2017 PLP 131 (CLCN)

MIRZA VIQAS RAUF, J.

The petitioner namely Dr. Sajjad Nazir by way of this constitutional petition assails the vires of order dated 25th of October, 2016, whereby an application filed by respondents Nos.2 and 3 (hereinafter referred as "respondents") for submission of affidavits in evidence, was allowed.

2. Precisely the facts necessary for adjudication of instant petition are that "respondents" filed an ejectment petition under Section 15 of The Punjab Rented Premises Act, 2009 (hereinafter referred as "The Act, 2009") for eviction of the petitioner. The ejectment petition was resisted by the petitioner by filing an application for leave to defend, the same was accepted whereafter necessary issues were framed and the case was fixed for evidence of "respondents". The "respondents" moved an application for submission of their affidavits in evidence which was contested by the petitioner, however, same was allowed vide order dated 25th of October, 2016, hence this petition.

3. Learned counsel for the petitioner, while referring section 19 of "The Act, 2009" submitted that in terms of subsection (4), the "respondents", being the landlords were obliged to submit their affidavits along with the eviction application. He added that non-submission of affidavits precluded the "respondents" to move an application at a belated stage. Learned counsel contended that impugned order is not tenable under the law.

4. After having heard learned counsel for the petitioner at some length, I have examined the available record in the light thereof.

5. The ejectment application was filed by "respondents" on 05th of May, 2005 which was resisted by the petitioner, by filing an application for leave to contest in terms of section 22 of "The Act, 2009". The application was initially partly allowed vide order dated 04th of January, 2016 by the Special Judge Rent, Lahore, however, the petitioner feeling aggrieved from the said order filed an appeal under section 28 of "The Act, 2009" before the learned Additional District Judge, Lahore. The appeal was accepted vide order dated 15th of June, 2016 with the following observations:- "

6. In view of the above facts, this appeal is accepted and impugned order is set aside while accepting leave to appear and defend in toto in the subject ejectment petition. Learned Trial Court is directed to decide vide single order whole ejectment petition after recording of evidence of both parties. Copy of this order be supplied to the learned Trial Court for compliance. No order as to costs." It is evident from the record that the "respondents" moved an application on 18th of January, 2016 immediately after framing of issues, seeking permission to submit affidavits in the evidence. The application was though contested by the petitioner, however, same was allowed by way of impugned order.

6. There is no cavil that in terms of subsection (4) of section 19 of "The Act, 2009", the landlord has to submit his own affidavit as well as affidavits of his witnesses along with the eviction application but it is not inflexible rule rather it is rule of procedure to streamline the proceedings before the tribunal in order to avoid unnecessary delay.

7. So far contention of learned counsel for the petitioner that word "shall" used in the said provision makes the same mandatory, suffice to observe that mere use of word "shall" in a provision does not make the same mandatory in all eventualities. The litmus test to determine the mandatory nature of a provision is outlined by the Hon'ble Supreme Court of Pakistan in the case of "Ghulam Hassan v. Jamshaid Ali and others" (2001 SCMR 1001) and held as under:- "

13. It is an established principle of law that where the Legislature has provided a penalty/consequences for the non-compliance, the said provision would be mandatory in nature and where such consequences are not provided it would be termed as directory. Reference in this behalf is made to the case of Maulana Nur-ul-Haq v. Ibrahim Khalili (2000 SCMR 1305) where it was held as under:-- "There is another aspect of the matter to which it is necessary to refer to section 32 of the Act appears to be mandatory, in view of the expression 'shall' used therein, but in fact is directory for want of a penal clause. No doubt there exists no faultless acid test or a universal rule for determining whether a provision of law is mandatory or directory and such determination by and large depends upon the intention of Legislature and the language in which the provision is couched but it is by now firmly settled that where the consequence of failure to comply with the provision is not mentioned the provision is directory and where the consequence is expressly mentioned the provision is mandatory. It was held in Niaz Muhammad Khan v. Mian Fazal Raqeeb (PLD 1974 SC 134) that as a general rule a statute is understood to be directory when it contains matters merely of direction but it is mandatory when those directions are followed by an express provision that in default of following them the facts shall be null and void. In Major Shujat Ali v. Mst. Surrya Begum (PLD 1978 SC(AJ&K) 118) it was held that in the absence of a penalty for failure to follow the prescribed procedure the provisions are to be taken to be directory and not mandatory. The provisions of section 32 of the Act being directory cannot in manner override or dilute the provisions of section 31 of the Act which are mandatory by all standards." Reference is also made to the case of Mafizullah v. Manai Ullah and others (PLD 1963 Dacca 318) wherein it was observed as under:-- "

9. When a statute is passed for the purpose of enabling something to be done, it may be either a mandatory enactment, or a directory one, the difference being that a mandatory enactment must be obeyed or fulfilled exactly, but is sufficient, if a directory enactment be obeyed or fulfilled substantially. If a mandatory enactment is not strictly complied with, the thing done shall be invalid. On the other hand, if an enactment is merely directory, it is immaterial, so far as relates to the validity of the thing done, whether the provisions of that enactment are strictly complied with or not. (See Craies on Statute Law, Fifth Edition, pages 240-241). There is no general rule as to when an enactment is to be considered mandatory and when merely directory and it is the duty of the Court to ascertain the real intention of the Legislature having regard to the whole scope and purposes of the enactment to be construed." The same view was further reiterated by the Hon'ble apex Court in the matter of: Human Rights Cases Nos. 4668 of 2006, 1111 of 2007 and 15283-G of 2010 (PLD 2010 Supreme Court 759).

8. It is thus clearly manifest from the above that unless some consequences of non-compliance of the provision are provided in the statute, the same cannot be termed as mandatory despite use of word "shall" in the same. Even the words "may" and "shall" are also interchangeable.

9. The above mentioned view is also fortified by the judgment of this Court in the case of "Ehsan Abbas v. Khush Abbas and others" (PLD 2011 Lahore 311).

10. Record is clearly indicative of the fact that application was moved by the "respondents" immediately after framing of issues and same does not cause any prejudice to the petitioner. The object of inserting any provision of law in the statute is always to promote the ends of justice and no such provision can be used to stifle the rights of the parties on the basis of technicalities. I am thus of the considered opinion that learned Rent Tribunal has rightly allowed the application filed by "respondents" and there is no illegality or perversity in the impugned order, warranting interference by this Court in exercise of constitutional jurisdiction. The instant petition is thus without any merits, resultantly same is dismissed in limine. MQ/S-27/L Petition dismissed.