dismissal of rent writ petition due to his failure to comply with the court's directive to deposit monthly rent, despite initially benefiting from the court's order for partial retention and protection of possession.
تعارف:
لاہور ہائی کورٹ نے 6 مئی 2024 کو فیصلہ دیا کہ سہیل نیاز خان کی درخواست برائے تحریری حکم (Writ Petition) کو مسترد کیا جائے۔ مقدمہ کرایہ داری کے تنازع پر مبنی تھا جس میں کرایہ دار کی جانب سے عدالت کے حکم کے مطابق ماہانہ کرایہ جمع نہ کرنے پر کارروائی کی گئی۔
مقدمے کی حقیقت:
سہیل نیاز خان اور بلال رضوان کے درمیان کرایہ داری کا تنازع تھا۔ بلال رضوان نے کرایہ کی ادائیگی میں تاخیر کی بنیاد پر بے دخلی کی درخواست دائر کی۔ سہیل نیاز خان نے کرایہ داری کے تعلق کی تردید کی، لیکن کرایہ ٹریبونل اور اپیلٹ عدالت نے بلال رضوان کے حق میں فیصلہ دیا۔
عدالتی کارروائی اور دلائل:
سہیل نیاز خان نے ہائی کورٹ میں درخواست دائر کی تاکہ نچلی عدالتوں کے فیصلے چیلنج کیے جائیں۔ عدالت نے بتایا کہ کرایہ دار نے عدالت کے حکم کے مطابق ماہانہ کرایہ جمع نہیں کیا، حالانکہ اسے جزوی تحفظ اور قبضہ کے حق سے فائدہ حاصل ہوا تھا۔ عدالت نے دیکھایا کہ کرایہ دار نے قانونی راستہ اختیار کرنے کی بجائے حکم کی تعمیل نہیں کی۔
عدالتی موقف:
عدالت نے کہا کہ حتیٰ کہ کرایہ دار نے دعویٰ کیا کہ وہ والد کے ذریعہ بطور کرایہ دار داخل ہوا تھا، مگر والد کی وفات کے بعد کرایہ کی قانونی ادائیگی بلال رضوان کو کرنا لازمی تھی۔ کوئی قانونی رکاوٹ یا دیگر وارث کی جانب سے متنازعہ مطالبہ نہ ہونے کے باعث کرایہ دار کی جانب سے کرایہ کی ادائیگی نہ کرنا قابل قبول نہیں۔
فیصلہ:
ہائی کورٹ نے سہیل نیاز خان کی درخواست برائے تحریری حکم مسترد کر دی۔ عدالت نے واضح کیا کہ نچلی عدالتوں کے فیصلے میں کوئی بڑی غیر قانونی کارروائی، ریکارڈ کی غلط تشریح یا قانونی عمل کی خلاف ورزی نہیں ہوئی، اس لیے کوئی مداخلت ضروری نہیں تھی۔
نتیجہ:
کرایہ دار کی جانب سے عدالت کے حکم کی تعمیل نہ کرنا اور قانونی ذمہ داری سے گریز، اس کے Writ Petition کے مسترد ہونے کی بنیاد بنی۔
عدالتی حوالہ جات:
Must read judgement
Shajar Islam v. Muhammad Siddique (PLD 2007 SC 45); Mian Umar Ikram-ul-Haque v. Dr. Shahida Hasnain (2016 SCMR 2186).
Lahore high court upheld dismissal of Sohail Niaz Khan's writ petition due to his failure to comply with the court's directive to deposit monthly rent, despite initially benefiting from the court's order for partial retention and protection of possession.
The main story revolves around a dispute between Sohail Niaz Khan and Bilal Rizwan regarding tenancy of rented premises. Bilal Rizwan filed an eviction petition against Sohail Niaz Khan, alleging default in rent payments. Despite Sohail Niaz Khan's denial of the tenancy relationship, the Rent Tribunal and the appellate court ruled in favor of Bilal Rizwan. Sohail Niaz Khan challenged these rulings through a writ petition, but the Lahore High Court upheld the eviction order, citing no gross illegality, misappreciation of record, or procedural impropriety. Consequently, the writ petition was dismissed.
Must read judgement
Stereo. H C J D A 38.
JUDGMENT SHEET
LAHORE HIGH COURT, LAHORE
JUDICIAL DEPARTMENT
Writ Petition No.79017/2023
Sohail Niaz Khan Versus Bilal Rizwan etc.
J U D G M E N T
Date of Hearing:
06.05.2024
Petitioner by:
Mr. Shezada Mazhar, Advocate.
Respondent No.1 by:
Mr. Fayyaz Mahmood Khan,
Advocate.
Anwaar Hussain, J.
Challenge has been laid to the
concurrent findings of the Courts below whereby the eviction petition
filed by respondent No.1 (“the respondent”) has been allowed after
dismissal of leave to appear and contest (“PLA”) filed by the
petitioner in terms of Section 22 of the Punjab Rented Premises Act,
2009 (“the Act”).
2.
By way of factual background, it has been noted that, on
22.06.2022, the respondent filed ejectment petition with the averments
that the rented premises, detail whereof is given in para 2 of the
ejectment petition, was rented out to the petitioner, under an oral
agreement, and the petitioner has committed default since April, 2018.
The petitioner was initially proceeded against ex-parte and final order
dated 05.09.2022 was passed after recording of evidence of the
respondent, which upon filing of application by the petitioner was set
aside whereafter the petitioner filed the PLA with the averments that
he was inducted, as tenant, by father of the respondent in the year
2000, under an oral tenancy, and he continued to pay the amount of
monthly rent and after demise of father of the respondent, the
petitioner has been paying rent to the mother of the respondent against
receipts, however, one year prior to the filing of the ejectment
petition, the respondent started claiming payment of rent directly to
Writ Petition No.79017/2023
2
him, with mala fide intention, and the ejectment petition was
accordingly filed. While placing reliance on the dicta laid down by the
Supreme Court of Pakistan in case reported as “Shajar Islam v.
Muhammad Siddique and 2 others” (PLD 2007 SC 45), the Rent
Tribunal, through impugned order dated 14.04.2023, dismissed the
PLA of the petitioner, holding that the tenancy relationship exists
between the parties. The appeal preferred by the petitioner, against
order dated 14.04.2023, has also been dismissed by the Appellate
Court below, through impugned judgment dated 30.10.2023.
3.
Learned counsel for the petitioner submits that the dicta laid
down by the Supreme Court in case of Shajar Islam supra has been
wrongly applied, rather misconstrued, by the Courts below in the
instant case as the petitioner has categorically denied the tenancy
relationship with the petitioner and claimed that he was inducted as
tenant by the late father of the respondent in the year 2000 and
ownership of the respondent in respect of the rented premises ipso
facto does not make the respondent as the landlord. Adds that the
respondent alleges default in payment of rent since April, 2018,
however, the ejectment petition was filed in the year 2022 without
explaining the delay thereof, which fact exhibits mala fide on part of
the respondent and the same has escaped notice of the fora below.
Further adds that the Rent Tribunal has erred in recording that the
petitioner has acknowledged relationship of landlord and tenant with
the respondent.
4.
Conversely, learned counsel for the respondent submits that the
Rent Tribunal has not granted arrears of the rent with effect from
April, 2018 and even if there is any ambiguity in the impugned
decisions, the respondent does not lay his claim as far as arrears of
rent are concerned. Prays for dismissal of the present constitutional
petition.
Writ Petition No.79017/2023
3
5.
Arguments heard. Record perused.
6.
It has been noted that, on 30.11.2023, when this petition was
admitted by this Court and notices were issued, to the respondent, the
petitioner was directed to deposit the monthly rent with the Deputy
Registrar (Judicial) of this Court. Admittedly, the petitioner has
committed default and the rent for the month of April, 2024 was not
deposited by 5th of the said month as directed by this Court. The
application was filed by the petitioner for extension of time to deposit
the rent for the said month, which was dismissed, vide order dated
22.04.2024. When confronted with, learned counsel for the petitioner
has relied upon the law laid down in case reported as “Mian Umar
Ikram-ul-Haque v. Dr. Shahida Hasnain and another” (2016 SCMR
2186) to contend that since the relationship of landlord and tenant was
denied, neither the Tribunal nor this Court could have directed the
petitioner to deposit the rent, hence, the petitioner cannot be nonsuited on this ground. The argument is misconceived for two-fold
reason. Firstly, order dated 30.11.2023, passed in present proceedings,
directing the petitioner to deposit the rent was neither objected to nor
assailed by the petitioner before the higher forum rather, the petitioner
benefitted from the said order, partially, to the extent of retention and
protection of possession of the rented premises. In addition, the
petitioner side itself filed application for extension of time for deposit
of rent on the ground that due to Eid Holidays, rent could not be
deposited, which was dismissed vide order dated 22.04.2024 for the
reason that Eid-ul-Fitr was on 10.04.2024 and not on or before
05.04.2024. Hence, it behoves with the petitioner to have deposited
the rent in compliance of the said order from which the petitioner
cannot take such a, ironically speaking, remarkable volte face.
Secondly, the case of Mian Umar Ikram-ul-Haque supra is of no help
to the petitioner inasmuch as, unlike the case in hand, the petitioner
Writ Petition No.79017/2023
4
therein was claiming possession of the property disputed therein on
the basis of an agreement to sell entered into before the execution of
the tenancy agreement relied upon by the ejectment petitioner of the
said case. On the contrary, the petitioner in the instant case has
categorically admitted and acknowledged himself having been
inducted and got possession of the rented premises as tenant albeit by
father of the respondent through an oral tenancy. In para 3 of his
appeal preferred against eviction order, the petitioner has stated as
under:
“3.
That the succinctly stated facts of the matter are
that the Appellant entered in to an oral rent agreement
with the Father of Respondent in the Year 2000,
regarding Basement of Plaza measuring 9 Marlas situated
Block No.6, Sector A-II, Township, Lahore (“Rented
Premises”). Since 23 years the Appellant has been
regularly paying the rent to the Father of Respondent and
after the demise of Father of Respondent, Appellant has
been paying the rent to the Mother of the Respondent the
(sic) without any default. The rent agreement is also
extended mutually time to time. However, last year the
Respondent started pressurizing the Appellant for the
payment of rent to him directly instead of his mother.
The Appellant has been paying the rent to the Mother
of Respondent on regular basis and there is no question
of default of the payment of rent……”
(Emphasis supplied)
There is no explanation as to what the petitioner did after demand of
the respondent that the rent should be paid directly to him instead of
his mother (of the respondent). No receipts have been referred by the
petitioner to show that he has been continuously paying the rent to the
mother of the respondent after the demise of the father of the
petitioner.
7.
Hypothetically, even if this is presumed to be true that the
petitioner was inducted as tenant by father of the respondent, the
rented premises has devolved upon the respondent being legal heir,
Writ Petition No.79017/2023
5
which status of the respondent is neither denied nor disputed by the
petitioner. Moreover, the petitioner, as a measure of showing his bona
fide, has neither approached the Rent Tribunal for deposit of rent to be
paid to the lawful landlord/landowner nor has been any interpleader
suit filed rather the petitioner has failed to deposit the rent even on the
direction of this Court. This indicates the dereliction, with audacity,
on part of the petitioner that cannot be countenanced. The demand of
the rent by the respondent/landowner not neutralized by conflicting
demand by any other legal heir including the mother of the
respondent/wife of the deceased father of the respondent (who was the
landlord as per contention of the petitioner) obligated the petitioner to
make payment of rent to the respondent, keeping in view the settled
principle of law that once a tenant is always a tenant. Admittedly, the
petitioner is not holding the rented premises for any fixed period. It is
also settled principle of law that an oral tenancy is a tenancy on month
to month basis and the petitioner was obligated to vacate the rented
premises, upon intimation of the landlord. No other person on behalf
of father of the respondent has come forward to lay any claim,
although the sale deeds, pertaining to the rented premises, in favour of
the respondent depicting him exclusive owner thereof are also not
disputed. Therefore, denial of the tenancy relationship by the
petitioner with the respondent is contumacious and therefore, the PLA
was rightly dismissed and ejectment order has been correctly passed
by the fora below.
8.
As far as the averment of learned counsel for the petitioner that
the Rent Tribunal has erred in allowing the ejectment petition as
prayed for and allowed the recovery of rent from April, 2018 till
handing over of the possession of the rented premises is concerned,
suffice to observe that the said averment is belied from the record. In
Writ Petition No.79017/2023
6
the impugned order dated 14.04.2023, the Rent Tribunal has held as
under:
“28. ….The petitioner has claimed default in payment
of monthly rent since April-2018 but there is no
reasonable explanation available on record as to why the
petitioner failed to agitate his grievance for such a long
time. Therefore, the claim of the petitioner for default
in amount of outstanding rent since April-2018 is
rejected….”
(Emphasis supplied)
The above-quoted finding of the Rent Tribunal is self-explanatory.
Even otherwise, learned counsel for the respondent has already stated,
before this Court, that in order to avoid litigation and/or avert
protraction thereof, the respondent has not assailed or laid challenge
to the finding to the extent of recovery of arrears of monthly rent and
would be satisfied if the petitioner is evicted and possession of the
rented premises is restored.
9.
There are concurrent of findings of the Courts below against the
petitioner, which are immune from interference by this Court in its
constitutional jurisdiction unless there is some gross illegality,
misappreciation of record or procedural impropriety therein, which
could not be pointed out by learned counsel for the petitioner. In the
circumstances, no interference is called for. For what has been
discussed above, this writ petition has no merit, hence, dismissed. No
order as to costs.
(ANWAAR HUSSAIN)
Judg