P L D 2009 Lahore 469 (PLP)

MAULVI ANWARUL HAQ, J.

On 24-3-2008 the respondent No. 1 filed, an application for the ejectment of the petition from a house located in Rawalpindi urban area. According to the contents, the respondent let out the upper storey of the house to the petitioner in July, 2007 subject to payment of Rs.10,000 per month as rent. The ejectment was sought on the ground of default in payment of rent at the said rate since November, 2007. Bona fide personal requirement was also pressed. The application came up before a learned Rent Tribunal on 25-3 -2008 when he directed that summons be issued under registered cover A.D. for 8-4-2008. On this date the Presiding Officer was absent. The case was taken up on 26-4-2008 when it was noted that there is report that the petitioner had hidden himself and affixation has been made. Publication of notice in a newspaper was ordered for 12-5-2008. On 31-5-2008 it was noted that the substituted service has been effected. The petitioner was proceeded against ex parte. On 4-7-2008 when the case was fixed for recording ex parte evidence the petitioner filed an application for setting aside of' the ex parte proceedings. These were set aside with consent on payment of costs vide order dated 11-7-2008 and the case was adjourned to 14-7-2008 for payment of costs and filing of application for leave to defend. On 14-7-2008 the Presiding Officer was absent and the case was adjourned to 22-7-2008. On this date it was noted that application for leave to defend has been filed. The case was adjourned to 2-9-2008 for arguments. On this date an application was filed for seeking amendment inasmuch as to mention that the document is a petition for leave to contest. A reply was filed. Some arguments were heard on 20-9-2008. It was objected by the petitioner that the ejectment application is not accompanied by the affidavit of the respondent. Ultimately the matter was heard on 23-10-2008. The application flied by the petitioner was dismissed stating that he has not filed the same within 10 days of appearance while the respondent was permitted to file her affidavit and those of her witnesses and the case was adjourned to 4-11-2008. I am told that the matter is still pending. And appeal filed by the petitioner has been dismissed by a learned ADJ, Rawalpindi, on 12-2-2009.

2. Learned counsel for the petitioner contends that no notice in terms of section 21(1) of the Punjab Rented Premises Ordinance, 2007, was issued to the petitioner and further that the written statement was filed when the copies were delivered. According to him, the ejectment application itself was not complete in terms of section 19 of the said Ordinance 2007. According to him, such a harsh order could not have been passed against the petitioner only because it was not mentioned in the said document that it is an application for leave to contest particularly when upon grant of leave the same document was to be considered as a written statement. Learned counsel for respondent No. 1, on the other hand, vehemently urges that notwithstanding the said legal defects, the fact remains that the petitioner had put in appearance on 4-7-2008 and was bound to file application for leave to consent within 10 days thereof whereas he filed application on 22-7-2008.

3. I have gone through the copies of the records. The details of the proceedings have already been stated above. I have checked up the notice issued to the petitioner as also the one published in the newspaper. It is not at all in accordance with the notice prescribed in section 21(1) read with Schedule to the said Ordinance. The said prescribed notice more or less is in accordance with the Form-B-IV in which an notice is issued by a Court in suits filed under Order XXXVII C.P.C. Apart from this the notice has to be issued through Process Server, registered post A.D. and Courier Service. It is an admitted fact that no notice was issued under registered cover A.D. and through Courier Service. Further mandatory requirement is that the notice has to he accompanied by the copy of the application and the document annexed with the application. These documents are mentioned in section 19(3) and (4) of the said Ordinance. These include the affidavit of the landlord and affidavits of not more than two witnesses. It is a matter of record that these affidavits were filed long after passing of the impugned order by the learned Rent Tribunal i.e. non-suiting the petition. To my mind in order to invoke the penal provisions, it was absolutely necessary for the learned Rent Tribunal to have issued a notice in accordance with section 21(1) read with Schedule to the said Ordinance and further such a notice could have been issued only after examining the petition and satisfaction that it is accompanied by the requisite documents as mentioned in section 19 of the said Ordinance. This has, of course not been done. This being so, there is no question of causing of an appearance by the petitioner in Court so as to make 10 days time for filing of the application for leave to contest running. Even if it be assumed that the application filed by respondent No.3 was in accordance with the said statutory provisions and that notice in accordance with the statutory provisions had been sent, in the circumstances of this case where notices under registered cover A.D. and Courier Service were not issued at all and the petitioner was proceeded against ex parte on the basis of a report by the Process Server, the filing of the said document/reply by the petitioner on 22-7-2008 cannot be at all said to be beyond the statutory period. The impugned orders are, therefore, without lawful authority and void and are declared as such.

4. Office is directed to circulate a copy of this judgment to all the learned District Judges in the Province who will direct the Rent Tribunals to deal with the cases filed under the Punjab Rented Premises Ordinance, 2007, with due care and caution. Upon presentation of an application first of all it should be ensured that all the documents particularly the affidavits of the landlord and the witnesses are appended with the ejectment application. After being so satisfied or after getting the said provisions complied with notices shall be issued to the respondent in the case in the form provided in Schedule read with section 21(1) of the said Ordinance, 2007, under registered cover A.D., through Courier Service and through the process server of the Court and after ensuring that the service has been effected through the said process to proceed further in the matter in accordance with law and further to ensure that where the said statutory provisions stand complied with the application is filed by the tenant/respondent for leave to contest in the manner prescribed.

5. The writ petition is accordingly allowed. The said reply filed by the petitioner on 22-6-2008 shall be considered as an application for leave to contest the petitioner and it will be decided by the learned Rent Tribunal after hearing both the parties. No orders as to costs. M.B.A./Y-6/L????????????????????????????????????????????????????????????????????????????????????? Order accordingly.