Mian Muhammad Rauf, Advocate for the petitioner.

Date of hearing: 24^th May, 2022.

ORDER

Mirza Viqas Rauf, J—The petitioner claiming himself the landlord of the residential quarter constructed on land measuring 5- Marla situated at Chak Jiya Musa Rasheed Street Kasur Pura, Lahore filed an ejectment petition under Section 19 of the Punjab Rented Premises Act, 2009 (hereinafter referred to as “Act, 2009”) before the learned Special Judge (Rent), Lahore for the eviction of respondent No.2 (hereinafter referred to as “respondent”) on the ground of default in payment of rent. The ejectment proceedings were resisted by the “respondent” through an application under Section 22 of the “Act, 2009” seeking leave to contest wherein she denied the relationship of landlord and tenant. The application was accepted by way of order dated 24th March, 2018 and the “respondent” was allowed leave to contest the ejectment petition. From the divergent pleadings of the parties, the learned Special Judge (Rent) framed multiple issues. After recording evidence from both the sides, the ejectment petition was ultimately dismissed by way of order dated 8th April, 2021. Feeling aggrieved, the petitioner though preferred an appeal under Section 28 of the “Act, 2009” but the same was dismissed through judgment dated 20th April, 2022, hence this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973.

2.    Learned counsel for the petitioner contended that there are self-contradictory pleas of the “respondent” in her application for leave to contest. He added that initially the “respondent” resisted the ejectment proceedings on the ground that she has purchased the property through a sale deed. Learned counsel maintained that contrary to this, in the evidence the “respondent” deposed that she is occupying the premises in question on the basis of an agreement to sell. Submitted that even suit instituted by the “respondent” on the basis of agreement to sell was dismissed. It is argued with vehemence that the Courts below have grossly misread the evidence while dismissing the ejectment petition. In order to supplement his contentions, learned counsel has placed reliance on SHAJAR ISLAM v. MUHAMMAD SIDDIQUE and 2 others (PLD 2007 Supreme Court 45).

3.    Heard. Record perused.

4.    The petitioner while invoking the provisions of the “Act, 2009” filed the ejectment petition under Section 19 of the Act ibid canvassing that the “respondent” obtained the premises in question on rent from his mother under an oral tenancy and after the demise of his mother, she though continued her possession but stopped the payment of rent w.e.f August, 2017. While resisting the ejectment petition, the “respondent” denied the existence of relationship of landlord and tenant claiming that she purchased the property in question from Anwar Begum through her son Mian Abdul Waheed Tariq with sale consideration of Rs.80,000/- out of which Rs.50,000/- was paid as earnest money whereas rest of Rs.30,000/- was to be paid at the time of registration of sale deed. It is canvassed by the “respondent” that Anwar Begum could not execute the sale deed due to unavoidable circumstances, however, she delivered the possession of premises in question to “respondent” and as such she is occupying the premises, being bonafide purchaser.

5.    In view of denial of relationship, the learned Special Judge (Rent) though framed multiple issues but to my mind, issue No.1 is quite relevant, which reads as under: –

Whether there exists relationship of landlord and tenant between the parties and respondent is liable for eviction on the grounds mentioned in ejectment petition? OPA

6.    In view of denial of relationship, the petitioner was primarily obliged to prove the existence of relationship of landlord and tenant. To this effect, the petitioner examined his special attorney Mujahid Mahmood as AW-1. Mian Razzaq appeared as AW-2 and Mian Naeem was produced as AW-3. Contrary to this, Rukhsana Bibi, attorney of “respondent” appeared as RW-1 and Mirza Tariq Baig was examined as RW2. Both the sides have also tendered in evidence certain documents in support of their respective claims.

7.    In order to regulate the relationship of landlord and tenant and to provide a mechanism for settlement of disputes in expeditious and cost effective manner and for connected matters, the “Act, 2009” was promulgated while repealing the previous law on the subject i.e. Punjab Urban Rent Restriction Ordinance, 1959. Section 19 of the “Act, 2009” prescribes the manner of filing of application before the Rent Tribunal constituted for the said purpose in terms of Section 16 of the “Act, 2009”. An application under Section 19 of the “Act, 2009” can be filed in respect of rented premises. Section 15 provides the grounds for eviction on the basis whereof a landlord can seek the eviction of the tenant. After reading the preamble and above referred provisions of law, the term “landlord” and “tenant” becomes of significant importance. Section 2 (d) defines the term “landlord” as under: –

“landlord” means the owner of a premises and includes a person for the time being entitled or authorized to receive rent in respect of the premises;

Whereas tenant is defined in Section 2 (l), which reads as under: –

“tenant” means a person who undertakes or is bound to pay rent as consideration for the occupation of a premises by him or by any other person on his behalf and includes:

(i) a person who continues to be in occupation of the premises after the termination of his tenancy for the purpose of a proceeding under this Act;

(ii) legal heirs of a tenant in the event of death of the tenant who continue to be in occupation of the premises; and

(iii) a sub-tenant who is in possession of the premises or part thereof with the written consent of the landlord;

8.    After having an overview of the preamble of the “Act, 2009” and the definitions of the “landlord” and “tenant”, it becomes crystal clear that for invoking the provisions of the “Act, 2009”, the landlord has to establish that the person whose eviction is sought from the premises is occupying the same as tenant. Both these terms are interlinked and interconnected with each other. Mere fact that a person is a landlord is not sufficient to give a premium to him to get the eviction of the occupant of the premises while invoking the provisions of the “Act, 2009”. The landlord has to establish that the person whose eviction is sought is occupying the rented premises as tenant. For the said purpose, the landlord has also to prove that the occupant is a person, who undertook or is bound to pay rent as consideration for the occupation of the premises by him/her or by any other person on his/her behalf.

9.    It is an admitted fact that there is no written tenancy between the parties. There is no cavil that in absence of written tenancy, parties can settle their terms through an oral agreement, which has to be brought in conformity with the provisions of the “Act, 2009” in terms of Section 8. Learned counsel for the petitioner has though pointed out certain flaws in the claim of the “respondent” but that by itself is not sufficient to pave way for the petitioner to seek her eviction by invoking the provisions of the “Act, 2009”. The petitioner did not appear himself in the witness-box and he has merely tendered his affidavit as Exh.A2, which was brought on record through his attorney namely Mujahid Mahmood, AW-1, who even did not tender his own affidavit in evidence. Mian Razzaq, while appearing as AW-2 during his cross-examination admitted that he has not mentioned in his affidavit Exh.A4 that he is the witness of oral tenancy and tenancy was effected at what time, date and place. He also admitted that rent was never paid in his presence. Same was the statement of Mian Naeem AW-3. In short, it can safely be inferred that no material was brought on the record to the effect that the “respondent” has ever undertaken to pay the rent of the premises or she in any way was bound to pay rent as consideration for occupation of the premises. This was clearly a question of fact, which was determined by the two Courts below of competent jurisdiction in negative after due appraisal of evidence, which are apparently unexceptionable.

10.         The judgment in the case of SHAJAR ISLAM supra heavily relied upon by learned counsel for the petitioner runs on entirely different facts and circumstances. In the said case, ejectment petition was filed under the West Pakistan Urban Rent Restriction Ordinance, 1959 on the ground of default in payment of rent and personal bonafide need, which was accepted by the Rent Controller against which the tenant though had filed an appeal before the learned Additional District Judge but that too was dismissed. The tenant then filed a constitutional petition, which was accepted while setting at naught concurrent findings of the Courts below. It would not be out of place to mention here that the “Ordinance” ibid provided entirely different procedure as contained in the “Act, 2009”. In this background, the Hon’ble Supreme Court of Pakistan set aside the findings of the High Court while observing that the learned counsel for the respondent has not been able to point out any legal or factual infirmity in the concurrent finding on the above question of fact to justify the interference of the High Court in the writ jurisdiction and this is settled law that the High Court in exercise of its constitutional jurisdiction is not supposed to interfere in the findings on the controversial question of facts based on evidence even if such finding is erroneous. It was also observed that scope of the judicial review of the High Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 in such cases is limited to the extent of misreading or non-reading of evidence or if the finding is based on no evidence, which may cause miscarriage of justice but it is not proper for the High Court to disturb the finding of fact through reappraisal of evidence in writ jurisdiction or exercise this jurisdiction as a substitute of revision or appeal. In the present case, the question of relationship of landlord and tenant has been decided concurrently in negative by the Courts below, which findings are now under challenge before this Court and the petitioner is seeking substitution of concurrent findings of fact in writ jurisdiction, which of course is not permissible under the circumstances.

11.         Needless to reiterate that the learned Rent Tribunal established under Section 16 of the “Act, 2009” can only exercise the jurisdiction with regard to rented premises if there exists relationship of landlord and tenant between the parties. As already observed that the petitioner has badly failed to prove such relationship so this was certainly the reason that both the courts below were not persuaded to pass an order of eviction of “respondent”. Reference in this respect if needed can be made to Mian UMAR IKRAM-ULHAQUE versus Dr. SHAHIDA HASNAIN and another (PLJ 2017 SC 1) wherein it is held that :-

“3.    Leave has been granted to consider whether an order under Section 24 of the Act can be passed where the relationship of tenancy has been denied and the effect of Section 10 of the Act upon such denial. Although the legislative history of rent laws in Pakistan has been discussed in detail in Rana Abdul Hameed Talib’s case (supra), nevertheless we find it expedient to briefly reiterate the same for the sake of completeness before deciding the proposition in hand. Initially disputes inter se landlords and tenants relating to leases and tenancies were dealt with under the general law of the land i.e. Transfer of Property Act, 1872 (excluding leases of agricultural properties, dealt with by the revenue Courts) and the same were adjudicated by the Courts of general jurisdiction (see Section 9, CPC). The West Pakistan Rent Restriction Ordinance, 1959 (Ordinance) a special law was enacted for the purposes of resolution of such disputes between landlords and tenants within the purview of the provisions mentioned therein, particularly Section 13 of the Ordinance which provided the grounds upon which a tenant may be evicted by the landlord. The definitions of landlord and tenant were specifically provided and it is clear that jurisdiction under this special law was endowed in three ways. The first was jurisdiction upon the subject matter i.e. the property was to be urban immovable property – residential or non-residential, or rented land etc. The second was jurisdiction upon the parties i.e. there was to be a relationship of tenancy, in other words the dispute must be between the landlord and tenant as defined in the law. The third was territorial jurisdiction. Therefore if any of the aforementioned requirements were not met, the Rent Controller would have no jurisdiction over the matter before him. With respect to the second type of jurisdiction: if the respondent in a rent matter denied the relationship of tenancy, a question of jurisdictional fact would arise. The doctrine of jurisdictional fact connotes that the jurisdiction of an adjudication forum is dependent upon the ascertainment and determination of certain facts. In this behalf, N.S. Bindra in the Interpretation of Statutes Seventh Edition, 1984, p.229, has defined “Court’s jurisdiction to determine the jurisdictional fact”, as follows:–

“Court’s jurisdiction to determine jurisdictional facts. It is well settled that a Tribunal can investigate into the facts relating to the exercise of its jurisdiction when that jurisdictional fact itself is in dispute. Where a Tribunal is invested with jurisdiction to determine a particular question, it is competent to determine the existence of the facts collateral to the actual matter which the Tribunal has to try. This power to decide collateral facts is the foundation for the exercise of its jurisdiction.”

In Halsbury’s Laws of England, it has been stated;

“Where the jurisdiction of a tribunal is dependent on the existence of a particular state of affairs, that state of affairs may be described as preliminary to, or collateral to the merits of, the issue. If, at the inception of an inquiry by an inferior tribunal, a challenge is made to its jurisdiction, the tribunal has to make up its mind whether to act or not and can give a ruling on the preliminary or collateral issue; but that ruling is not conclusive”.

12.         In nutshell one cannot be allowed to invoke the provisions of the “Act, 2009” while bypassing the other available remedies for seeking eviction of a person even if such person is an illegal occupant, trespasser or encroacher, without establishing that he is occupying the premises as tenant. The provisions of the “Act, 2009” are not meant to short-circuit the process of relevant law allowing an owner to invoke the provisions of the Act ibid without demonstrating that status of the “respondent” is of tenant. Needless to observe that occupation of the “respondent” may be illegal but for the purpose of taking the possession, the petitioner does possess certain other remedies under the law and not the ejectment petition under Section 19 of the “Act, 2009”.

13.         This petition is in the form of certiorari. Article 199(1)(a)(ii) of the “Constitution” deals with the writ of certiorari, which reads as under:-

199. Jurisdiction of High Court. (1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law–

(a)   on the application of any aggrieved party, make an order —

(i)    directing a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a Province or a local authority, to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do; or

(ii)   declaring that any act done or proceeding taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a Province or a local authority has been done or taken without lawful authority and is of no legal effect; or

(b)   on the application of any person, make an order—

(i)    directing that a person in custody within the territorial jurisdiction of the Court be brought before it so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner; or

(ii)   requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to hold that office; or

(c)   on the application of any aggrieved person, make an order giving such directions to any person or authority, including any Government exercising any power or performing any function in, or in relation to, any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II.

(underlining supplied for emphasis)

It is manifest from the above that through a writ of certiorari, a High Court on the one hand is vested with the powers to correct the errors committed by the inferior Courts or Tribunals and on the other hand to annul the acts or proceedings taken by the inferior bodies without any lawful authority.

14.         The order of certiorari issues out of High Court, and is directed to the Judge or officer of an inferior tribunal to bring proceedings in a cause of matter pending before the tribunal into the High Court to be dealt with in order to ensure that the applicant for the order may have the more sure and speedy justice. It may be made in either civil or criminal proceedings. The Court issuing a writ of certiorari acts in the exercise of a supervisory and not appellate jurisdiction. As regards the character and scope, certiorari will be issued for correcting error of jurisdiction. In order to explain it more precisely, it can be said that writ of certiorari can be issued in the following circumstances:-

(i)    when an inferior Court or tribunal acts without jurisdiction or in excess of it or fails to exercise it.

(ii)   when the Court or tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice.

(iii) if there is an error apparent on the face of the record.

Guidance in this respect can be sought from “AUQAF DEPARTMENT through Chief Administrator Auqaf, Punjab, Lahore v. SECRETARY, MINISTRY OF RELIGIOUS ZAKAT, USHAR AND MINORITIES AFFAIRS GOVERNMENT OF PAKISTAN, ISLAMABAD and 3 others” (2009 SCMR 210). The relevant extract from the same is reproduced below: –

8. As discussed in preceding paragraphs, there are two different kinds of property, one `Muslim Waqf Property’ defined in section 2(e) of the Punjab Waqf Properties Ordinance, 1979 and the other `evacuee trust property’ defined in section 2(1)(d) of the Evacuee Trust Properties (Management and Disposal) Act, 1975. These two properties can be maintained by the concerned functionaries/ authorities under the relevant provisions of law. The Administrator Auqaf is not competent to take over possession, control and management of the `evacuee trust property’, rather it is the Chairman, Evacuee Trust Property Board, who is competent for the same. Learned counsel for the petitioner has not been able to controvert the above provisions of law. The High Court has validly observed that the question as to whether the transfer in 1960 was or was not `bona fide’ cannot be determined because it was not a question of law. The High Court has competently dismissed the writ petition as findings recorded by the respondent/authorities being based on appreciation of evidence could not be interfered with by the High Court in exercise of “extraordinary” constitutional jurisdiction and in regard to finding of fact recorded by the respondent writ of “certiorari” could only be issued, if in recording such findings, the respondent had acted on evidence which was legally inadmissible or had refused to accept admissible evidence or if the findings were not supported by any evidence at all. If in such cases error would amount to error of law. Even otherwise, where there are factual controversies, this Court would also not interfere with the concurrent findings of facts recorded by the lower fora. The impugned order having not suffered from any such infirmity or illegality calling for interference by this Court.

15. In the case of RAHIM SHAH versus THE CHIEF ELECTION COMMISSIONER OF PAKISTAN AND ANOTHER (PLD 1973 Supreme Court 24) the Hon’ble Supreme Court of Pakistan also outlined the scope of writ of “certiorari” in the following words:-

“It may be further observed that although the conditions for grant of certiorari which obtain in English Courts do not apply to High Courts in Pakistan at the same time the extent of this constitutional jurisdiction cannot be enlarged to an appeal on facts, or questions of law. An appeal is a creation of statute and if no appeal is provided by the Legislature the determination of a tribunal of exclusive jurisdiction is final. The scope of interference in the High Court is, therefore, limited to the inquiry whether the tribunal has in doing the act or undertaking the proceedings acted in accordance with law. If the answer be in the affirmative the High Court will stay its hands and will not substitute its own findings for the findings recorded by the tribunal. Cases of no evidence, bad faith, misdirection or failure to follow judicial procedure, etc. are treated as acts done without lawful authority and vitiate the act done or proceedings undertaken by the tribunal on this ground. Where the High Court is of opinion that there is no evidence proper to be considered by the inferior tribunal in support of some point material to the conviction or order, certiorari will be granted.”

16.         This Court in the case of BASHIR AHMAD KHAN versus ADDITIONAL SESSIONS JUDGE and others (2020 MLD 42) also observed as under :-

“7……….The person invoking the Constitutional jurisdiction under the above Article seeking issuance of writ of certiorari, by way of setting aside the order, has to show that the order, under challenge, violates the condition mentioned in the above provisions of the Constitution, that the authority/court/tribunal was denuded of jurisdiction whatsoever to pass the order or that the order impugned is unsustainable on account of being result of extremely, improper exercise of jurisdiction or has clearly been passed in violation of any provisions of law or is product of excess or failure of jurisdiction, by the tribunal or that some principle of law laid down by the superior courts, which under Article 189 of the Constitution is binding on the subordinate courts has been violated. The scope of interference by the High Court is, therefore, limited to the inquiry whether the tribunal has in doing the act or undertaking the proceedings acted in accordance with law. If the answer be in the affirmative the High Court will stay its hands and will not substitute its own findings for the findings recorded by the tribunal. Cases of no evidence, had faith, misdirection or failure to follow judicial procedure, etc. are treated as acts done without lawful authority and vitiate the act done or proceedings undertaken by the Tribunal on this ground.”

17.         As a sequel of above, it can be held that a High Court is empowered to interfere in the cases of excess of jurisdiction, whether the person exceeding jurisdiction is a Court, a judicial or a quasi-judicial body or a purely executive or administrative Tribunal or officer, provided such body, authority or officer is performing functions in connection with the affairs of the Federation, a Province or a Local authority. It is trite law that a writ of certiorari cannot be used as a substitute of appeal or revision as its scope is limited and circumscribed to the eventualities noted hereinabove.

18.         The nutshell of above discussion is that the petitioner has remained unable to persuade this Court to issue a writ of certiorari, so as to annul the impugned judgments being patently illegal or perverse. One cannot entertain any doubt that both the Courts below have exercised their jurisdiction within prescribed parameters of law and no illegality is apparent on the record justifying interference by this Court. Reliance in this regard can be placed on AMJAD KHAN v. MUHAMMAD IRSHAD (DECEASED) through LRs (2020 SCMR 2155) and CHIEF EXECUTIVE MEPCO and others v. MUHAMMAD FAZIL and others (2019 SCMR 919).

19.         For the foregoing reasons, the instant petition being devoid of any merits is dismissed in limine.

Petition dismissed