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Judgment Sheet
IN THE LAHORE HIGH COURT, LAHORE
JUDICIAL DEPARTMENT
Writ Petition No. 45912/2022
Shabana Parveen
Versus
Malik Mohsin Hassan Rasheed etc.
JUDGMENT
Date of hearing: 06.05.2025
Petitioner by: Mr. Muhammad Akbar Awan, Advocate.
Respondents No.1 M/s Muhammad Usman Rasheed, Ahtisham-ud-
to 3 by: Din Khan and Nouman Sarwar, Advocates.
MALIK WAQAR HAIDER AWAN, J:- Through this
constitutional petition, petitioner has assailed the legality and validity
of order dated 16.03.2022 and judgment dated 16.06.2022 passed by
learned Civil Judge 1 st Class, Jaranwala and learned Additional District
Judge, Jaranwala, respectively.
2. Concisely, facts giving rise to the present petition are that
respondents No.1 to 3 moved an application for production of
Muhammad Sajjad, son of Muhammad Abdullah, as a witness and
furnishing his affidavit coupled with photocopy of passport whereas
petitioner filed an application for issuance of direction to respondents
No.1 to 3 for depositing rent in the Court. Through a consolidated
order dated 16.03.2022, the former application moved by respondents
No. 1 to 3 was allowed by learned Civil Judge 1 st Class, Jaranwala
whereas the second application filed by the petitioner was dismissed.
Feeling aggrieved, the petitioner preferred an appeal challenging order
dated 16.03.2022 which was dismissed by learned Additional District
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Judge, Jaranwala through judgment dated 16.06.2022, hence this writ
petition.
3. Learned counsel for the petitioner contends that Section 22(3) of
the Punjab Rent Premises Act, 2009 (hereinafter referred to as “Act”)
provides ceiling regarding number of witnesses (which is two), hence
both the learned courts below failed to follow the statute which
resulted into passing of impugned order/judgment which is not
sustainable in the eye of law. Further adds that when law requires an
act to be done in a particular manner, then it has to be done in that
manner and not otherwise. Regarding deposit of rent in Court, learned
counsel for the petitioner submits that respondents No.1 to 3 who are
contesting the ejectment petition are obligated to deposit rent in the
Court and if petitioner succeeds to make out her case, she would be in
a position to withdraw the same but both the learned courts below did
not take into consideration this aspect of the matter. Relies upon
Province of West Pakistan v. Raja Bashir Muhammad Khan (PLD
1983 Lahore 53), Sahib and 3 others v. the State (1990 MLD 1161),
Muhammad Jafar Tarar v. District Magistrate, Gujranwala and
another (1990 CLC 281), Muhammad Jahangir v. Muhammad Abbas
and 2 others (2004 CLC 538), Robina Yasmeen and others v. Rana
Javed Iqbal and others (2011 CLC 1779), Khalil-ur-Rehman and
another v. Dr. Manzoor Ahmed and others (PLD 2011 Supreme
Court 512) and judgment dated 11.09.2024 passed in Civil Petition
No. 2565 of 2023 titled Allah Bakhsh (deceased) through L.Rs. &
others v. Muhammad Riaz & others.
4. On the other hand, learned counsel representing respondents
No.1 to 3 submits that provision of Section 22(3) of the Act dealing
with number of witnesses is directory in nature and not mandatory.
With regard to deposit of rent in the Court, learned counsel contends
that respondents No. 1 to 3 have already vacated the premises, hence
both the learned courts below decided in a rightful manner as uptil
WP No. 45912/2022 3
now, relationship of landlord and tenant is not established. Places
reliance upon Mian Umar Ikram-ul-Haque v. Dr. Shahida Hasnain and
another (2016 SCMR 2186).
5. Heard. Record perused.
6. There are two pivotal questions for determination before this
Court as follows:-
(i) Whether provision of Section 22(3) of the Act is directory
or mandatory in nature?
(ii) Whether order for deposit of rent in Court can be passed
by the Special Judge (Rent)/Rent Tribunal when relationship of
landlord and tenant is yet to be determined?
7. It has been held in judgments reported as Commissioner Inland
Revenue, Zone-II, Regional Tax Officer (RTO), Mayo Road,
Rawalpindi and another v. Messrs Sarwaq Traders, 216/1-A, Adamjee
Road, Rawalpindi and another (2022 SCMR 1333) and Orient Power
Company (Private) Limited through Authorized Officer v. Sui Northern
Gas Pipelines Limited through Managing Director (2021 SCMR
1728), that the words “may” and “shall” used in a Section of an Act or
an Ordinance are interchangeable and their interpretation as to whether
they are directory or mandatory in nature depends upon the context in
which they are used and cannot be interpreted with the rigidity
attributed to them in ordinary parlance. It has also been held that if no
penal consequences are given in a provision, even if the word “shall”
is used therein, the said provision becomes directory (and not
mandatory) and the word “shall” will be read as “may”.
8. The Supreme Court of Pakistan in judgment reported as
Province of Punjab through Conservator of Forest, Faisalabad and
others (2021 SCMR 328) has highlighted the principles and test to
determine whether a provision in a statute is directory or mandatory in
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nature. The operative part of the said judgment is reproduced as
under:-
In order to determine whether the aforesaid proviso is
directory or mandatory, the duty of the court is to try to
unravel the real intention of the legislature. The
ultimate test is the intent of the legislature and not the
language in which the intent is clothed. The object and
purpose of enacting the provision provide a strong and
clear indicator for ascertaining such intent of the
legislature. The intention of the legislature must govern
and this is to be ascertained not only from the
phraseology of the provision but also by considering its
nature, its object, and the consequences which would
follow from construing it one way or the other. This
exercise entails careful examination of the scheme of
the Act in order to discover the real purpose and object
of the Act. 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 tests 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
within 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 considerations of
justice 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 is generally directory, in the
latter mandatory.”
9. Likewise, in another judgment of the Supreme Court of Pakistan
reported as Province of Punjab through Secretary Excise and Taxation
Department, Lahore and others v. Murree Brewery Company Limited
(MBCL) and another (2021 SCMR 305), distinction between
WP No. 45912/2022 5
mandatory and directory provisions has been drawn. The operative part
of the judgment is as follows:-
“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 is 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.”
10. A bare perusal of the afore-noted interpretation of a mandatory
and directory provision would make it crystal clear that the said
provision of law is “directory” in nature, however, Courts are required
to make all endeavours to follow the directory persuasions but not at
the cost of justice.
11. Although in Section 22(3) of the Act, the words “affidavits of
not more than two witnesses” have been mentioned but these words are
directory in nature and Court can exercise its jurisdiction keeping in
view the facts of the case and can allow more witnesses to appear in
the witness box and depose. The purpose of the Act is to regulate the
relationship between landlords and tenants in Punjab and provide a
mechanism for resolving disputes in a timely and cost -effective
manner. The rationale behind mentioning of number of witnesses is
actually to curtail the time spent in rent matters and expeditious
disposal thereof.
12. It would be significant to note that trial court plays a crucial role
in steering the trial process, ensuring fairness and upholding legal
procedures. Trial court directly deals with the ground realities and
different stages of trial. Furthermore, case file maintained by the trial
court remains almost the same upto the level of Apex Court of the
country. Last but not the least, trial court being at the helm of affairs
closely monitors and controls the speed of trial and can exercise its
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discretion but in accordance with legal principles while applying
judicious mind.
13. In the instant case, if production of witness namely Muhammad
Sajjad, son of Muhammad Abdullah is permitted, even then it will not
prejudice the case of either party as the petitioner shall have the right to
cross-examine the said witness and in this way, permission to produce
the said witness will not prejudice her rights.
14. As regards deposit of rent in Court, it is noted that when
relationship of landlord and tenant has been denied by tenant, he
cannot be burdened with deposit of rent, especially in the present case
when respondents No. 1 to 3 have already vacated the premises and
they have taken a specific stance that they are not tenants of present
petitioner rather they took the suit property on rent from the caretaker
namely Abbas, in whose favour general power of attorney was
executed by petitioner which was later on got cancelled by her.
15. The afore-referred question has been comprehensively dealt with
by the Supreme Court of Pakistan in judgment reported as Mian Umar
Ikram-ul-Haque v. Dr. Shahida Hasnain and another (PLJ 2017 SC 1)
in the following terms:
“Therefore, it follows that where the relationship of landlord
and tenant is denied, the Rent Tribunal would lack
jurisdiction, on account of the doctrine of jurisdictional fact, to
pass an order for payment of rent due under section 24 of the
Act until and unless the Tribunal positively ascertains the
relationship of tenancy and establishes that the respondent to
the eviction application is in fact a ‘tenant’ in terms of section
2(1) of the Act.”
16. The above extract makes it indubitably clear that where
relationship of landlord and tenant is denied by the tenant, he cannot be
compelled to deposit the rent till the relationship is established . It is,
however, observed that at the definitive end of the proceedings, if
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petitioner succeeds to establish the relationship of landlord and tenant
with respondents No.1 and 3, rent would be recoverable through an
execution petition.
17. So far as judgments cited by learned counsel for the petitioner
are concerned, the same having different facts and circumstances are
not applicable to the case in hand, therefore, not helpful for the
petitioner.
18. Since the learned counsel for the petitioner has not been able to
highlight any jurisdictional defect, illegality, legal infirmity or
perversity in the impugned order and judgment, therefore, no ground
for interference is made out, as a sequel to which, this constitutional
petition fails and the same is dismissed.
(MALIK WAQAR HAIDER AWAN)
JUDGE
Signed
09.05.2025
Abis Ali
APPROVED FOR REPORTING
JUDGE
