Possession can be restored to Tenant

PLJ 2012 Islamabad 161

Present: Riaz Ahmad Khan, J.

SAEED AHMED--Petitioner

versus

Mrs. REHANA ZAHID and 2 others--Respondents

W.P. No. 1008 of 2010, decided on 21.2.2012.

Islamabad Rent Restriction Ordinance, 2001--

----S. 17(4-A)--Ejectment petition--Personal bonafide need--Expiry of lease agreement--Ejectment can be passed, if landlord require premises for occupation of any member of the family--If premises was not occupied by landlord or any member of family within six months, then tenant will have right to apply to rent controller for an order, directing landlord to restore possession of premises building to tenant--Mere statement of landlord regarding personal bonafide need is sufficient for passing an order of ejectment--Rent agreement between parties had expired and same had not been extended, so tenant was liable to vacate suit premises.    [P. 163] A & B

Mr. Nazir Ahmed Bhutta, Advocate for Petitioner.

Mr. Mumtaz Ahmed Bilal, Advocate for Respondent No. 1.

Date of hearing: 13.2.2012.

Judgment

This judgment is directed to dispose of W.P. No. 1008 of 2010.

2.  Brief facts of the case are that the petitioner is tenant under the Respondent No. 1/landlord in House No. 2, First Floor, Street No. 31, Sector G-6/1-3, Islamabad. The respondent/landlord filed ejectment petition against the petitioner, on the grounds of personal bonafide need as well as expiry of lease agreement. As according to the respondent/ landlord, her mother-in-law is a `cancer patient' and needs treatment at CMH Rawalpindi. She being resident of Wah Cantt. brings her mother-in-law frequently to Islamabad and that causes a lot of inconvenience to her as well as her mother-in-law. For that purpose, the respondent/ landlord needs demise premises for the personal bonafide need. The learned Rent Controller vide order dated 11-9-2008 dismissed the ejectment petition. The respondent/landlord filed appeal against the said order, which was accepted by the Addl. District Judge, Islamabad vide judgment dated 15-1-2010 and the petitioner/tenant was directed to hand over vacant possession of the demise premises to the landlord within 60-days of the order. Feeling aggrieved of the said order, the present writ petition was filed.

3.  Learned counsel for the petitioner submitted that the respondent/landlord had earlier filed ejectment petition on the same grounds and was withdrawn and thereafter second petition was filed. It was further submitted that since at the time of earlier withdrawal, permission for filing fresh petition was not sought, therefore, second petition was not competent. It was admitted that the lease agreement had expired, but the same was orally extended.

4.  Learned counsel for the respondent submitted that the learned Rent Controller while dismissing the ejectment petition had erred in holding that probably the respondent/landlord was a cancer patient, whereas, infact not the respondent/landlord, rather her mother-in-law was cancer patient. This fact was appreciated by the learned lower appellate Court. The teamed counsel further submitted that since the premises in dispute is required in good faith for a personal need, therefore, the order of learned lower appellate Court is required to be maintained. Regarding the earlier ejectment petition, the learned counsel submitted that though the earlier petition was withdrawn, however, no order on merits was passed. It was further submitted that provisions of the Civil Procedure Code are not applicable to the rent proceedings, but eve otherwise, principle of resjudicata was not applicable in this case, as no order on merits was passed.

5.  I have heard learned counsel for the parties and have also perused the record.

6.  Admitted position in the present case is that the landlord/respondent had earlier filed an ejectment petition, which was afterwards withdrawn. However, the contention of learned counsel for the petitioner is not correct that the second ejectment petition is not competent on the ground that permission for filing fresh petition was not sought from the Rent Controller. Infact, provisions of the Civil Procedure Code, 1908 are not applicable to the procedure before the Rent Controller. However, under Section 20 of the Islamabad Rent Restriction Ordinance, 2001 there is restriction on the second application, so for the sake of convenience, Section 20 ibid is reproduced herein below:

"20. Decision which have become final not to be re-opened.--The Controller shall summarily reject any application under sub-section (2) or sub-section (4) of Section 17 which raises substantially the same issue as has been, finally decided in any former proceedings under this Ordinance unless new grounds or circumstances have arisen after the final decision in such proceedings."

In the present case, the earlier ejectment petition was not decided by the Rent Controller and there was no final decision. In these circumstances, the second ejectment petition could be filed.

7.  The main ground of the landlord is personal bonafide need and U/S 17 (4-A) of the Islamabad Rent Restriction Ordinance, 2001 the ejectment can be passed, if the landlord require premises for the occupation of any member of his or her family. This section is to be read with sub-section (6) of Section 17 ibid, which provides that if the premises is not occupied by the landlord himself/herself or any member of his/her family, within six months, then the tenant will have a right to apply to the Rent Controller for an order, directing the landlord to restore the possession of the premises/building to the tenant.

8.  Since, in law rights of the tenant have been safe guarded, so mere statement of the landlord regarding personal bonafide need is sufficient for passing an order of ejectment. In present case, the need as expressed by the landlord is genuine, that she needs the house for the occupation of her mother-in-law, who is patient of cancer and needs constant treatment at Rawalpindi/Islamabad.

9.  It is also admitted that rent agreement between the parties has expired and the same has not been extended, so on this score too, the tenant is liable to vacate the suit premises.

10.  In the above said circumstances, finding no force in this writ petition, the same is accordingly dismissed.

(R.A.)  Petition dismissed

Ejectment is not possible without Landlord Tenancy Relationship

PLJ 2015 Lahore 999

Present: Ibad-ur-Rehman Lodhi, J.

Dr. MUHAMMAD AFZAL HUSSAIN--Petitioner

versus

ADDITIONAL DISTRICT JUDGE, LAHORE & 5 others--Respondents

W.P. No. 6861 of 2015, heard on 2.6.2015.

Civil Procedure Code, 1908 (V of 1908)--

----S. 12(2)--Punjab Undesirable Cooperative Societies (Dissolution) Ordinance, 1992--Preamble--Application calling decree were pending adjudication before trial Court no further comments as to validity of decree--Validity--On strength of a decree, effect of which has already been suspended by same Court, which earlier granted same, while hearing application under Section 12(2), CPC, has at least no force to be executed or to be asked to be taken into consideration as a decree in full force.                                                  [P. 1003] A

Punjab Rented Premises Act, 2009--

----S. 5(5)--Jurisdiction of rent tribunal--Ejectment Petition from respective portion in possession of petitioners--Relationship of landlord and tenant--Validity--A person claims himself to be owner or landlord of premises seeking eviction in ejectment petition, must be equipped with a tenancy deed registered with Rent Registrar, and in view of provisions of Section 5(5) of Act, it is exclusive proof to establish relationship of landlord and tenant in between parties to such ejectment petition--Admittedly, ejectment petitioners are not equipped with any such rent deed and such fact has candidly been conceded by counsel appearing for respondents--Ejectment petitions, filed by respondents before Rent Tribunal were not competent and, thus, were not entertainable.          [P. 1004] B & C

Mr. Tariq Masood, Advocate for Petitioner (in W.P. No. 6861 of 2015).

M/s. Shahzada Muhammad Zeeshan Mirza and Muhammad Sajjad Chaudhry, Advocates for Petitioners (in W.P. Nos. 6024, 6027, 6040, 6041, 6042, 6249, 6252, 6281, 6338, 6341, 6342 and 6344 of 2015).

Mr. Waqar Hassan Mir, Advocate for Respondents No. 3 to 6.

Date of hearing: 2.6.2015.

Judgment

Through this common judgment, I intend to dispose of this writ petition as also Writ Petitions No. 6024, 6027, 6040, 6041, 6042, 6049, 6252, 6281, 6338, 6341, 6342 and 6344 of 2015, as all the ejectment petitions from which these petitions arose, were filed with regard to the same property, and common questions of law and facts are involved therein, and the order and judgment dated 23.05.2014 and 17.12.2014, passed by the learned Special Judge (Rent) and the learned Additional District Judge, respectively, have been called-in-question.

2.  The ejectment petitioners preferred their ejectment petitions against the present petitioners seeking their ejectment from respective portions in possession of the petitioners in Property No. 1000/C, Jinnah Market, Chowk Surjan Singh, Pani Wala Talab, Rang Mahal, Lahore, which building consists of a number of shops and flats over a total area of 2 ½ kanals.

3.  The background, which is relevant for the disposal of present Constitutional petitions is that, it is an admitted position that the property was originally owned by Roop Lal Mehta, who continued to be in the ownership of the same till his death i.e. the year 1986. The LRs of deceased Roop Lal Mehta alienated the said property in favour of National Industrial Cooperative Finance Corporation Limited (hereinafter to be referred as “NICFCL”). On promulgation of Punjab Undesirable Cooperative Societies (Dissolution) Ordinance, 1992, on 16.05.1992, the Corporation, noted herein-above, stood dissolved and the matters relating, to such Undesirable Cooperative Societies were further to be dealt with by the Punjab Cooperative Board for Liquidation.

4.  On 12.12.1992, one Ch. Manzoor Elahi, filed a civil suit titled (Ch. Manzoor Elahi vs. Punjab Cooperative Board of Liquidation), seeking a decree against the Liquidation Board, claiming him as a lawful owner of the suit property on the plea that, the LRs of late Roop Lal Mehta through their general attorney, alienated the entire property to the plaintiff for a consideration of Rs. 7,00,000/- (rupees seven lac only), who (plaintiff) got executed the registered sale-deed directly in favour of NICFCL, only as a be-nami transaction.

5.  According to the plaint, the arrangement was settled as a security against a loan of Rs. 7,00,000/- (rupees seven lac only), extended in favour of Ch. Manzoor Elahi, and after making the payment of loan amount with an interest at the rate of 20% to the Finance Corporation, the plaintiff of the suit required the Corporation to hand over the titled documents to the plaintiff, but when the Corporation refused to hand over the original sale-deed and other requisite documents to the plaintiff, it forced Ch. Manzoor Elahi to file a civil suit against the Punjab Cooperative Board for Liquidation.

6.  On the basis of a conceding statement, shown to have been made on behalf of the Board of Liquidation, the suit stood decreed on 8th day of its filing i.e. 20.12.1992, and on the strength of such decree, the plaintiff/decree-holder started claiming himself to be the exclusive owner of the property, in question, and treating the occupants of the property as 'his tenants'.

7.  After the death of Ch. Manzoor Elahi, the above-mentioned decree-holder, his LRs. were stated to have transferred whole property through general attorney Bilal Ahmad Mir, in favour of the eviction petitioners/real sons of the said attorney.

8.  The ejectment petitioners thereafter without giving particular description of the property filed the ejectment petitions.

9.  On the other side, the decree, as was granted on 20.12.1992, was challenged by the writ petitioner in Writ Petition No. 6861 of 2015. Dr. Mohammad Afzal Hussain and the Liquidation Board also called in question the decree dated 20.12.1992, by means of separate applications under Section 12(2), CPC, who in the civil suit, were shown to have conceded the plaint, and the learned trial Court on entertaining such applications under Section 12(2), CPC, passed an order to maintain status-quo on 16.06.2011.

10.  By means of another separate civil suit, the deed of general power-of-attorney shown to have been executed by Ch. Manzoor Elahi (deceased)-plaintiff of the civil suit, which stood decreed on 20.12.1992 in favour of the plaintiff and sale-deeds got executed by the stated attorney in favour of the ejectment petitioners were challenged by Dr. Mohammad Afzal Hussain, noted herein-above, which is still pending.

11.  The learned Rent Tribunal, on 23.05.2014, proceeded to refuse to grant leave to contest, to the present petitioners and held them as defaulters in payment of rent and ordered their eviction.

12.  In appeals, findings of the learned Rent Tribunal were maintained vide judgment dated 17.12.2014.

13.  After hearing the learned counsel for the parties and going through the record, what emerges is that presently, the ejectment petitioners enjoy no perfect title in their favour qua the property, in question.

14.  Nobody is denying the fact that, at the time of promulgation of Punjab Undesirable Co-operative Societies (Dissolution) Act, 1992 the property vested in NICFCL. Section 16 of the Ordinance, which subsequently converted into Act of 1993, reads as under:--

“16. Abatement of all suits, proceedings, etc.--(1) All suits or proceedings pending before any Court or authority against an Undesirable Co-operative Society in respect of its assets and liabilities shall stand abated on the appointment of the Liquidator:

Provided that fresh proceedings against such a society may be initiated before the Co-operatives Judge within 60 days of such abatement.

(2) All decrees, judgments and orders passed by any Court, except the Supreme Court, against an Undesirable Co-operative Society or against properties and assets thereof on or after the first day of July, 1990 shall be unexceptionable and of no legal effect, unless such judgment, decree or order is confirmed by the Co-operatives Judge after hearing the concerned parties.

(3) Any person who relies on such decrees judgments or orders, may within 60 days of the appointment of the Liquidator, apply to the Co-operatives Judge for its confirmation.”

In the light of above promulgation, the civil suit instituted on 12.12.1992 before the Civil Court was, thus, a nullity in the eye of law, as all the issues relating to the property, assets and liabilities of Undesirable Cooperative Society, which even were pending before any Court or authority stood abated on the appointment of the Liquidator and further that all fresh proceedings against such Society were only to be instituted before the Co-operative Judge within 60 days of such abatement. Further that all the decrees etc. passed by any Court, except the Hon'ble Supreme Court of Pakistan against the properties and assets of any Undesirable Cooperative Society or after the first day of July, 1990, were to become unexecutable and of no legal effect, unless such judgment and decree etc. is confirmed by the Cooperatives Judge, after hearing the concerned parties and any person, who relies on such decrees, judgments etc., was competent to approach the Cooperative Judge for its confirmation within 60 days of the appointment of the Liquidator.

15.  For the reason, that, still applications under Section 12(2), CPC calling in question the decree dated 20.12.1992, are pending adjudication before the learned trial Court, no further comments as to the validity of the decree dated 20.12.1992 are being made, lest it may prejudice the case of anybody before the learned trial Court hearing such applications under Section 12(2), CPC. However, for the time being, suffice it to say that, on the strength of a decree, effect of which has already been suspended by the same Court, which earlier granted the same, while hearing application under Section 12(2), CPC, has at least no force to be executed or to be asked to be taken into consideration as a decree in full force. The view expressed by the Hon'ble Supreme Court of Pakistan in case of Rehmatullah vs. Ali Muhammad and another (1983 SCMR 1064), relevant portion thereof is reproduced as under:

“Landlord failing to establish relationship of “landlord and tenant” beyond reasonable doubt cannot be allowed benefit of affirmative finding on issue. Rent Controller need not go into disputed “question of title”. Leading of evidence by parties before Rent Controller on issue of “title” not desired. Proper course for Rent Controller, in circumstances would be to decide issue against landlord and advise landlord to get his “title” established from a Court of general jurisdiction before seeking ejectment. Such findings to be specifically recorded by Rent Controller in his order. Decision by Rent Controller and Appellate Court, High Court or Supreme Court not to operate as bar to suit to be filed by landlord in order to establish his title. Landlord can re-agitate matter before Rent Controller again and decision of Rent Controller taken earlier would not constitute res judicata or preclude him from re-agitating matter before him once again”.

is fully applicable in full force on the facts and circumstances of the present cases, and unless the ejectment petitioners establish their title qua the suit property beyond any doubt, they would not be competent to ask for eviction of the persons occupying the premises in their own independent right.

16.  The Courts below have conveniently closed their eyes from such aspect of the matter and have refused to grant leave to the present petitioners on erroneous considerations. Even to invoke the jurisdiction of a Rent Tribunal under the Punjab Rented Premises Act, 2009, a person claims himself to be the owner or landlord of the premises seeking eviction of the respondent in the ejectment petition, must be equipped with a tenancy deed registered with the Rent Registrar, and in view of the provisions of Section 5(5) of the Act, it is the exclusive proof to establish the relationship of landlord and tenant in between the parties to such ejectment petition.

17.  Admittedly, the ejectment petitioners are not equipped with any such rent deed and this fact has candidly been conceded by the learned counsel appearing for Respondents No. 3 to 6. The ejectment petitions, filed by the respondents before the Rent Tribunal were not competent and, thus, were not entertainable. The Rent Tribunal was having no jurisdiction to entertain such incompetent petitions. The proceedings conducted before the Rent Tribunal and also the appellate Court were having no legal sanction.

18.  For what has been discussed above, present petitions are allowed by declaring that the ejectment petitions filed before the Rent Tribunal by the respondents were not competent in the eye of law and as a consequence thereof, order and judgment dated 23.05.2014 and 17.12.2014, passed by the Courts below are set-aside.

(R.A.)  Petitions allowed