Arsalan Vs Khalid Mehmood and others

Judgment Sheet

Prsn.q.wAR HIGH Counr Annorr ABAD BTXCTT

JUDICIAL DEPARTMENT

FAO No.20-d2023 with CM No.186-A/2023 Arsalan... (Appellant) Versus Khalid Mehmood and other...(Respondents) Present: Mr.Zulfiqar Ali Tanoli, Advocate for appellant.

Nemo for respondents being a motion-case.

Date of hearing : 06.06.2023.

JUDGMENT

MunA.NrNrno Ir.q,z Kn.q.N. J.- Through this single judgment, I intend to dispose of instant First Appeal against Order No.20-Al2023 titled "Arsalan vs.

Khalid Mehmood and other" as well as the following connected appeals as all these appeals are having similar facts as well as common question of law:

(l)FAO No.21-Al2023 Sardar Shah v. Khalid Memood etc.

v (2) FAO No.22-N2023 Syed Intizar Hussain Shah v. Khalid Memood etc.

(3)FAO No.23-Al2023 Muhammad Junaid v. Khalid Memood etc (4) FAO No.24-N2023 Mujahid Ali vs. Khalid Memood etc

(Jamil) (SB) Hon'ble Mr.Justice Muhammad liaz Khan.

(s)FAO No.25-Al2023 Muhammad Hanif vs. Khalid Memood etc

(6)FAO No.26-N2023 Qasim Ahmad vs. Khalid Memood etc (7) FAo No.27-N2023 Zahid Iqbal vs. Khalid Memood etc

(8)FAO No.28-A/2023 Zahid Mehmood vs. Khalid Memood etc (e) FAO No.29-Al2023 Zeeshan vs. Khalid Memood etc

(10)FAO No.30-A/2023 Muhammad Naeem Saleem v. Khalid Memood etc (11) FAO No.31-d2023 Muhammad Ismail vs. Khalid Memood etc (12) FAO No.32-Al2023 Eng.Zahid Hussain vs. Khalid Memood etc (13) FAO No.33-A/2023 Fakhtar Ali vs. Khalid Memood etc (14) FAO No.34-Al2023 Naeem Abdullah vs. Khalid Memood etc

(15)FAO No.35-A/2023 Muhammad Azeem vs. Khalid Memood etc (16) FAO No.36-A/2023 Waqas Khan vs. Khalid Memood etc (17) FAo No.37-Al2023 Shuahat Hussain vs. Khalid Memood etc (18) FAO No.38-A/2023 Muhammad Usman vs. Khalid Memood etc (19) FAO No.39-A/2023 Muhammad Naveed v. Khalid Memood etc (20) FAO No.40-A/2023

V Sajid Mehmood v. Khalid Memood etc (21) FAO No.41-Al2023 Faisal Khan vs. Khalid Memood etc (22) rAO No.42-N2023 Malik Yasir vs. Khalid Memood etc (Jamil) (SB) Hon'ble Mr.Justice Muhammad ljaz Khan.

The appellants who are tenants have challenged the order of the worthy Rent Controller, Abbottabad Cantonment dated 29.03.2023 who, upon their failure to deposit the tentative rent in the court, has struck off their defence and thereby accepted the ejectment petition filed by the respondent/landlord namely Khalid Mehmood.

2, Precisely, the facts of the cases are that respondent Khalid Mehmood being a landlord filed 23 ejectment petitions under section 17 of Cantonment Rent Restriction Act, 1963 (hereinafter referred as Act of 1963) for the eviction of his various tenants (who are appellants herein) from the shops mainly on the ground of default in payment of the monthly rent as well as arrears of rent amount as they have stopped the payment of monthly rent to the respondent/landlord for various months (detail of which is mentioned in each petition separately) V and thereby committed default in payment of the rent. As per averments of ejectment petitions, respondent/landlord requested the petitioners/ tenants, time and again, to pay the arrears as well as (Jamil) (SB) Hon'ble Mr.Justice Muhammad liaz Khan.

monthly rent or to vacate the shops in question and to hand over the vacant possession to him but the petitioners/tenants are avoiding the same on one pretext or the other. The respondent/landlord also sent the legal notices to the petitioners/tenants through his counsel but the same were not responded, therefore, the petitioners/tenants being guilty of habitual default in payment of rent are liable to be ejected from the rented shops.

3.When these petitions were filed, the petitioners (then respondents) were summoned and they submitted their written replies to the aforesaid petitions whereby they did not deny the relationship of landlord-tenants, however, they contended that they are regularly paying the monthly rent. The record further indicates that thereafter on 18.05.2022 the worthy Rent Controller passed an order under section 17(8) ofthe Act of 1963 whereby the present petitioners were directed to deposit all the arrears of rent as well as the running monthly rent, however, the aforesaid order of the worthy Rent Controller dated 18.05.2022 was challenged (Jamil) (SB) Hon'ble Mr.Justice Muhammad liaz Khan.

before this court through various Writ Petitions bearing W.P No.679-Al2022 to No.733-N2022.

When the aforesaid writ petitions came up for hearing before this court on 15.06.2022 and on the date when the worthy Rent Controller assured the court that before passing any order regarding striking of the defence of the petitioners/tenants she will consider the payment made by the petitioners (respondents) in court through different receipts and as such these writ petitions were disposed of on the strength of assurance so given by the worthy Rent Controller. The record further indicates that thereafter the worthy Rent Controller recompiled and re-verified all the deposits as well as the coffesponding receipts as alleged and made by the petitioners being tenants and thereafter it was found that the petitioners/tenants have been guilty of default in payment of rent for various months, therefore, by pressing the provision of section 17(8) V of the Act of l963,the worthy Rent Controller struck of the defence of the petitioners/tenants and thereby accepted the ejectment petition and directed the (Jamil) (SB) Hon'ble Mr.Justice Muhammad liaz Khan.

petitioners to hand over the vacant possession of the shops to the respondent/landlord within 45 days of the order, vide impugned order dated 29.03.2023 which order has now been challenged by the petitioners/tenants before this court through these connected appeals.

4.Arguments of learned counsel for the appellants were heard in considerable detail and the record perused with his able assistance.

5.The record would indicate that initially these ejectment petitions were filed by the respondent/ landlord on 17 .t|.2021, whereas the present petitioners submitted their reply to these petitions in February 2022 and thereafter it was on 18.05.2022 when the worthy Rent Controller by pressing the provision of section 17(8) ofthe Act of 1963 directed the petitioners/tenants to deposit the past arrear rent as well as to pay the running monthly rent, however, V this order was challenged by the petitioners/tenants before this court through various Writ Petitions No.679-Al2022 to No.733 -N2022 which petitions were disposed of on the assurance of the worthy (Jamil) (SB) Hon'ble Mr.Justice Muhammad ljaz Khan.

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Rent Controller to recheck the factum of deposit of past alrears and monthly rent on behalf of petitioners/tenants, which exercise was accordingly carried out and it was thereafter when the present petitioners were found to have defaulted in payment of rent for various months (fully mentioned in the impugned order of each appellant) and thus the worthy Rent Controller was having no other option but to pass an order dated 29.03.2023 as per mandate of section l7(9) of the Act of 1963 whereby the defence of the petitioners/tenants was struck of and ejectment petition of the respondent/landlord was accepted, therefore, the impugned orders are neither perverse nor arbitrary nor suffers from lack of jurisdiction nor the same is the result of improper or illegal exercise of jurisdiction vested in the worthy Rent Controller.

V 6. The impugned order of the worthy Rent Controller is exactly in accordance with law as by virtue of section 17(8) of the Act of 1963, it is well within the power of the Rent Controller to direct the tenant to pay tentative monthly rent which is to be (Jamil) (SB) Hon'ble Mr.Justice Muhammad ljaz Khan.

deposited by him in the court till the final decision of the case, whereas as per subsection 9 of section t7 of the ibid Act, if the tenant fails to deposit the rent amount as per its direction then if tenant is defendant, his defence has to be struck off and if he is an applicant, his application is to be dismissed.

Both these sections of law being relevant for the present controversy are reproduced below:

"17. @I-tenan!.-(l) ...

(s)...

(8)On the first hearing of proceeding under this section or as soon thereafter as may be put 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 denosit resularlv 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.

(9)If the tenant fails to deposit the amount of rent before the specified date or. as the r case maY be. before the 5th day of the month. his application. if he is a petitioner. shall be dismissed. or his defence. if he is a respondent. shall be struck off. and the landlord shall be put in possession of the building without any further proceedings." (underline is supplied for emphasis) (Jamil) (SB) Hon'ble Mr.Justice Muhammad liaz Khqn.

The aforesaid statutory provisions of law clearly mandate the worthy Rent Controller to direct the tenant to deposit in his office on any specified date all the rent due from him, and also to deposit the running monthly rent regularly till the final decision ofthe case, before the 5th day of each month and simultaneously it also authorizes the Rent Controller that in case of failure to deposit the amount of rent on the specified date then if the tenant is an applicant before him then his application has to be dismissed and if he is defendant before him then his defence has to be struck off, therefore, in view of the above, the Rent Controller has acted within his domain and jurisdiction and as such his orders are neither the result of improper exercise ofjurisdiction nor the same suffer from lake of jurisdiction, and thus, the same being in accordance with the law are maintained.

7, A combined perusal of subsection 8 and .(y subjection 9 of section 17 of the Act of 1963 would also indic ate that these provisions are mandatory in nature as subsection 8 authorizes the worthy Rent (Jamil) (SB) Hon'ble Mr.Justice Muhammad Iiaz Khan.

Controller that he shall at the first hearing of the proceedings or soon thereafter direct tenant to deposit in his office before the specified date all the rent due from him and also to deposit monthly rent regularly till the final decision of the case before 5th day of each month, whereas subsection 9 provides for penal consequences in case any direction issued under subsection 8 is not complied with and thus penal consequences are that if the tenant fails to honour the order of the worthy Rent Controller qua deposit of arrear of rent or running rent then if he is a petitioner before the Rent Controller his petition shall be dismissed and if he is defendant before the Rent Controller then his defence has to be struck off and thus by all standards these provisions are mandatory as it is settled since long that whenever non-compliance of a provision of law is followed by * penal consequences then such provisions are to be deemed as mandatory and not directory. In the case titled "Province of Puniab throush Conservator of Forest. Faisalabad and others vs. Javed Iqbal" reported - -r- as 2021 SCMR328, the Apex Courthas held (Jamil) (SB) Hon'ble Mr.Justice Muhammad ljaz Khan.

that a provision in a statute is mandatory if the omission to follow it renders the proceedings to which it relates illegal and void, while a provision is directory if its observance is not necessary to the validity of the proceeding. One of the important test that must always be employed in order to determine whether a provision is mandatory or directory in character is to consider whether the non-compliance of a particular provision causes inconvenience or injustice and, if it does, the court would say that that provision must be complied with and that it is obligatory in its character. There are three fundamental tests, which are often applied with remarkable success in the determination of this question. They are based on considerations of the scope and object, sometimes called the scheme and purpose, of the enactment in question, on P considerations ofjustice and balance of convenience and on a consideration of the nature of the particular provision, namely, whether it affects the performance of a public duty or relates to a right, privilege or power-in the former case the enactment (Jamil) (SB) Hon'ble Mr.Justice Muhammad liaz Khan.

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is generally directoy, in the latter mandatory. In the case titled "

Excise and Taxation Department. Lahore and others vs. Murree Brewerv Companv Limited MBCL) and AM!U'' reported as 2021 SCMR 305, it was held by the Apex Court that the test to determine whether a provision is directory or mandatory is by ascertaining the legislative intent behind the same.

The general rule expounded by this Court is that the usage of the word 'shall' generally carries the connotation that a provision in mandatory in nature.

However, other factors such as the object and purpose of the statute and inclusion of penal consequences in cases of non-compliance also serve as an instructive guide in deducing the nature of the provision. In the case titled *@

Tax, Guiranwala and others vs. @

M Din and Sons others" reported as

{ 20t7 1427. the Apex Court has held that it is settled law that when the word 'shalf is used in a provision of law, it is to be construed in its ordinary grammatical meaning and normally the use of word (Jamil) (SB) Hon'ble Mr.Justice Muhammad ljaz Khqn.

'shall' by the legislature brands a provision as mandatory, especially when an authority is required to do something in a particular manner. In another case titled o'@lqHassan. vs. Jamshaid Ali and g1!hers" reported as 2001 SCMR 1001, the Apex Court has held that where the Legislature has provided penaltylconsequences for the non- compliance of a provision such provision is "mandatory" in nature. Similar view was adopted by the august Supreme Court in the case titled o'Spg!

Zia Haider Rizvi and others vs. Deputv Commissioner of Wealth Tax. Lahore and others" reported as 2011 SCMR 420 and the case titled *@

and others vs.

!!4g!!g!" reported as PLD 2012 Supreme Court 247.

8.It is also relevant to mention here that the consequences of non-compliance of order of the worthy Rent Controller to deposit the tentative rent, on one hand, duly finds its statutory backing from subsection 9 of section 17 of The Cantonment Rent P Restriction Act, 1963 and on the other hand it has been a favorite subject of this court as wellas of the (Jamil) (SB) Hon'ble Mr.Justice Muhammad liaz Khan'

Apex Court whereby even one-day default in payment of the tentative rent has been found as fatal for the tenant. In the case titled "Muhanqn0ad-Iq-ba! t' Haider Ys.

reported as PLD 2018 Sunreme Court 35, it was held

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by the Apex Court that the petitioner has no body but himself to blame if his defence was struck off on account of his admitted failure to comply with the order leading to an order for his ejectment from the rented premises. Likewise, in case titled "fu1@ Travels (PVT.) LTD vs. Muhammad Khalid Shafi throueh Leeal Heirs" reported as PLD 2007 Supreme Court 504, it was observed that according to subsection (9) of section 17 of the Act, if the tenant fails to deposit the amount of rent before specified date,or, as the case may be before 5th of the month, his defence shall be struck off. On its bare perusal, it is manifest that the above provisions are mandatory in nature and even one day's delay in the deposi t would be default its

meaning and Rent Controller has no power to extend time and condoned the same. Similarly, in case titled "Abdul Ghafoor vs. Additional district iudee and (Jamil) (SB) Hon'ble Mr.Justice Muhammad liaz Khan.

@" reported as 2015 CLC 229 tlahorel, it is held that the Rent Tribunal not only has a power to pass an order directing the tenant for deposit of the rent due, within a specified time and continue to deposit the same, in the Bank account of the landlord or in the Rent Tribunal, till the final order is passed in the ejectment petition, but if tenant fails to comply with the above mentioned direction to forthwith pass the final order. Same view was adopted in case titled "Syed Ali Shah vs. Additional District Judee and others" reported as 2014 C L C 929 [Lahorel.

9.In view of above discussions and expositions of law, appellants/tenants have failed to make out a case for interference of this court in the impugned order, therefore, the instant appeal alongwith the connected appeals being bereft of any merit are dismissed in limine. However, the petitioners/ tenants at the end requested that since they are running their commercial activities/business in the r7 rented shops, therefore, the vacation period may be extended reasonably. Their this request seems genuine, therefore, vacation period as specified in the impugned order is extended from 45 days to 90 days.

(Jamil) (SB) Hon'ble Mr.Justice Muhammad liaz Khan.

CM No.186-N2023.

Mun,q.IvrvlAn lraz Knuv, J.- As the main FAO has been dismissed in limine, therefore, the instant CM has become infructuous, hence, the same is also dismissed.

ANNouNcno.

(Jamil)

(SB)Hon'ble Mr.Justice Muhammad ljaz Khan.