Lt-Col.(R) Shaukat Qamar Vs Federation of Pakistan Etc.

Stereo. HCJDA-38 Judgment Sheet

IN THE LAHORE HIGH COURT, LAHORE.

JUDICIAL DEPARTMENT

F.A.O.No.111325/2017

Shauqat Qamar vs Federation of Pakistan etc.

JUDGMENT

Date of hearing 08.02.2018 Appellant By Mr. Nabeel Javed Kahloon, Advocate.

Mr. Asif Imran Awan, Advocate.

Respondents By Ms. Sadia Malik, Assistant Attorney General.

JAWAD HASSAN, J. This judgment shall dispose of FAO

No.111325/2017, FAO No.111300/2017, FAO No.111290/2017, FAO No.111703/2017, FAO No.111605/2017, FAO No.111690/2017, FAO No.111634/2017, FAO No.111683/2017, FAO No.111342/2017, FAO No.112874/2017 and FAO No.112898/2017, as common question of laws and facts have been raised in all these appeals. Further these appeals have emanated out of the same order dated 20.10.2017 rendered by the Additional Rent Controller, Lahore (the “Impugned Order”).

2.Succinctly, the facts germane for the disposal of these appeals are that all the Appellants were the tenants of the Respondent No. 3 for the running shops at Askari-I, Commercial Market, Sarfraz Rafiqui Road, Lahore Cantt. These shops were rented through rent deed entered into in the year 2012, which was for three (3) years expiring in 2015. When the period of tenancy expired, it was neither extended nor any other agreement was made, therefore, the Appellants were not paying rent. The Respondents filed ejectment petition under Section 17 of the

Cantonment Rent Restriction Act, 1963 (“the Act”) before the Rent Controller, Lahore due to the expiry of the tenancy, non-payment of rent and using the property for other use. The Appellants contested the Ejectment Petition by filing their written replies and after recording the evidence, the learned Additional Rent Controller, Lahore decided the petition on 20.10.2017 in favour of the Appellants through the Impugned Order. Feeling aggrieved, the Appellants, instead of filing appeal within time under the applicable law, filed writ petition before this Court which was dismissed being withdrawn to file instant appeals. Thereafter, the Appellants filed these appeals after delay of three (3) days with condonation of delay applications.

3.Learned counsel for the Appellants has argued that the Respondent No.2 while passing the Impugned Order has not adverted to the written reply filed by the Appellants, wherein the question of jurisdiction was raised against the jurisdiction of Respondent No.2; that when the issue was already in adjudication before the competent Civil Court, the same cannot be adjudicated by the Respondent No.2;

that the Respondent No.2 while passing the Impugned Order did not take into consideration the fact that there was an offer from the side of Respondents No.3 and 4 to the Appellants for the execution of new rent agreement for the rent year of 2016 to 2019 through the letter dated 28.07.2016, which was accepted by the Appellants, but the increase in rent amount by the Respondent No.4 was not suitable for the Appellants, hence the same was challenged by the Appellants before the competent court and it was suspended by the trial court of the Civil Judge, Lahore for decision afresh on rent amount; that while passing the Impugned Order, the Respondent No.2 did not advert to this aspect of the case that the Appellants were not defaulter, hence the order passed by the Respondent No.2 is without any lawful authority; that while passing the Impugned Order, the Respondent No.2 did not take into consideration that the Appellants did not violate any clause of the rent agreement. In support of his contentions, he has placed reliance upon Zulfiqar Ahmed Khan vs. Station Commander, Station Headquarters, Karachi and

another (2010 CLC 354), Shahid Mehboob vs. Muhammad Ismail (2008 CLC 87). Lastly, he prayed that these appeals be accepted and Impugned Order be set aside.

4.On the other hand counsel for the Respondents has vehemently supported the Impugned Order and argued that these appeals are liable to be set aside being barred by time. In this regard, he has stated that application filed for condonation of delay does not disclose any valid reason for the condonation of delay and this Court in various judgments has pronounced that each day of delay is to be explained. In support of his contentions he has placed reliance upon Muhammad Afzal and 8 others vs. Fida Hussain and others (2017 CLC Note 51), Barkat Hussain vs.

Chief Administrator Auqaf, Azad Jammu And Kashmir, Muzaffarabad and 5 others (2017 MLD 1885), Nadeem Raza Abbasi vs. Sardar Abu Bakar and 2 others (2016 CLC 1051), Nasir Mehmood vs. Khawar Hussain and 5 others (2014 CLC 832), Messrs Uzma Construction Co. vs. Navid H. Malik (2015 SCMR 642) and Muhammad Taufeeq vs. Muhammad Nawaz and 2 others

(2015 CLC 1187).

5.The learned Assistant Attorney General appeared on behalf of the Federal Government and also supported the Impugned Order.

6.Arguments heard and record perused.

7.It is reflected from perusal of the record that the Officer in Command informed on 28.7.2016 that rent agreement has been expired and in view of price hikes, the authorities have decided to increase the monthly rent of commercial shops. It was requested to prepare fresh tenancy agreements with increase of rent at the rate of Rs.120 per square feet and pay the outstanding rent in total latest by

8.Total of seventeen (17) tenants filed a Suit for Declaration with Permanent

Injunction before the Senior Civil Judge, Lahore, titled Major (R) Salman Aziz Qazi and others v. Federation of Pakistan and others, to declare the letter dated 28.7.2016 for increase in yearly rent as illegal and to declare increase of 10% only, annually in rent against the suit properties. The Civil Judge, Lahore, on 6.8.2016, restrained the respondents to dispossess the plaintiffs from the suit premises and suspended the operation of the impugned letter dated 28.7.2016 till the next date of hearing. However, on 5.4.2017, the Civil Court, Lahore dismissed the interim application of the plaintiffs and vacated the stay order earlier granted for the reason that rent deed has expired in the year 2016 and there is no fresh rent deed existed between the parties.

9.On the other hand, the Officer in Command filed an Ejectment Petition under Section 17 of the Cantonment Rent Restriction Act, 1963 on 18.1.2017 before the Rent Controller, Lahore for eviction of the tenants from rented property. The Additional Rent Controller, Lahore after recording evidence of both parties, passed the Impugned Order, accepting the ejectment petition on the ground of default and expiry of lease agreement and directed the tenant to vacate the premises and hand over its peaceful possession to the petitioner within thirty (30) days.

10.The Additional Rent Controller, Lahore, in the Impugned Order, reached at the conclusion that the tenant himself admitted in his written reply and evidence that he had not paid the rent to petitioner since September 2016 till filing of the instant Ejectment Petition. Neither the tenant filed any application before the Rent Controller for depositing the rent, nor he approached to AG’s Branch Rawalpindi in this regard. Hence he committed default. It was also noted in the Impugned Order that the tenant himself admitted during evidence that rent agreement has expired in June 2016 and no fresh lease agreement was executed between the parties. Further, the rent agreement requires in case of renewal of lease that the tenant has to submit a written application in the office of the DG Housing at least three (3) months prior to the expiry of the existing term, whereas, in the present petition the tenants have

not produced any such document/application. Moreover, the AGs letter dated 18.8.2917 was written on 18.8.2017 but the tenants presented the same after one (1) month when his oral as well as documentary evidence was closed, which shows the mala-fide on the part of tenant.

11.The Appellants, therefore, filed instant appeal along with an application for the condonation of delay under Section 5 of the Limitation Act, 1908 stating that the Appellant filed a Writ Petition before the honourable Lahore High Court on 19.11.2017, and withdrew the same being not maintainable.

12.In view of the above, following moot questions emerge for determination of this honorable Court:

(a)Whether the Rent Controller, Lahore has rightly allowed the Ejectment Petition of the landlord?

(b)Whether the present Appeal is maintainable, having been filed after lapse of the period allowed under the applicable law?

The Cantonment Rent Restriction Act, 1963:

13.Before rendering judgment upon the above mentioned two (2) issues, it is essential to look at the structure and provisions of the Act. It is to be noted that the Act is the applicable law, which was enacted to control the rents of certain class of buildings within the limits of the cantonment areas, for the eviction of tenants therefrom and for matters connected therewith. The provisions of the Act and any rule or order made thereunder have effect notwithstanding anything contained in any other law, or in any instrument or document (Section 5). Section 6-A of the Act, requires every application under the Act to be filed with the Controller, who shall either hear it himself or assign it to an Additional Controller for hearing and disposal.

14.The Appellants and the Respondents clearly fell under the definition of the landlord and tenant on account of their previous agreements, which has been

expired. Section 2(g) of the Act defines the Landlord as:

“(g) “Landlord” means any person for the time being entitled to receive rent in respect of any building whether on his own account or on behalf or for the benefit of any other person, or as a trustee, guardian or receiver and includes a tenant who, being authorized under the terms of his lease so to do, sublets the building and every other person for the time being deriving title from the landlord;”

Section 2(j) defines the Tenant as:

“(j) “tenant” means any person who undertakes or is bound to pay rent as consideration for the possession or occupation of a building by him or by any other person on his behalf, and includes:-

(i)any person who continues to be in possession or occupation of the building after the termination of his tenancy; and

(ii)in the event of the death of the tenant, his heirs and successors and after the termination of the tenancy, his heirs and successors who continue to be in possession or occupation of the building.”

15.At the outset, Section 7 of the Act has provided a mechanism for determination of the fair rent, and requires a tenant or landlord of a building to file an application before the Rent Controller to fix fair rent for such building after holding enquiry (Section 7(1)). However, in the present case, no such application was filed by the tenant. The fair rent is fixed after taking into consideration the rent of the same building or similar accommodation at the time of, and during the period of twelve (12) months prior to the date of the application, the rise in the cost of construction, repair and maintenance charges as well as taxes after the commencement of the tenancy, and the rental value of the building according to the latest assessment list of the Cantonment Board (Section 7(2)):

“7. Determination of fair rent: (1) ...

(2)The fair rent shall be fixed after taking into consideration the following factors, namely:-

(a)the rent of the same building or similar accommodation in similar circumstances prevailing in the locality at the time of, and during the period of twelve months prior to the date of, the making of the application;

(b)the rise, if any, in the cost of construction and of the repair and maintenance charges as well as changes in the existing taxes after the commencement of the tenancy; and

(c)the rental value of the building as entered in the latest assessment list of the Cantonment Board as proposed under Section 72 of the Cantonments Act, 1924 (II of 1924).”

Section 7(5) of the Act provides that:

“7. Determination of fair rent: (1) ...

(5)When the fair rent of a building has been fixed under this section or where the rent of any building has been determined by an agreement between the landlord and the tenant, no further increase in such fair rent shall during the continuance of tenancy be permissible within a period of three years from the date fixed by the Controller under sub-section (3) or from the date of the agreement, as the case may be, except in case where some addition, improvement or alteration has been carried out at the landlord’s expense and at the request of the tenant.” (emphasis added) It follows from above sub-Section that where the rent of any building is determined by an agreement between the landlord and the tenant, no further increase in such fair rent shall during the continuance of tenancy be permissible within a period of three (3) years from the date of the agreement, except in case of some addition, improvement or alteration in the building. Since the period of tenancy has been admittedly expired, this Section 7(5) of the Act does apply in this case.

FAO No.111325/2017 8

16.Section 8(2) of the Act gives the Rent Controller jurisdiction to decide every dispute between the landlord and tenant relating to increase of rent:

“8. Increase of fair rent in certain cases

(2)Every dispute between a landlord and his tenant relating to the increase of rent under sub-section (1) shall be decided by the Controller: ....”

However, neither the landlord, nor the tenant, has filed any proceedings before the Rent Controller, Lahore, or brought on record any document or proceeding in this regard, requiring the Rent Controller to decide the dispute relating to the increase of rent between the parties. The Appellants have, however, filed a Civil Suit before the Civil Court, Lahore which does not have jurisdiction to deal with the matter of increase of rent, in which even the interim stay granted to the plaintiffs was vacated on 5.4.2017.

17.Section 17 of the Act provides provisions relating to the eviction of the tenant:

“17. (1) After the commencement of this Act, no tenant, whether before or after the termination of his tenancy, shall be evicted from the building in his possession or occupation in execution of a decree passed after such commencement, except in accordance with the provisions of this section.

(2)A landlord who seeks to evict his tenant shall apply to the Controller for an order in that behalf, and the Controller may after giving the tenant a reasonable opportunity of showing cause against the application, make an order directing the tenant to put the landlord in possession, if he is satisfied that-

(i)the tenant has not paid or tendered the rent to the landlord within fifteen days of the expiry of the time fixed in the agreement of tenancy for payment of rent, or in the absence of such agreement, within sixty days following the period for which the rent is due; or

(ii)the tenant has, without the written consent of the landlord,-

(a)transferred his right under lease or sublet the building or any portion thereof; or

(b)used the building for a purpose other than that for which it was leased; or

(iii)the tenant has committed such acts as are likely to materially impair the value, look or utility of the building; or

(iv)the acts and conduct of the tenant have been a nuisance to the occupiers of buildings in the neighbourhood; or

(v)where the building is situated in a place other than a hill station, the tenant has ceased to occupy the building for a continuous period of four months without reasonable cause; or

(vi)the landlord intends to demolish the building for constructing a new building on the same site and has already obtained the necessary sanction for such construction from the Cantonment Board:

Provided that the Controller may give the tenant a reasonable time for putting the landlord in possession of the building and may extend such time so as not to exceed three months in the aggregate.

Explanation.- For the purpose of clause (i) the rent remitted by money order to the landlord or in case the landlord refuses to accept the rent deposited in the office of the Controller having jurisdiction in the area where the building is situated, shall be deemed to have been duly tendered.

(3)If the Controller is not satisfied as aforesaid he may make an order rejecting the application.

(4)A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession,-

(a)...

(b)in the case of a commercial building, if-

(i)he requires it in good faith for his own use; and

(ii)he is not occupying in the Cantonment area concerned or in any local area in the vicinity thereof in which such building is situated for the purposes of his business any other such building suitable for his needs at the time; and

(iii)he has not vacated such a building in the said area or vicinity without sufficient cause after the commencement of this Act:

Provided that where the tenancy is for a specified period agreed upon between the landlord and the tenant, the landlord shall not be entitled to apply under this sub-section before the expiry of such period:

(5)The Controller shall, if he is satisfied that the claim of the landlord under sub-section (4) is bona fide make an order directing the tenant to put the landlord in possession of the building on such date as may be specified by the Controller and if the Controller is not satisfied, he shall make an order rejecting the application:

Provided that the Controller may give the tenant a reasonable time for putting the landlord in possession of the building and may extend such time so as not to exceed three months in aggregate.

(8)On the first hearing of proceedings under this section or as soon thereafter as may be but before the issues are framed, the Controller shall direct the tenant to deposit in his office before a specified date all the rent due from him, and also to deposit regularly till the final decision of the case, before the 5th day of each month, the monthly rent which subsequently becomes due, and if there be any dispute as to the amount of rent due, the Controller shall determine such amount approximately.

(10)Where the Controller is satisfied that any application made by a landlord for the eviction of a tenant is frivolous or vexatious, the Controller may direct that compensation not exceeding one hundred rupees be paid by such landlord to the tenant. ...”

At the outset, it follows from the above Section 17 that a tenant may only be evicted from any building in his possession or occupation in accordance with provisions of this section, and by an order of the Rent Controller on application by a landlord if

(i)the tenant has not paid the rent to the landlord within fifteen (15) days of the expiry of the time fixed in the tenancy agreement, (ii) the tenant has transferred his right under lease or sublet the building or any portion thereof without the written consent of the landlord, (iii) the tenant has used the building for a purpose other than that for which it was leased without the written consent of the landlord, (iv) the tenant has committed such acts as are likely to materially impair the value, look or utility of the building, (v) the acts and conduct of the tenant have been a nuisance to the occupiers of neighbourhood buildings, (vi) the tenant has ceased to occupy the building for a continuous period of four (4) months without reasonable cause, (vii) the landlord intends to demolish the building for constructing a new building and has obtained the necessary sanction for such construction from the Cantonment Board. The Rent Controller has power to dismiss or accept the application of the landlord after giving the tenant a reasonable opportunity of showing cause against the application and awarding a reasonable time for putting the landlord in possession of the building, not exceeding three (3) months. For this purpose, the rent remitted by money order to the landlord, or in case of refusal of the landlord to accept the rent, deposited in the office of the Controller having jurisdiction, is deemed to have been duly tendered.

In addition, the landlord may also apply, after expiry of the tenancy agreement, to the Controller for directing the tenant to put the landlord in possession of a commercial building, if (a) the landlord requires it in good faith for his own use, (b) he is not occupying, in the Cantonment area concerned or in any local area in the vicinity, any other such building suitable for his needs at the time, and (c) he has not vacated such a building in the said area or vicinity without sufficient cause. The Rent Controller has power to dismiss or accept such application of the landlord after awarding a reasonable time for putting the landlord in possession of the building, not exceeding three (3) months.

Further, the Rent Controller has also been given powers to pass an interim order and to direct the tenant to deposit in his office all the rent due from him, and also to deposit the same regularly till the final decision of the case, before 5 th of each month (Section 17(8)). However, if the application of the landlord for the eviction is frivolous or vexatious to the satisfaction of the Rent Controller, he may award a penalty to the landlord (Section 17(10)).

Issue (a): Whether the Rent Controller, Lahore has rightly allowed the Ejectment Petition of the landlord?

18.The honourable Supreme Court has held in Government of Sindh and another vs. Muhammad Shafi and others (PLD 2015 SC 380) that “from the language of the lease document, when it is clear that the tenancy is for a fixed period of time, even if it (the deed) contains a clause for renewal, but such renewal is left at the option of the lessor, the lease cannot be held to be permanent in nature.” Further, in Nadeem Raza Abbasi vs. Sardar Abu Bakar and 2 others (2016 CLC 1051 (Islamabad)), it was held that relationship of landlord and tenant would be governed by terms and conditions set in the lease agreement. Such relationship would come to an end with non-existence of contractual obligations. Occupation of premises by the tenant would not only depend upon payment of rent but also upon the period mentioned in lease agreement or extension agreement. Tenancy would not remain valid upon lapse of period mentioned in lease agreement. Nothing was on record that lease agreement had been extended between the parties in the present case. Mere payment of rent would not reflect extension of lease agreement. Eviction petition was maintainable on sole ground of expiry of tenancy. Moreover, in Muhammad Taufeeq vs. Muhammad Nawaz and 2 others, (2015 CLC 1187 (Lahore)), it was held that in absence of written agreement as to period, the tenancy would be deemed to be on month to month basis terminable on one month's notice by either party. After filing of execution petition of order enhancing rent, it was deemed that notice to terminate tenancy was served. Further, tenant did not deposit

rent at enhanced rate and as such was defaulter, and tenancy also stood terminated with expiry of its period, which was on month to month basis. Therefore, the High Court declined to interfere in the order passed by Rent Tribunal.

19.Having described and gone through the powers of the Rent Controller appointed under the Act and the applicable law, for eviction of tenant on the application of the landlord, it remains clear that the tenants in the instant Appeals have violated the provisions of law by not paying the rent to the Respondents since September 2016 till filing of the instant Ejectment Petition, and not filing any application before the Rent Controller for depositing the rent, or by not brining the dispute of increase of rent before the Rent Controller for deciding the same. Even otherwise, the rent agreement has expired in June 2016 and no such fresh agreement was executed between the parties. Therefore, the tenants are liable to be evicted from their respective properties under the expired tenancy agreement, and the Impugned Order has been passed in accordance with law.

Issue (b): Whether the present Appeal is maintainable, having been filed after lapse of the period allowed under the applicable law?

20.Section 24 of the Act requires any aggrieved party by an order or interim order of the Controller, to file an appeal within thirty (30) days of such order before the High Court, which shall make an appropriate final order after perusing the record of the case and giving the parties an opportunity of being heard. The present Appeals admittedly filed under this Section, are therefore, maintainable if these have been made within thirty (30) days of the Impugned Orders. As noted above, these Appeals have been filed after expiry of three (3) days allowed by Section 24 of the Act with an application for condonation of delay under Section 5 of the Limitation Act, 1908.

21.In Barkat Hussain vs. Chief Administrator Auqaf and 5 others, (2017 MLD 1885 SC (AJ&K)), it was held that extension in limitation could be given only to

the party who had been prosecuting his case with due diligence. Since the petitioners had filed writ petition when an alternate efficacious remedy was available to them, time consumed in prosecution of writ petition till the withdrawal of same could not be said to have been consumed bonafidely. Further, even wrong advice of counsel did not constitute sufficient cause for condonation of delay. It was also held in the case of Muhammad Afzal and others vs. Fida Hussain and others (2017 CLC Note 51), that applicants had not acted in good faith and due diligence as required by the law because instead of availing further remedy as provided in the law had filed an application under Section 12(2) of CPC after considerable period on baseless grounds.

22.Further, it has been established in ABM Engineering Karachi vs. Zeenat Zubair Siddiqui and others (1987 CLC 2318) that the Act [Cantonments Rent Restriction Act, 1963], being a special law, provision of Section 29 excludes provisions of Section 5 of the Limitation Act, 1908, and accordingly, the delay in filing appeal was not condonable. (also see, Ali Muhammad and another vs. Fazal Hussain and others (1983 SCMR 1239))

23.In view of the above, since the time for filing appeal is provided in the special law, being the Act itself, and is not prescribed by Limitation Act, 1908, provision of Section 5 of the Limitation Act, 1908 has no applicability in the matters governed by the Act. Even otherwise, the appellants had filed writ petition when an alternate efficacious remedy was available to them, time consumed in prosecution of writ petition till the withdrawal of same could not be said to have been consumed bonafidely. Further, wrong advice of counsel cannot constitute sufficient cause for condonation of delay, because the appellants had not acted in good faith and due diligence as required by the law. Therefore, the period in excess of thirty (30) days cannot be condoned.

24.Resultant for what has been discussed above, these appeals are hereby dismissed with no order as to costs.

(JAWAD HASSAN)

JUDGE

ZAHOOR