even otherwise, the determination of the rate of rent for the purpose of deposit of fine under Section 9 is a matter between the court and the applicant which could be either landlord or the tenant as is evident from bare reading of Section 9. For instance, if an application for deposit of rent by the tenant is made before learned Rent Tribunal on the ground that the landlord has refused to receive the rent and the tenant intends to deposit the same before learned Rent Tribunal and the tenant alleges a lesser amount of rent agreed between the landlord and the tenant under oral tenancy than what it actually was agreed between both of them, in such situation, the tenant would be depositing fine at the rate of 5 % of the annual rent disclosed by the tenant before learned Rent Tribunal. However, this would not render the same as conclusive determination of the rate of rent between the landlord and tenant as the canvass of litigation remains open for the landlord to come forward and substantiate that the actual rent is higher than what the tenant has stated in his application. Therefore, the interpretation put forward by the respondents fails to hold water. It is also pertinent to note that Section 9 and the deposit of fine thereunder is part of Chapter II of the Act that relates to "Creation of Tenancy". Moreover, violation of regulatory provisions under this Chapter is a matter between the state and the delinquent and the same cannot be construed as determination of the rights of the parties inter se. The above discussion clearly brings out the legislative intention that the rate of rent calculated under Section 9 for determination of amount of fine is not to be considered as rent agreed between the landlord and the tenant.
10. This takes me to the examination of Section 24 of the Act to ascertain its scope. Section 24 is reproduced hereunder: "24. Paym ent 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 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).
(3) In case the tenant has not paid a utility bill, the Rent Tribunal 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."
A bare reading of Section 24 also reveals that at the time of grant of leave to contest, learned Rent Tribunal is to direct the tenant to make payment of monthly rent till the adjudication of eviction petition. However, where there is a dispute as to the rate of rent, learned Rent Tribunal is to determine tentative rent to be paid by the tenant till the final decision of the eviction petition. The actual amount of rent due only surfaces at the time of passing of the final order, which under Section 2(b) of the Act has been defined as under: "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". (Emphasis supplied)
Perusal of the term 'final order' reveals that it is an order whereby the proceedings before learned Rent Tribunal come to an end and any amount paid prior or during the course of proceedings can be on higher or lower side and is to be finally adjusted in the final order. Therefore, the second ground for enhancement of rent by the respondents is also devoid of merit in view of the fact that the tentative determination under Section 24 is neither conclusive nor final rather the same is for the interregnum period of grant of leave to contest and final adjudication of the petition and subject to final determination at the time when the lis is ultimately disposed of on the basis of evidence produced by the parties respectively. Therefore, final rate of rent can be lesser or greater than the rent tentatively determined as the latter is make-shift arrangement till the final determination is made by learned Rent Tribunal by passing the final order.
11. In the instant case, the connected petition filed by the respondents also fails as the determination of final rent due at the rate of Rs.5,000/- is not only valid in the light of above- referred discussion but also on the basis of available record. Learned Rent Tribunal after complete trial and recording of evidence has allowed the recovery of arrears of rent at the rate of Rs.5,000/-.
In this regard, it is worth mentioning that in his eviction notice (Exh.A/3), the predecessor-in- interest of the respondents- made averments that under oral tenancy, the petitioner is occupying the rented premises at the rate of Rs.5,000/- per month. Having himself made a clear assertion regarding the rate of rent during the currency of the tenancy period, the claim for enhancement of rent by, the respondents is unjustified. Relevant portion of the notice is reproduced hereunder: (Emphasis provided)
On the contrary, in the ejectment petition, claim of rent is made on the basis of a purported oral receipt of monthly rent of Rs.20,000/- by the petitioner from hawkers in addition to Rs.5000/- agreed between the parties and this fact has been properly appreciated by the lower courts below in their concurrent findings that since the hawkers are not using the rented premises rather putting their carts on the public road, the respondents are not entitled to enhanced rent on this account.
12. There are concurrent findings of fact against the petitioner as well as the respondents that are immune from interference by this Court in its constitutional jurisdiction unless there is some gross illegality floating on their surface, which could not be pointed out by learned counsel for the parties hence, no interference is warranted in the circumstances.
13. In the light of what has been discussed above, both the writ petitions lack merit. The same are accordingly dismissed.