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H C J D A 38

Judgment Sheet

IN THE LAHORE HIGH COURT, LAHORE.

JUDICIAL DEPARTMENT

W.P.No.221102 of 2018

Muhammad Liaqat Ali

Vs.
Majid Ali, etc.

JUDGMENT

Date of hearing 20.12.2021

Petitioner By: Mian Abdul Aziz, Advocate

Respondents By: Nemo.

Faisal Zaman Khan, J:- Through this petition orders dated

23.05.2018 passed by respondent No.2 have been assailed, whereby
ejectment of respondent No.1 has been ordered, and with regard to
recovery of rent alongwith arrears of utility bills, issues have been
framed.

2. Succinctly, the facts of the case are that petitioner filed an

ejectment petition against respondent No.1 on the grounds of default in
payment of rent and utility bills, misuse of property and violation of
the terms and conditions of the tenancy agreement. It shall be
important to mention here that during the course of arguments, the
learned counsel for the landlord also verbally raised the ground of
expiry of tenancy. An application for leave to contest (ALTC) was
filed by the latter, which was rejected through one of the impugned
order and the ejectment of respondent No.1 from the premises in
dispute (details of which have been given in the ejectment petition)
was ordered subject to return of security amounting to Rs.300,000/-
(by the landlord/petitioner), whereas, through a separate order of the
same date, issues with regard to recovery of arrears of rent and utility
bills have been framed, hence, this petition.
W.P.No.221102 of 2018 2

3. Learned counsel for the petitioner submits that when ALTC filed
by respondent No.1 was rejected, there was no occasion for respondent
No.2 to have framed issues especially so when the eviction of the said
respondent was ordered, hence, the said respondent alongwith order of
ejectment should have straightaway passed an order regarding recovery
of arrears of rent and outstanding bills. Further adds that ejectment of
respondent No.1 has been ordered subject to return of security amount,
however, the said condition is illegal, thus, the same may be set aside.

4. Despite service and representation none has entered appearance

on behalf of respondent No.1, therefore, he is proceeded against ex
parte.

5. Arguments heard. Record perused.

6. Through the present petition a challenge has been thrown to two

separate orders of respondent No.2 passed on the same date
(23.05.2018). On one hand, by virtue of a detailed order ALTC filed by
respondent No.1 was rejected and the eviction of the said respondent
was ordered and through the other order, for determination of arrears
of rent and utility bills following issues were framed:-

“1. Whether petitioner is entitled to recover rent @

Rs.65,000/- since August, 2017 alongwith arrears of
utility bills? OPP
2. Relief.”

7. At present, in the Province of Punjab, ejectment petitions are

filed under the Punjab Rented Premises Act 2009 (Act). The Preamble
of the Act would show that the law has been promulgated in order to
regulate the relationship of landlord and tenant in respect of rented
premises. Under section 16 of the Act, a Rent Tribunal is established to
entertain the application in respect of rented premises filed under
section 19 of the Act. The grounds upon which ejectment of a tenant is
sought are given in section 15 of the Act. Upon service of notice, a
respondent under section 21 of the Act has to file an application
W.P.No.221102 of 2018 3

seeking leave to contest (ALTC), that too, within stipulated time as he

can defend the application only if the leave to contest is granted,
whereupon, the ALTC will be adjudicated and in case it is refused, the
Rent Tribunal is bound to pass a final order. It shall not be out of place
to mention here that if the ALTC is accepted and the leave is granted,
under Section 23 of the Act, the same shall be treated as written reply
of the respondent.

8. It shall be important to mention here that while granting leave to

contest, under Section 24 of the Act the Rent Tribunal will direct the
tenant to pay the rent due from him and also to deposit the future
monthly rent as well as the outstanding utility bills. In case there is any
dispute regarding the amount or rate of rent, the Tribunal has to
tentatively determine the same. Thereafter, under Section 25 of the Act
evidence of the parties will be recorded and under sub Section 5 of
Section 25 of the Act, after hearing arguments a final order will be
passed which will be appealable under Section 28 of the Act.

9. A final order has been defined in Section 2(b) of the Act, which
for convenience is produced hereunder:-

“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;”

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.

11. In the above back drop, it has to be analyzed that when in an

ejectment petition ALTC filed by a tenant is rejected, what should be
the course of action adopted by a Rent Tribunal?
W.P.No.221102 of 2018 4

12. Under the Act, when an ejectment petition is filed and an ALTC
is adjudicated upon and the Rent Tribunal rejects the same, under
Section 22(6) of the Act, it is bound to pass a final order. For
reference the said provision is reproduced as under:

“22. Leave to contest. (1)…………………………………………..

(2) …………………………………………………………………….
(3) …………………………………………………………………….
(4) …………………………………………………………………….
(5) …………………………………………………………………….
(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)

13. While interpreting Section 22(6) of the Act and the words “shall
pass a final order”, the Honourable Supreme Court of Pakistan in
judgment reported as Haji Muhammad Latif v. Muhammad Sharif and
others (2021 SCMR 1430) has held that when the ALTC is rejected,
the Rent Tribunal is bound to pass a final order, however, that does not
absolve the said Tribunal of its duty to satisfy itself about the veracity
of the case of the landlord and after applying its judicial mind it will
pass the final order (and not to allow the ejectment petition at the
outset on the ground that since the ALTC is rejected, hence, under
section 22(6) of the Act it is obligated to pass an eviction order). For
reference operative part is reproduced:-

“6. There is no cavil to the proposition that subsection (2) of

section 28 of the Act, 2009 bars filing of appeal against an
interim order and there are also no two views that in cases
where a statute specifically bars the remedy of appeal against an
interim order then such statutory command ordinarily should
not be circumvented by allowing parties to invoke writ
jurisdiction. 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
W.P.No.221102 of 2018 5

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.”
(Emphasis supplied)

14. Placing the afore-noted in juxtaposition with the facts of the

present case, it is clear and obvious that when the ALTC was rejected
by respondent No.2, it was bound to pass a final order, which in the
case in hand it did and ordered ejectment of respondent No.1 subject to
return of security amount (after application of judicial mind and giving
reasons). It shall be important to mention here that the ejectment was
ordered on the ground of expiry of period of tenancy (see the last page
of order of ejectment) and not on the ground of default. Since the said
order for all intents and purposes was a final order within the
contemplation of Sections 2(b) and 22(6) of the Act, therefore, the
same was appealable under Section 28 of the Act and if the petitioner
is aggrieved of the imposition of condition of return of security or non-
determination of final rent or the arrears of outstanding bills, he could
have filed an appeal, which he opted not to do, thus, in the wake of
availability of an alternate remedy and keeping in view the judgments
passed by the Honourable Supreme Court of Pakistan reported as
Province of Punjab through Secretary Communication and Works
Department, Lahore through Chief Engineer (North/Central) Punjab
Highway Department, Lahore v. Yasir Majeed Sheikh and others (2021
SCMR 624), Federation of Pakistan through Secretary Establishment
Division, Islamabad v. Shafqat-ur-Rehman Ranjha and others (2021
SCMR 153), Indus Tranding and Contracting Company v. Collector of
W.P.No.221102 of 2018 6

Customs (Preventive) Karachi and others (2016 SCMR 842), Dr. Sher
Afgan Khan Niazi v. Ali S. Habib and others (2011 SCMR 1813) and
Muhammad Abbasi v. S.H.O. Bhara Kahu and 7 others (PLD 2010 SC
969)., to that extent this writ petition is not maintainable.

15. As regards the interim order passed by respondent No.2,

whereby issues have been framed, with regard to determination of
arrears of rent alongwith utility bills, it will be apposite to go through
Section 24 of the Act, which for convenience is reproduced as under:-

“24. Payment 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 sub-section
(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.”

(Emphasis supplied)

16. A bare reading of the above provision would show that

determination of rent/order of payment of rent or outstanding utility
bills could only be made by the Rent Tribunal while granting the
ALTC and not otherwise and the same will be subject to final order as
contemplated in Section 24(1) of the Act.

17. While interpreting the above provision, an exception has been

created by the Honourable Supreme Court of Pakistan in judgment
reported as Mian Umar Ikram ul Haque v. Dr. Shahida Hasnain and
another (2016 SCMR 2186) wherein it has been held that when the
W.P.No.221102 of 2018 7

defense set up in the ALTC is found contumacious, while rejecting the

ALTC and passing a final order rent can be determined. For reference
the operative part is reproduced as under:-

“Instead, when the Rent Tribunal, without framing an issue,

concludes that the denial is contumacious in nature, it may
refuse to grant leave and allow the eviction application. Whilst
so doing, the Tribunal can simultaneously pass an order under
section 24 of the Act finally determining the rent due from the
tenant and direct that the same be deposited/paid.”

18. It shall be important to mention here that previously in the

Province of Punjab ejectment petitions were filed under the West
Pakistan Urban Rent Restriction Ordinance, 1959 (Ordinance),
wherein, under Section 13(6) & (8) of the Ordinance the Rent
Controller was bound to “finally determine” the rent “at the
conclusion of proceedings or an earlier date as specified by the
Controller”, which will be subject to adjustment from the rent
deposited by the tenant, however, no such provision exist in the Act.

19. It shall not be out of place to mention here that there is no

embargo under the Act upon the rights of a landlord to move an
“application” as mentioned in section 19 of the Act for seeking arrears
of rent and outstanding bills, (if no adjudication is made by the Rent
Tribunal while deciding the ejectment petition) upon which under
section 2(b) of the Act a Tribunal is bound to pass a final order.

20. In the afore referred circumstances and keeping in view the ratio
of Haji Muhammad Latif mentioned supra, although respondent No.2
under section 26(3) of the Act could have passed any interim order
before passing a final order, however, in the case in hand, since
respondent No.2 when refused the ALTC filed by respondent No.1 and
passed a final order of ejectment on the ground of expiry of tenancy
(and not as default), it had no jurisdiction, especially through an
interim order to frame issues or to further adjudicate upon the matter,
especially so when there was no rebuttal to the contents of the
ejectment petition.
 W.P.No.221102 of 2018 8

21. For what has been discussed above, this petition is partially
allowed as a sequel to which the interim order passed by respondent
No.2 qua framing of issues being without jurisdiction is set-aside.

(FAISAL ZAMAN KHAN)

JUDGE
Shafaqat Ali*

Approved for Reporting

JUDGE.