2012 PLP 895 (CLC)

SYED MUHAMMAD KAZIM RAZA SHAMSI, J.

Through this constitutional petition the petitioner-landlord has assailed order dated 5-7-2011 passed by Rana Khalid Mehmood Khan, learned Special Judge (Rent), Lahore whereby he allowed the petition of the tenant seeking leave to contest the ejectment petition filed by the landlord against him.

2. The main grievance of the petitioner is that the application filed under section 22 of the Punjab Rented Premises Act, 2009 was beyond the period of 10 days as prescribed therein as such further proceedings in the case could not be taken by the learned Rent Tribunal. The base of this contention is that the Court fixed the case for the appearance of the tenant as 3-5-2011 but the tenant-respondent had entered into proceedings on 11-4-2011 by filing an application for file inspection along with 'Wakalatnama' of Mr. Naseem Ahmad Khan, Advocate. Therefore, in the view of the petitioner the limitation of 10 days for filing the application commenced from the date when the respondent had taken steps towards further proceedings of the case.

3. Learned counsel submitted that in the notice received by him it was specifically mentioned that next date fixed in the case was 3-5-2011 and the respondent was directed to file application within 10 days from the date so fixed as such the application filed on 11-5-2011 was well within time.

4. The parties heard at length and contentions of the learned counsel for the parties have been examined in the light of section 22 of the Act ibid. For the purpose of discussion as to what amounts "appearance' used in subsection (2) of section 22 of the Act, it is imperative to reproduce subsection (2) hereunder:

"(2) Subject to this Act, a respondent shall file an application for leave to contest within 10 days of his first `appearance' in the Rent Tribunal." The plain reading of the subsection shows that the leave application is to be filed within 10 days by respondent from the first appearance in the Court. The plain dictionary meaning of word "appearance" as provided in Concise Oxford English Dictionary 10th Edition are:

(a) the way that some one or something appears; (b) an act of performing in a public event; and (c) an act of arriving or becoming visible." These meanings of the word "appearance" explained in the dictionary provides that "something should be visible". The visibility of a party is only possible when it is physically present at a place where it should be or required to be present. So from the word "appearance" used in subsection (2) of section 22 (ibid) it can be said that the physical first appearance of a party before the Court is essential wherefrom time of 10 days would start. This intention of the law is further evident from the notice issued under the said enactment which provides that leave application is to be filed within 10 days from the date mentioned in the notice. Law governing the matter does not acknowledge any step taken by a party to join the proceedings prior to the date fixed in the notice, at least this intention of law is evident form the plain reading of subsection (2) of section 22 (ibid). In the instant case although the respondent had joined the proceedings with the learned Rent Tribunal by filing an application seeking permission to inspect the case file coupled with 'Wakalatnarna' of the learned counsel but since the law does not provide specifically that the limitation of 10 days can be started from the date of joining the proceedings as such the contention of the learned counsel for the petitioner is untenable. It is principle of law that when an act is to be performed as provided by the law then it should be performed in such a manner. Had the intention of law been the acknowledging the proceedings taken by a person prior to appearance in the Court, it may have mentioned the same in the relevant provision in so many words like the provision of section 34 of the Arbitration Act, 1940. It is particularly noticed in the said provision that a party at any time before filing the written statement or taking any other steps in the proceedings may apply to the judicial authority for staying the proceedings. The purpose of mentioning of this provision of Arbitration Act is that whenever a law wants to protect the other proceedings in a case it explicitly enacts the same in the provisions of the enactment governing the matter. This is not case in the instant proceedings initiated under the Act, 2009 as such the application and 'Wakalatnama' filed by the respondent prior to the date fixed in the case cannot be taken into consideration for fixing the time filing the petition under section 22 of the Act (ibid). It is also golden principle that law should be liberally and beneficially construed where two interpretations are possible. In this eventuality learned counsel for the petitioner is misconceived when he wanted to start the limitation of 10 days from the date on which the respondent had filed an application before the Court seeking permission to inspect the case file.

5. In view of the above, this petition having no merits is dismissed. H.B.T./S-158/L Petition dismissed.