Eviction petition dismissed due to the ground for eviction was not eviction ground in law.
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| 10 years rent agreement . eviction petition dismissed . |
JUDGMENT SHEET
LAHORE HIGH COURT LAHORE
JUDICIAL DEPARTMENT
Writ Petition No.38539 of 2023
Maqsood Ahmad Vs. Additional District Judge, etc.
J U D G M E N T
Date of Hearing:
14.05.2024
Petitioner by:
Hafiz Rehman Aziz, Advocate.
Respondent No.3 by: Mr. Salah-ud-Din Siddiqui, Advocate.
Anwaar Hussain, J. Through this single judgment, present as
well as connected constitutional petition bearing W.P. No.69876/2023
are being simultaneously decided, as common question of law and facts
are involved, and both the petitions have laid challenge to the findings
of the Courts below, emanating from the eviction proceedings initiated
by respondent No.3, namely, Riasat Ali, (“respondent”), who is the
petitioner in connected petition.
2.
Learned counsel for the petitioner submits that the tenancy
between the petitioner and the respondent was valid for a period of 10-
years and the eviction was sought on the ground of default and personal
need, however, issue in respect of default only was framed, by the Rent
Tribunal, and despite the fact that the same could not be proved as per
the findings of the Appellate Court below, dated 27.05.2023, the
petitioner has been directed by the Appellate Court below to vacate the
rented premises on the ground that the relationship between the parties
has become strained. Adds that such innovative ground for eviction is
violative of both the tenancy agreement between the parties as well as
the provision of the Punjab Rented Premises Act, 2009 (“Act”) as the
grounds available for eviction has been stipulated by the legislature in
Section 15 thereof, thus, strained relation as a ground of eviction is
W.P. No.38539 of 2023
alien. Further contends that the respondent was obligated to give
concise statement regarding the period for which the arrears were
claimed in terms of Section 19(3) of the Act that has not been given
and the same is fatal; that the payment of rent from 01.09.2021 to
17.01.2022 is duly acknowledged by the respondent in terms of Exh-R-
1; and that the respondent has taken contradictory positions inasmuch
as in the eviction petition, default in payment of monthly rent for one
year has been alleged without specifying the date of default as also the
exact period thereof, whereas, in his appeal preferred against the
impugned final order of the Rent Tribunal, default from the outset of
the tenancy has been alleged.
3.
Conversely, it is the case of the respondent that the document-
(Exh.R-1) is a private document, having no evidentiary value and has
been wrongly relied upon by the Appellate Court below as an
admission on part of the respondent. Adds that even otherwise, default
for the period of six months w.e.f. April, 2021 to August, 2021 and
February, 2022, which the Rent Tribunal held against the petitioner,
has been upended on the basis of presumption as the petitioner side
failed to establish that the monthly rent for the said period was paid.
4.
Arguments heard. Record perused.
5.
Following questions of law require opinion of this Court:
i.
What is the effect of failure on part of an ejectment
petitioner to give concise statement in terms of
Section 19(3) of the Act regarding the period for
which he claims arrears of rent?
ii.
Whether strained and hostile relationship between
the landlord and the tenant developed, on account
of eviction proceedings initiated by the landlord, is
a valid ground for eviction of the tenant, under the
Act?
6.
The tenancy relationship between the parties as well as the
tenancy period of ten years, commencing from 01.09.2020, is admitted.
It is also admitted feature of the case that the rented premises was a
W.P. No.38539 of 2023
vacant plot on which the petitioner has established a Marquee by
investing and injecting a substantial amount of capital. When the
respondent approached the Rent Tribunal, on 30.03.2022, in para No.3
of the ejectment petition, he stated as under:
درج ذلی ووجاہت یک انبء رپ ومج ب ب دیبلخ ےہ۔ ہیلع وئسمل ہکہی ۔3"
ےن رکاہی بباب ب ت الپٹ ذتمرکہ بباال ای ک اسل ےس ادا ہن ایک ےہ۔ ہیلع وئسمل ہی ہک ۔i
ہیلع وئسمل روےپ واج ب ب االدا ںیہ /12,00,000 - ےک ذہم ہیلع وئسمل ہی ہک ۔ ii
ڈافیرٹل ےک زرمہ ںیم آبتا ےہ۔
یک ر ا یدن ےک ریغ الپٹ ذتمرکہ بباال یس د رگ رکاہی دار و لئ ےن اس ہیلع وئسمل ہی ہک ۔ iii
"۔یئ یک ز اا تم یک و ہ ےس ب اما و لئ دےنی یک وشش یک وج ہک اس
(Emphasis supplied)
The petitioner denied the averments contained in the petition. Leave to
contest was allowed and following issues were framed:
“ISSUES
1. Whether respondent is wilful defaulter in the
payment of rent. If so, at what rate and for
which period? OPP
2. Whether respondent is liable to eviction from
demised premises? OPP
3. Whether the petitioner has got no cause of
action? OPR
4. Order.”
7.
It has been noted that only issue of default was framed to which
the respondent side has not laid any challenge. The respondent
appeared as AW-1, whereas, one Muhammad Mahad and Muhammad
Nawaz appeared as AW-2 and AW-3, respectively, whereas, on behalf
of the petitioner, he himself appeared as RW-1, one Nasir Hayat and
Nadeem Ghaffar appeared as RW-2 and RW-3, respectively. The Rent
Tribunal held that the petitioner has not paid rent from April, 2021 to
August, 2021 and February, 2022 and on this ground allowed the
eviction petition, whereas, when the appeals were preferred by both
sides, the appeal of the respondent was dismissed, whereas, the appeal
4
W.P. No.38539 of 2023
of the petitioner was partly allowed and findings of the learned Rent
Tribunal determining the arrears of monthly rent from the month of
April 2021 to August, 2021 and February, 2022 were set aside.
8.
Having above referred factual matrix and evidentiary resume of
the case in sight, and before answering the first legal question, it will be
appropriate to reproduce Section 19 of the Act that reads as under:
19. Filing of application.– (1) An application in respect
of a rented premises shall be filed in the Rent Tribunal of
the area or the district.
(2) If an application is filed under sub-section (1), the
Administrative Special Judge (Rent) of the area or the
district may take cognizance of the case or entrust the same
to any other Special Judge (Rent).
(3) An application under sub-section (1) shall contain a
concise statement of facts, the relief claimed and shall
be accompanied by copies of all relevant documents in
possession of the applicant.
(4) If the application is for eviction of a tenant, the
landlord shall submit his affidavit and affidavits of not
more than two witnesses along with the eviction
application.
(Emphasis supplied)
9.
The term “concise statement” has not been defined by the Act,
however, Order VI, Rule 2 of Code of Civil Procedure, 1908 refers to
the term in the following manner:
“Every pleading shall contain, and contain only, a
statement in a concise form of the material facts on
which the party pleading relies for his claim or
defence, as the case may be…”
(Emphasis supplied)
In common legal parlance, concise statement indicates reciting of facts
with precision that forms basis of a claim and/or underlies the accrual
of cause of action. The underlying purpose is to simplify the key issues
in dispute. Therefore, the concise statement must contain enough
details of the dispute to steer the Court’s focus only to the relevant
issues making it easier for it to adjudicate. In relation to the eviction
W.P. No.38539 of 2023
proceedings initiated under the Act, the term concise statement referred
in Section 19(3) of the Act, mandates the ejectment petitioner to give
the details of the allegation against the respondent and if the allegation
of default in payment of monthly rent is made, sufficient details
pertaining to the date from which the default occurred as also the claim
as on the date of filing of the ejectment petition becomes sine qua non
of such eviction petition to succeed. In the present case, it is pertinent
to note that the respondent in his eviction petition has not given any
detail of the period of default of rent, hence, the relevant issue framed
was generic in nature. The shifting pleadings of the respondent in the
present case present a classic case study revealing the wisdom of
legislature as to why it mandated the concise statement of facts to be
spelled out in an application under Section 19 of the Act. Had the
statutory requirement of concise statement been adhered to, not only
the petitioner would have known the averments with exactitude but
there would have been also no space for the respondent to take a
somersault in appeal as to the period of default. As stated earlier, when
the appeal was preferred by the respondent, a ground was taken that the
petitioner has not paid the amount of rent from outset of the tenancy
i.e., 01.09.2020 to 01.09.2021. This stance, prima facie, was taken to
cover the lacuna of the case inasmuch as in the eviction petition no
period was given except for the statement that for one year the rent has
not been paid by the petitioner, which, in the absence of specific date of
default, would imply the year preceding the filing of the petition. The
Appellate Court below rightly appreciated the said aspect of the case,
in the judgment dated 27.05.2023, operative part whereof is reproduced
hereunder:
“13. Interestingly, the Respondent in paragraph No.3 of
his appeal has improved his stance, that Appellant has
not paid the amount of rent for the period starting from
01.09.2020 to 01.09.2021. This stance appeared to be
afterthought as the same is inconsistent with averments
of eviction petition and evidence produced by the
Respondent. Further this stance is contradictory to the
W.P. No.38539 of 2023
admission made by the Respondent in his cross
examination with regard to Acknowledgment receipt
Exh.R1.”
The true mandate of Section 19(3) of the Act is that it is obligatory for
the ejectment petitioner/landlord to narrate all the relevant and
necessary details of his claim (of default in the instant case) by
elaborating the same with precision (in terms of the date of default and
total period of default) and if he fails to do so, he cannot be allowed to
improve upon the same through the evidence. Any such improvement
would be fatal. In case reported as “ABDUL GHANI through L.Rs. vs
Messrs CALTEX OIL PAKISTAN LIMITED” (2010 S C M R 771),
where no period of default in payment of rent was mentioned in the
ejectment petition, and in the evidence, the case had been set up that
the increased annual rent of Rs.299 was not paid by the respondents,
the Supreme Court held that the same is an improvement in the course
of evidence and hence, the ejectment petitioner, in said case, was not
given any credit for the same.
10. Moreover, averment of learned counsel for the respondent that
Exh.R-1 is a private document, having no evidentiary value is
misconceived. No doubt it is a private document (part of a diary) where
factum of receipt of rent has been recorded, however, it contains
signatures of the respondent. On a pointed question by this Court,
learned counsel has acknowledged the signatures of the respondent.
Even otherwise, it belies logic that a person will enter into a tenancy
agreement that is to take effect from 01.09.2020 and the tenant (the
petitioner) will commit default from the outset and the landlord (the
respondent) will not initiate any legal proceedings for a period of about
two years while accepting the amount of rent with effect from
01.09.2021 onwards and thereafter file the eviction petition without
giving concise statement of the facts (qua period of default). This fact
has rightly persuaded the Appellate Court below to partially allow the
appeal of the petitioner, however, the Appellate Court below also
directed the petitioner to vacate the rented premises.
W.P. No.38539 of 2023
11. This takes me to the second legal question formulated
hereinabove. The Appellate Court below erred in directing eviction of
the petitioner on the ground that the relationship between the parties
has become strained and environment of distrust between the parties
has emerged as said reason does not constitute a ground of eviction
contemplated under the Act. Section 15 of the Act is the relevant
provision that reads as under:
15. Grounds for eviction.– A landlord may seek eviction of the
tenant if–
(a) the period of tenancy has expired;
(b) the tenant has failed to pay or tender the rent within a period
of thirty days after the expiry of the period stipulated in
section 7;
(c) the tenant has committed breach of a term or condition of
the tenancy agreement;
(d) the tenant has committed a violation of an obligation under
section 13;
(e) the tenant has used the premises for a purpose which is
different from the purpose for which it has been let out; or
(f) the tenant has sub-let the premises without the prior written
consent of the landlord.
Suffice to observe that the Act aims to consolidate and amend the law
relating to the relationship of landlord and tenant, inter alia, eviction of
the tenant(s). The Act envisaged grounds of eviction in term of Section
15 of the Act, quoted hereinabove and the fact that on account of
litigation between the parties, their relationship have become strained,
is not a valid ground to seek eviction. If such like grounds for eviction
are allowed to be transplanted, this would amount to the Courts
traversing beyond their domain of statutory adherence. In present case,
the Appellate Court below has travelled beyond the legislative wisdom
while passing the impugned judgment.
12. Moreover, it is noted that the rented premises was a vacant plot
at the time of creation of tenancy, which was developed into a Marquee
by the petitioner on the basis of certainty harboured by him that the
tenancy is for a period of 10 years and he would not be evicted
W.P. No.38539 of 2023
therefrom except in situations which warrant his eviction under the
tenancy agreement and/or the Act. The specific insertion of duration of
10 years, as a tenancy period, reveals the intention of the parties that
the tenancy is for fixed period that is long term. Certainly, the purpose
is to ensure that the respondent/landlord would get rent during the said
long term tenancy period and the petitioner/tenant would get return on
his investment. The premature eviction of the petitioner in the absence
of any contractual or statutory violation (default in this case) would not
only engender injustice, being detrimental to the commercial interest of
the petitioner, but would also undermine the public trust in
investment/commercial contracts and their enforcement by the Courts
that cannot be allowed by this Court.
13. In view of the preceding discussion, the present petition is
allowed and direction to the petitioner to vacate the rented premises is
set aside whereas the connected petition bearing W.P. No.69876/2023
is dismissed. No order as to costs.
(ANWAAR HUSSAIN)
JUDGE
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