2010 PLP 1590 (CLC)

HAFIZ ABDUL REHMAN ANSARI, J.

Through this constitutional petition, petitioner seeks setting aside of order dated 7-12-2009 passed by learned Rent Tribunal, Lodhran declaring it illegal, against law and fact. . Brief facts of the case are that petitioner on 13-10-2009 being landlord filed ejectment petition against respondent No.3, Abdul Ghaffar son of Abdul Karim for his eviction from the rented property. This petition was filed under section 15 of Punjab Rented Premises Ordinance 2007. The counsel for respondent No.3 filed his power of attorney on 4-11-2009 and the learned Presiding Officer/Rent Controller adjourned the ejectment petition for filing of written reply on 12-11-2009. On 12-11-2009 respondent No.3 filed the reply instead of petition for leave to defend as required under the provisions of Punjab Rented Premises Ordinance, 2007. The case was adjourned for arguments on 23-11-2009. On 23-11-2009 learned counsel for the petitioner raised objection that respondent No.3 did not file petition for leave to defend according to the mandatory provisions of law i.e. section 22(11) of the Punjab Rented Premises Ordinance, 2007. The case was adjourned to 25-11-2009. On 25-11-2009 another counsel filed his power of attorney and the case was adjourned for arguments for 7-12-2009. On 7-12-2009 learned Rent Tribunal passed the following order:--

3. Petitioner being aggrieved of the order dated 7-12-2009 filed an appeal against the said order before the learned District Judge, Lodhran who entrusted the same to Additional District Judge, Lodhran; that on 2-1-2010 Additional District Judge dismissed the petitioner's appeal with the order that there is no appeal against interim order under the provisions of Punjab Rented Premises Ordinance, 2007. After failure before the District Judge, Lodhran in appeal now the petitioner has assailed the order dated 7-12-2009 passed by the learned Rent Tribunal in this writ petition which the petitioner assailed in the appeal before the District Judge, Lodhran.

4. Learned counsel for the petitioner contends that it was mandatory to file the petition for leave to contest within 10 days from the date of appearance of respondents before the Rent Tribunal; respondent filed power of attorney on 4-11-2009 since 4-11-2009 within ten days. Respondent was bound under the provisions of law section 22(ii) of Punjab Rented Premises Ordinance, 2007 to file the petition for leave to defend as respondent did not file the same within the statutory period of ten days and the same was filed on 17-12-2009 which was time-barred; learned Rent Tribunal should have decreed the ejectment petition of the petitioner; further submits that on account of mistake of the court the petitioner could not suffer it was the mistake of the court that when respondent filed power of attorney on 4-11-2009, court should have ordered respondent to file petition for leave to contest instead of asking the respondent to file written statement. Even if there was no specific order by the learned Rent Controller even then respondent was duty bound under the law to file petition for leave to contest himself within the statutory period under the Punjab Rented Premises Ordinance, 2007. The whole controversy between the parties revolves on this sole point; further submits that order dated 7-12-2009 is illegal, void and contrary to law should be struck down and the petition for ejectment should be allowed; further submits that Rent Tribunal extended time for leave to defend to respondent No.3 which is without jurisdiction, the Rent Tribunal could not extend the time for filing the petition for leave to contest; further submits that respondents establish their indolence had filed the petition for leave to contest within prescribed period of 10 days; Law favours the vigilant nor the indolent; further submits that if any act is prescribed to be done in a particular manner that must be done in that manner and not otherwise, ;n the instant case same is done in the manner not provided in the law which is illegal and void; learned counsel places reliance on PLD 1995 Lah. 385; 2006 YLR 1516; 1995 CLC 781 and 2009 CLC 1334.

5. On the other hand, learned counsel for respondent vehemently supported the order dated 7-12-2009 passed by the Rent Tribunal in ejectment petition; further submits that order dated 7-12-2009 is of interim in nature in rent matters interim order cannot be assailed; further submits that respondent in compliance of order dated 4-11-2009 filed written statement on 12-11-2009 in compliance of order passed by the learned Rent Tribunal; further submits that petitioner filed an appeal before the learned District Judge, Lodhran when Additional District Judge, Lodhran dismissed the appeal of the petitioner after failure from there. Now petitioner is assailing order dated 7-12-2009 only and it is clear from prayer of the petition that petitioner is not assailing the order dated 2-1-2010 passed by Additional District Judge, Lodhran on the appeal of the petitioner against order dated 7-12-2009; further submits that order dated 7-12-2009 was merged in the order dated 2-1-2010 which the petitioner has not assailed and the same has got finality appeal of the petitioner is dismissed by the learned Additional District Judge now trial court should decide the ejectment petition on merits. The petitioner wants to knock out the respondent on technical grounds. 'Respondent has good case on merit. Learned counsel for respondent places reliance on 1995 SCMR 1700, PLD 2009 Lahore 469, PLD 2006 Lahore 649, 1996 SCMR 1165, 1994 SCMR 65, 2003 YLR 1722 (C), according to him in all these cases it is held, writ petition is not maintainable against interim orders in rent matters.

6. I have heard the learned counsel for the parties and perused the record.

7. It is admitted fact that petitioner assailed order dated 7-12-2009 before the learned District Judge which was assailed in the appeal filed against order dated 7-12-2009. Learned Additional District Judge dismissed the appeal of the petitioner vide order dated 2-1-2010. Petitioner has badly failed to assail the order passed on his appeal dated 2-1-2010 which has got finality. Although petitioner has mentioned about this order in his writ petition but he has not prayed for setting aside the same. Respondent has filed written reply in compliance of order of the court on 12-11-2009 before the learned Rent Tribunal as he has entered appearance on 4-11-2009. This written reply was within 10 days the same should be converted into petition for leave to contest as it was within 10 days of the appearance of the respondents before the Rent Tribunal. The cases cited by the learned counsel for the petitioner are on the point that interim order passed by Rent Tribunal can be assailed in writ jurisdiction on this point of law there are citations on both sides, in many cases it is held that interim order passed by Rent Tribunal can be assailed in writ jurisdiction while citations are otherwise also. As the petitioner liked to file an appeal against order dated 7-12-2009 before the learned District Judge and the appeal was dismissed. It was appropriate for the petitioner to assail the order passed on his appeal by the learned Additional District Judge, Lodhran and he has failed to assail the same. Order passed on 2-1-2010 has attained the finality as the same is not being assailed unless and until petitioner succeeds in setting aside the order dated 2-1-2010 passed on his appeal by learned Additional District Judge, Lodhran. The respondent appeared before learned Rent Tribunal on 4-11-2009, he was ordered to file written statement on 12-11-2009 which order was complied with. Learned Tribunal should treat this reply filed on 12-11-2009 as an application for leave to contest and decide it first, proceeding further in the case. Further Courts always favour to adjudicate the lis on merits rather than on technicalities. Keeping in view the peculiar circumstances of this case it is in the interest of justice that ejectment petition is decided on merits. Further, I will place reliance on reported cases Syed Saghir Ahmad Naqvi v. Province of Sindh through Chief Secretary, S&GAD, Karachi and another 1996 SCMR 1165 and Syed Qamar Ahmad and another v. Anjum Zafar and others 1994 SCMR 65, wherein it is observed that against interlocutory orders passed in rent proceedings, writ petition is not maintainable Order dated 7-12-2009, is interim order in nature. It cannot be assailed in writ jurisdiction in the light of dictum laid down in above referred two cases.

8. Resultantly, this writ petition is dismissed with no order as to cost. M.U.Y./M-362/L Petition dismissed.