Ghulam Shabbir VS Learned Addl. District Judge etc.

ORDER SHEET

IN THE ISLAMABAD HIGH COURT, ISLAMABAD

JUDICIAL DEPARTMENT

W.P.No.2757 of 2022 Ghulam Shabir Versus Additional District Judge (MCAC)-West Islamabad and others S. No. of order Date of order/ Order with signature of Judge and that of parties or counsel / proceedings Proceedings where necessary. 26.07.2022 Mr. Nauman Munir Paracha, Advocate along with petitioner in-person.

Through the instant writ petition, the petitioner, Ghulam Shabir, impugns the order dated 18.07.2022 passed by the Court of the learned Additional District Judge, Islamabad whereby his appeal against the order dated 29.06.2022 passed by the Court of the learned Rent Controller, Islamabad, was dismissed on the sole ground that he had failed to show compliance with the tentative rent order dated 07.07.2022 passed by the learned Appellate Court.

2.Vide order dated 07.07.2022, the learned Appellate Court had directed the petitioner to deposit future monthly rent before the 15th day of each month. On 18.07.2022, after the learned Appellate Court confirmed that the said order for the deposit of the tentative rent had not been complied with, the petitioner’s appeal was dismissed.

3.The record shows that on 10.12.2016, a lease agreement was executed between the petitioner and respondent No.3 (M/s Alamdar Tahawar and Nasira (Private) Limited) whereby a covered area of 300 square feet in building situated at Plot No.21-B, G-9 Markaz, Islamabad (“the rented premises”) was given on rent to the petitioner. The duration of the lease was up to 31.12.2018. The monthly rent was agreed to be Rs.1,00,000/- payable on/or before the 5th day of

every month with an annual increment of 12.5% every year.

4.The petitioner’s case is that since the allotment of Plot No.21-B was cancelled by the Capital Development Authority (“C.D.A.”) vide letter dated 12.08.2020, a relationship of landlord and tenant ceased to exist between respondent No.3 and the petitioner, and the latter was under no obligation to pay rent to respondent No.3. The said allotment was cancelled because Plot No.21-B had been allotted for the purpose of a hotel, whereas the said plot had been subjected to non-conforming use i.e., commercial activity.

5.Learned counsel for the petitioner was asked by this Court until when the petitioner had paid the rent. After taking instructions, learned counsel for the petitioner submitted in clear terms that the rent had been paid until April 2021. He candidly admitted that the petitioner had not paid any rent beyond April 2021. This Court asked the learned counsel for the petitioner if the petitioner would deposit all the accumulated unpaid rent in the Court account by tomorrow i.e., 27.07.2022. The learned counsel for the petitioner could not give any commitment regarding the payment of unpaid rent.

6.The petitioner has been living rent free in the rented premises since April 2021. However, whether the rent has been paid by the petitioner for the period before April 2021 needs to be verified.

7.The learned Rent Controller has recorded in the order dated 31.05.2022 that the C.D.A., while cancelling the allotment of Plot No.21-B informed respondent No.3 that it may seek the restoration of the said plot in accordance with the Restoration Policy-2014. Clause 7 of the said policy provides inter alia that plots cancelled due to non-

conforming use will be restored after the non- conforming use has been removed.

8.The petitioner is carrying out business in the rented premises, which activity comes within the ambit of non-conforming use. Until the petitioner vacates the rented premises, respondent No.3’s pending application before the C.D.A. Board for the restoration of Plot No.21-B cannot be considered. In other words, the petitioner wants to create a situation which enables him to continue carrying out business activity in the rented premises and that too rent free. The continuation of this activity would result in respondent No.3’s application for the restoration of Plot No.21-B not to be taken up for consideration. Since this conduct of the petitioner is most inequitable and unjust, he cannot be shown any indulgence by this Court in exercise of the writ jurisdiction under Article 199 of the Constitution.

9.Additionally, it was also admitted by the learned counsel for the petitioner that there is presently no valid lease agreement between the petitioner and respondent No.3. The lease agreement executed on 10.12.2016 has expired on

10.The petitioner’s entry into the rented premises was admittedly on the basis of the lease agreement dated 10.12.2016. Simply because the allotment of Plot No.21-B has been cancelled, the petitioner does not lose his status as a tenant.

11.The learned counsel for the petitioner tried to question the impugned order dated 18.07.2022 by contending that the direction made by the learned Appellate Court in its order dated 07.07.2022 to deposit future rent by the 15th of each month meant that the petitioner had to deposit rent for the following month of August 2022 by 15th

August 2022. An order passed prior to the 15th of July 2022 requiring the payment of future rent clearly meant that the tentative rent had to be deposited by 15.07.2022. It is an admitted position that the rent for the month of July 2022 had not been paid by the petitioner either before or after the passing of the tentative rent order. The petitioner did not pay the tentative rent by the deadline imposed by the learned Appellate Court vide order dated 07.07.2022. This failure on the part of the petitioner justified the dismissal of his appeal. Reliance in this regard may be made on the following case law:-

(i)In the case of Mushtaq Ahmad Kiani Vs. Bilal Umair, reported 2009 SCMR 1008, the tenant was directed under Section 17(8) of the IRRO to deposit rent on or before a specified date. As the tenant failed to comply with a direction of the learned Rent Controller, his defence was struck off and the eviction petition was allowed. The Hon'ble Supreme Court held that the provision of Section 17(9) of the IRRO was mandatory, and where the tenant does not deposit the rent in compliance with an order passed under Section 17(8) of the IRRO, the learned Rent Controller was left with no discretion except to order the ejectment of the tenant without further proceedings.

(ii)In the case of Bilal Abid Vs. District Judge (West) Islamabad reported as 2015 YLR 2405, this Court has not even condoned a delay of two days in the deposit of rent in compliance with Section 17(8) of the IRRO. On account of such delay in the deposit of rent, the tenant was held to

have become a defaulter and liable to be evicted from the rented premises under Section 17(9) of the IRRO.

(iii)In the case of Shamshad Ali Vs. Ghulam Muhammad Chaudhry reported as 2009 CLC 52, this Court held that the learned Rent Controller was fully competent under the law to pass the ejectment order and strike off the defence of the tenant in case of non-compliance of an order passed under Section 17(8) of the IRRO. In the said case, this Court dismissed a writ petition against an appellate order, whereby the appeal against the eviction order passed by the learned Rent Controller under Section 17(9) of the IRRO, was dismissed. This is what also happened in the case of Hassan Ali Khan Vs. Additional District Judge Islamabad, reported as 2003 CLC 1819.

(iv)In the case of Major (R) Shakil-ud-Din Ahmad Vs. Addl. District Judge, Islamabad, reported as 2007 CLC 601, it has been held at paragraph 5 of the said judgment as follows:- “5. In the instant case the facts are very simple. The relationship of landlord and tenant between the parties is admitted, therefore, on 13-6-2006 the learned Rent Controller correctly passed an order in exercise of jurisdiction under section 17(8) of the Islamabad Rent Restriction Ordinance, 2001 directing the petitioner to deposit the past rent and fixed the case for 28-6-2006 for production of proof of the rent deposited. The petitioner did not challenge the jurisdiction of the Rent Controller at the time of passing the order under section 17(8) of the Ordinance, but he moved an application on the said date for extension of time of 15 days for payment of rent instead of depositing the same. .... Since the petitioner violated the order dated 13-

6-2006 passed by the Rent Controller under section 17(8) of the Islamabad Rent Restriction Ordinance and did not deposit the rent as ordered by the Court, therefore, the Rent Controller had no option except to strike off the defence of the petitioner and passed the order of ejectment in exercise of the jurisdiction under section 17(9) of the Ordinance. In the case reported as Zikar Muhammad v. Mrs. Arifa Sabir and another 2000 SCMR 1328, where the Rent Controller had struck off defence of the tenant and ordered him to hand over the vacant possession of premises to landlord and the High Court holding that there was no good cause or reasonable explanation for delay/negligence in payment of rent by the tenant dismissed the appeal, the Honourable Supreme Court while interpreting the provisions of section 13(6) of the West Pakistan Urban Rent Restriction Ordinance (VI of 1959), which are parimateria of section 17(8) of the Islamabad Rent Restriction Ordinance, 2001 (IV of 2001), has ruled that, "High Court having rightly concluded that defence of the tenant was rightly struck off by the Court below, no valid ground existed for interference in the order of High Court" and refused leave to appeal."

12.Since I have been given no reason to interfere with the concurrent orders passed by the learned Courts below, the instant petition is dismissed in limine.

(MIANGUL HASSAN AURANGZEB)

JUDGE

Sultan*