Raja Qamar Zaman VS Ch. Muhammad Yousaf etc.

ORDER SHEET

IN THE ISLAMABAD HIGH COURT, ISLAMABAD

JUDICIAL DEPARTMENT

W.P.No.4828 of 2022 Raja Qamar Zaman Versus Chaudhry Muhammad Yousaf and others S. No. of order Date of order / Order with signature of Judge and that of parties or counsel / proceedings Proceedings where necessary. 27.12.2022 Mr. Saad Ahmad Rajpoot, Advocate for the petitioner.

Through the instant writ petition, the petitioner, Raja Qamar Zaman, impugns the consolidated judgment dated 30.11.2022 passed by the Court of the learned Additional District Judge, Islamabad-West, whereby his appeal against the orders dated 21.05.2022 and 29.06.2022 passed by the learned Rent Controller, Islamabad-West, was dismissed. Vide the first order dated 21.05.2022, the learned Rent Controller had directed the petitioner / tenant to deposit future tentative monthly rent in the account of the Court before the 15th day of each month and it was mentioned that non-compliance would result in consequences provided under Section 17(9) of the Islamabad Rent Restriction Ordinance, 2001 (“I.R.R.O.”). Vide the second order dated 29.06.2022, the learned Rent Controller took notice of the petitioner’s failure to deposit tentative rent in accordance with the order dated 21.05.2022 and while proceeding under Section 17(9) of I.R.R.O allowed the eviction petition filed by respondents No.1 to 9.

2.Brief facts of the case are that the petitioner is a tenant in Shop No.5, Block No.5 situated at Civic Centre, G-6 Markaz, Islamabad (“demised premises”). According to the title documents, at present, respondents No.1 to 15 are joint owners of the demised premises being legal heirs of the sons and daughters of Chaudhry Muhammad

Hayat (“Hayat”). Hayat was original owner of the demised premises. He died on 15.09.1975. The petitioner claims to have entered the demised premises through lease agreement dated 01.12.1975 executed between the petitioner’s father and Chaudhry Muhammad Nawaz (“Nawaz”) i.e., one of the sons of Hayat. Nawaz also died on 11.03.2009. On 06.04.2015 respondents No.1 to 9, who alongside respondents No.10 to 15 are the decedents of Hayat, filed eviction petition against the petitioner on the ground that since death of Nawaz, they are not being paid their share of rent and also that they require the demised premises for personal bona fide need. The petitioner contested the said petition inter alia on the ground of having no landlord and tenant relationship with the eviction petitioners as he had regularly been paying rent to the legal heirs of Nawaz and has also executed fresh lease agreements with them on 01.10.2012 and then on 03.11.2016. The learned Rent Controller, on 18.05.2015, framed an issue on the existence of landlord and tenant relationship between the parties. On the said issue, the eviction petition was initially dismissed vide order dated 03.04.2017 passed by the learned Rent Controller. Apparently, respondents No.1 to 9 assailed the said order in appeal which was allowed and the case was remanded to the learned Rent Controller for a decision afresh after impleading the legal heirs of Nawaz.

3.In post-remand proceedings, the newly impleaded respondents No.2(i) to 2(vi) i.e., legal heirs of Nawaz submitted their reply whereby they claimed that Nawaz was the original owner of the demised premises whereas Nawaz’s father Hayat was only a benami owner and that in this

regard their civil litigation was sub judice before learned Civil Court at Islamabad. In this way, they denied having title of respondents No.1 to 9. However, vide order dated 21.05.2022, learned Rent Controller, while relying on dicta laid down by the Hon’ble Supreme Court in case titled as Asmat Ullah Vs. Asmat Ullah Khan (1991 SCMR 2008) held that respondents No.1 to 9, being co- owners, have locus standi to file petition for eviction of the tenant / petitioner and further directed the petitioner under Section 17(8) of I.R.R.O. to deposit future tentative monthly rent in Court before the 15th of every month. Vide the said order dated 21.05.2022, the learned Rent Controller also framed the following issues:- “1. Whether lease agreement executed between respondent No.1 and respondent No.2 i to 2 vi is a valid document? OPR

2.Whether petitioners are entitled to get the premises vacated from respondent No.1 on ground of non-payment of rent and personal bona fide need? OPP

3.Whether the instant petition is neither maintainable nor proceedable in law and same is liable to be dismissed with cost?

OPR

4.What should the relief be?”

4.The petitioner did not deposit the tentative rent although the case was fixed twice after the rent became due on 15th of June, 2022. Therefore, vide order dated 29.06.2022, the learned Rent Controller, after taking notice of the violation of the tentative rent order dated 21.05.2022, struck off the petitioner’s defence and directed him to handover vacant possession of the demised premises to the eviction petitioners i.e., respondents No. 1 to 9. The petitioner as well as respondents No. 10 to 15 i.e., legal heirs of Nawaz assailed the said orders dated 21.05.2022 and 29.06.2022 in separate appeals which were

dismissed vide impugned consolidated judgment dated 30.11.2022. Hence, the instant petition.

5.Learned counsel for the petitioner, after narrating the facts leading to filing of the instant petition, submitted that demised premises are under tenancy since the year 1975; that the petitioner has regularly been paying the monthly rent either to Nawaz (with whom he had executed the rent agreement) or after his death to his legal heirs; that the learned Rent Controller proceeded to pass the order for deposit of tentative rent in Court without framing a preliminary issue with regard to existence of landlord and tenant relationship between the petitioner and respondents No.1 to 9; that the order dated 21.05.2022, being interlocutory in nature, could not have been challenged in appeal; that no case of default was made out against the petitioner and he could not have been proceeded against under Section 17(9) of I.R.R.O. only a few days after the date when deposit of rent was due; and that the learned Rent Controller as well as the learned appellate Court decided the matter without appreciating the grounds raised by the petitioner. Learned counsel for the petitioner prayed for the petition to be allowed in terms of relief sought therein.

6.I have heard the contentions of learned counsel for the petitioner and have perused the record with his able assistance.

7.Respondents No.1 to 9 are undisputedly among the legal heirs of Hayat who was the original owner of the demised premises and according to title documents, at present, they are co-owners of the shop in question. The said respondents filed the eviction petition inter alia on the ground of personal bona fide need. Now

personal bona fide need for the premises is a ground on which one of the co-owners can seek eviction of a tenant. It is so because personal bona fide need is a personal right of every co- owner and unlike other grounds of eviction presumption of the co-owner being agent of other co-owners at the time of seeking eviction, does not arise. Hence, I do not see any legal or jurisdictional error in the order dated 21.05.2022 passed by the learned Rent Controller.

8.In the case of Jehangir Hussain Vs. Neghat Rehman etc. (2020 CLC 249), the petitioner before this Court was one of the five co-owners of the rented premises. He had sought the eviction of respondent who had not denied status of being tenant but had denied the execution of the lease agreement with the petitioner in the said case. The eviction petition was concurrently dismissed by the learned Rent Controller as well as the learned Appellate Court due to the absence of a landlord and tenant relationship. This Court set aside the concurrent orders and remanded the matter while observing as follows:- “13. Learned counsel for the petitioner was correct in his submission that owner of the premises is included in the meaning of the word "landlord" as defined in Section 2(g) of the I.R.R.O. Respondent No.1 does not deny the fact that in terms of C.D.A.'s letter dated 11.06.1983, the petitioner was one of the five co-owners of the rented premises. Respondent No.1 also does not deny her status of a tenant in occupation of the rented premises. However, respondent No.1 asserts that since the rent agreement dated 08.09.2010 was not entered with the petitioner but another co-owner, the relationship of landlord and tenant does not exist between the petitioner and respondent No.1. This assertion of respondent No.1 found favour with the learned appellate Court.

14.I find the ground on which the learned Appellate Court dismissed the petitioner's appeal to be in derogation of the law laid down in the case of Asmat Ullah v. Amanullah Khan (1991 MLD 20), whereby it has been held that

mere execution of a deed by one of the co- owners would not by itself deprive the remaining co-owners of their legal right which accrued through operation of law. In the said case, the lease agreement dated 16.02.1984 had been executed between the tenant and one of the co-owners but the other co-owners were held entitled to file an eviction petition. In the said case, it was also held that since the co- owner with whom the rent agreement had not been executed came within the definition of the word "landlord", it would not be proper to describe such a co-owner to be a stranger or merely a brother of the landlord. Furthermore, it was held that the eviction petition instituted by such a co-owner was undoubtedly maintainable. Since the author of the said judgment rose to grace the Hon'ble Supreme Court, the ratio in the said judgment deserves respect and reverence.

15.One of the grounds on which the eviction petition was filed by the petitioner was his personal bona fide need for the rented premises. In the case of Ashiq Ali v. Naeem-ur- Rehman Tahir (1996 MLD 1131), it was held inter alia that the personal bona fide need of one of the landlords can be a valid ground for filing an application for the eviction of the tenant.

16.It may also be mentioned that the learned Rent Controller dismissed the petitioner's eviction petition without recording of evidence on the question as to whether the petitioner had been paid rent for the rented premises. A tenant is bound to pay the landlords rent in proportion to their respective shares in the rented premises unless the landlords have authorized one amongst them or a third party/attorney to receive rent.”

9.So far as the order dated 29.06.2022 is concerned, perusal of the tentative rent order dated 21.05.2022 shows that the learned Rent Controller had required the petitioner to deposit future tentative rent at the rate of Rs.138,852/- in the Court account by 15th of every month. As per the order dated 29.06.2022, whereby the eviction petition was allowed, the petitioner had not deposited the tentative rent in the Court. Therefore, the learned Rent Controller invoked the provisions of Section 17(9) of I.R.R.O. and allowed respondents No.1 to 9's eviction petition.

10.The learned Appellate Court also held that since the petitioner had failed to show compliance with the tentative rent order dated 21.05.2022, the petitioner's defence was liable to be struck off under Section 17(9) of I.R.R.O. and respondents No.1 to 9 were entitled to be given possession of the rented premises. The tentative rent order dated 21.05.2022 was passed by the learned Rent Controller under Section 17(8) of l.R.R.O., which is reproduced herein below:- “17(8) ln proceedings under this section on the first date of hearing, 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 fifteenth 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.”

11.The consequence of non-compliance of direction under Section 17(8) is provided under Section 17(9) of I.R.R.O, which is reproduced herein below:- “7(9) lf the tenant fail to deposit the amount of rent before the specified date or, as the case may be, before the fifteenth day of the month, his application if he is an applicant shall be dismissed or his defense, if he is a respondent, shall be struck off, and the landlord shall be put in possession of the building without any further proceedings.”

12.Since there is no denial that the petitioner did not comply with the order dated 21.05.2022 passed by the learned Rent Controller under Section 17(8) of I.R.R.O., I hold that the concurrent order / judgment passed by the learned Courts below are strictly in accordance with the statute and the law laid down by the Superior Courts in the following cases:-

(i)ln the case of Mushtaq Ahmad Kiani Vs. Bilal Umair (2009 SCMR 1008), the tenant was directed under Section 17(8) of I.R.R.O. 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 I.R.R.O. was mandatory, and where the tenant does not deposit the rent in compliance with an order passed under Section 17(8) of IRRO, the learned Rent Controller was left with no discretion except to order the ejectment of the tenant without further proceedings.

(ii)ln the case of Bilal Abid Vs. District Judge (West) lslamabad (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 I.R.R.O. 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 I.R.R.O.

(iii)ln the case of Shamshad Ali Vs. Ghulam Muhammad Chaudhry (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 I.R.R.O. ln 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 I.R.R.O., was dismissed. This is what had also happened in the case of Hassan Ali Khan Vs. Additional District Judge Islamabad (2003 CLC 1819).

(iv)ln the case of Major (R) Shakil-ud-Din Ahmad Vs. Addl. District Judge Islamabad (2007 CLC 601), it has been held at paragraph 5 of the said judgment as follows:- “5. ln 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.”

(v)ln the case reported as Zikar Muhammad Vs. Mrs. Arifa Sabir (2000 SCMR 1328), where the learned 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 by holding that there was no good cause or reasonable explanation for delay / negligence in payment of rent by the tenant, dismissed the appeal. The Hon’ble Supreme

Court, while interpreting the provisions of Section 13(6) of the West Pakistan Urban Rent Restriction Ordinance (Vl of 1959), which are in pari materia of Section 17(8) of I.R.R.O., 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.

13.In view of the above, 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*