2009 PLP 1334 (CLC)

MIAN SAQIB NISAR, J.

The petitioner brought an eviction petition against the respondent No.1 (the respondent) under the Punjab Rented Premises Ordinance, 2007 (hereinafter be referred the Ordinance), in which the latter appeared before the Rent Tribunal on 26-2-2008; the case was adjourned to 8-3-2008, when leave application was filed by the respondent, which was beyond the period of 10 days as required under section 22(2) of the Ordinance, thus confronted with the above, the respondent moved an application on 28-4-2008 seeking condonation of the delay on the ground that "there is no fault on petitioner's part and even on the part of the petitioner's counsel, it was just bona fide mistake of fact which has caused no prejudice on other party as the petition was fixed for 8-3-2008 and no, development/proceedings could be made before the date in any case hence it is just a technicality nothing more". It is also stated that "the apex Court encourage the disposal of litigation on merits and not on mere technicalities". Be that at it may, the learned Tribunal vide order dated 21-7-2008, by rejecting the application for leave to appear and defend and the other seeking condonation of delay, passed the eviction order and directed the respondent to vacate and hand over the vacant possession of the demised premises to the petitioner within a period of two months. However, strangely the Tribunal still framed the two issues by stating that "since the parties are at variance on the issue of period of default and an amount of arrears of rent, therefore, out of the divergent leadings of the parties, following issues are hereby framed:

(1) Whether the respondent is a wilful defaulter in payment of rent, if so, at what rate and for what period? OPA (2) Relief. The case was adjourned for the evidence of the petitioner on 17-9-2008 on the above issues. Anyhow, the order of eviction was challenged by the respondent and the appellate forum has concluded that as according to the provisions of section 21(2) of the Ordinance, the notice shall be accompanied by the copy of application and the documents annexed with the application, thus "it was the duty of the Tribunal to give the copy of all the documents annexed with the ejectment petition and detail of them must be incorporated in the order sheet. But the order sheet of the learned trial Court is silent in this regard. When the requirement under section 21(2) of the Ordinance has not been complied with, so the question of filing of leave to defend the petition under section 22 of the Ordinance arises subsequently. In these circumstances in this case the requirement of section 21(l&2) of the Ordinance does not seem to have been fulfilled by the learned Rent Tribunal, therefore, impugned order is not sustainable".

2. Learned counsel for the petitioner contends that as required by schedule attached to the Ordinance, a copy of the eviction petition and the documents were duly annexed to the notice served upon the respondent and this is so mentioned in the notice; that there has never been any objection by the respondent that notice issued/served was missing in copy/Annexures; it has never been the case of the respondent before the Rent Tribunal when the application for condonation of delay was made; in the memorandum of appeal, no such ground has been taken, therefore, the appellate forum has transgressed beyond even the case of the respondent to grant him the relief, which is not available.

3. Heard. There is no grouse of the respondent that the provisions of section 21(2) of the Ordinance, were not complied with by the petitioner and the notice received by him was lacking qua the eviction application and/or the documents annexed thereto. It is not the requirement of law that if the respondent of a case has not raised any objection in this regard, the Rent Tribunal shall necessarily specify in the order that the copies have been delivered. To the contrary, the respondent has set out the plea of misunderstanding and sought refuge under the stance that a litigant should not be knocked out on technical grounds. Therefore, the impugned order, which is not even in consonance with the case of respondent is absolutely illegal and unlawful.

4. Anyhow, it requires to be examined if the time for filing the leave application could be condoned, suffice it to say that the period of ten days has been prescribed by section 22(2) of the Ordinance itself, with the consequence that in case the leave is not filed within the stipulated period, the Tribunal shall pass the final order (as per section 22(6) of the Ordinance). This has made the noted provisions as mandatory (as consequences of default are clearly provided), resultantly, the respondent was liable to be straightaway ejected in terms of the above quoted law.

5. The argument of the learned counsel for the respondent that on account of the reasons given in the application for condonation of delay, coupled with the condonation sought on the equitable ground as argued in the Court, the lapse should be over looked, suffice it to say that the equity cannot override the law, it has not been shown if the condonation of the delay could be granted to the respondent under any provisions of the Ordinance, 2007. It is also not established if section 5 of the Limitation Act 1908 is applicable to the Ordinance and could be availed by the respondent.

6. The other aspect of the matter, which has been noticed by this Court with anxiety that the Tribunal after passing the final order of eviction, has framed the issues and is proceeding to record the evidence of the parties. The counsel for the petitioner has not been able to satisfy as to under what provision of law, it (the Tribunal) could do so, as it was rendered functus officio and could not proceed any further after the final eviction order passed by it. Therefore, the remaining part of the order of the learned Rent Tribunal vis-a-viz the framing of the issues is also set aside. This petition is accordingly allowed and the impugned order of learned Additional District Judge, dated 20-12-2008 is set aside as also that of the Tribunal as mentioned above. M.B.A./F-47/L Petition allowed.