P L D 2011 Lahore 42 (PLP)

SH. AHMAD FAROOQ, J.-Through the instant petition under Article, 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioner has challenged the vires of order dated 1-12-2009 and 8-3-2010, passed by the learned Civil Judge/Rent Controller, Kharian, and the learned Additional District Judge, Kharian, respectively, whereby the petitioner has been evicted from the Rented Premises.

2. The facts, necessary for the adjudication of lis in hand, are that on 2-1-2009, an Ejectment Petition was filed by present respondents Nos. 1 and 2 seeking the eviction of the petitioner from a portion of the building, known as "Gulf Hotel", G.T. Road, Kharian, District Gujrat, on the grounds of expiry of lease period and requirement of the property in dispute for their personal use, under Punjab Rented Premises Ordinance, 2007 (hereinafter to be referred as "Ordinance"). The said Ejectment Petition was entertained by the learned Special Judge (Rent) Kharian, who issued normal notices for appearance of the respondent. The respondent/present petitioner, when appeared on 11-3-2009, was directed to file written reply to the Ejectment Petition on 11-4-2009. The learned trial Court also directed the present petitioner to pay tentative rent during the pendency of the Ejectment Petition and also framed issues. After recording of the evidence, the learned Trial Judge allowed the Ejectment Petition, vide order dated 1-12-2009, which was upheld by the learned Additional District Judge, Kharian, vide judgment dated 8-3-2010.

3. It is contended by the learned counsel for the petitioner that the Ejectment Petition was filed amongst others on the ground of personal need of the rented premises by the petitioners, which was not provided in the Ordinance ibid. He maintained that learned Special Judge (Rent), Kharian took cognizance of a petition filed on a ground alien to the rent law in vogue at the relevant time, which was unwarranted and illegal. Further submitted that learned Special Judge (Rent), Kharian was under a duty to issue notices in the manner, prescribed by section 21(1) of the Ordinance, which he neither adhered to nor the petitioner was directed to submit leave to contest, as required by law.

4. Learned counsel for respondents Nos.1 and 2 contented that the impugned orders have been rightly passed, as litigation between the parties should not be allowed to be determined merely on the basis of technicalities, which needed to be avoided as far as possible, wherever the merits of the case otherwise gave a clear picture as to the rights of the parties therein and relied upon the judgments reported as 2007 YLR 2083 and 2003 SCMR 29.

5. Arguments heard. Record perused.

6. Rent law in the Province of the Punjab was completely revised by the legislature and new concepts have been introduced through the Punjab Rented Premises Ordinance, which was promulgated on 16 November, 2007 and was later on replaced by the Punjab Rented .Premises Act, 2009, which came into force on 17 November, 2009. Section 4 of the Ordinance as well as Act ibid clearly contemplates that "The provisions of this. Act shall have effect notwithstanding anything contained in any other law for the time being in force" (Emphasis added).

7. A careful perusal of record indicate that the entire proceeding, conducted by the learned Special Judge (Rent), Kharian, has been carried on under the repealed West Pakistan Rent Restriction Ordinance, 1959, which provided for eviction of a tenant on ground of personal need. Section 15 of the Ordinance is the only provision on the basis of which, eviction can be sought from the learned Special Judge (Rent). Ejectment Petition in the instant case has been filed under the said section 15 of the Ordinance, which does not provide for eviction on ground of personal need of the landlord. Similarly, the learned Special Judge (Rent) has also not issued notices in the form, prescribed by the Ordinance. Perusal of section 21(1) of Punjab Rent Premises Ordinance, 2007 clearly contemplates that it is mandatory requirement that the notice should not only be in prescribed form but also accompanied by the copy of application and documents annexed' with the- application enabling the respondent in an eviction petition to file leave to contest, within 10 days. Filling of an application, under section 22 of the Ordinance, seeking leave to contest, is always subject to the condition that the method, provided for effecting service upon the respondent in ejectment petition, is complied with and in a case where the said procedure was not adopted, the tenant/respondent could not be penalized. It is also worth consideration that the affidavits of the witnesses were not submitted along with the eviction petition, as required under section 19(4) of the Ordinance. This Court has already held in the case of Younas Siddique v. Mst. Tahira Jabeen (PLD 2009 Lahore 469) that where mandatory requirements of the Ordinance are not complied with then such orders are without lawful authority, therefore, void.

8. The case law, cited by the learned counsel for respondents Nos.1 and 2, is not applicable to the lis in hand, as deviating from the explicit procedure of an enacted law is not a mere technicality but negation of the will of the legislature embodied under the rent law in vogue. One should be mindful of the fact that a statute is a formal expression in writing of the will of the legislative organ of the state. Similarly, when the law requires a particular thing to be done in a particular manner, the same must be done accordingly, and, if prescribed procedure is not followed, it is assumed that the same has not been legally done.

9. The crux of the above discussion and observations is that the present respondents Nos. 1 and 2 neither filed the eviction petition against the tenant on the grounds available in section 15 nor attached the affidavits of the witnesses along with eviction petition, as envisaged in section 19(4) of the Punjab Rented Premises Ordinance, 2007. Similarly, the learned Rent Tribunal did conduct the proceedings, as envisaged in sections 21 and 22 of the Ordinance ibid. Consequently, it is declared that the impugned orders, dated 1-12-2009 and 8-3-2010, have been passed in complete derogation of the explicit provisions of the Punjab Rented Premises Ordinance, 2007, and as such, the same arc declared to be illegal and set aside. The respondents Nos. 1 and 2 may file a fresh application, if they desire, on the grounds. available under section 15 of the Punjab Rented Premises Act, 2009, and the same shall be decided by the learned Special Judge Rent, Kharian in accordance with the provisions of the Act ibid, as expeditiously as possible. The instant petition is accordingly accepted. M.H./I-58/L Case remanded.