2010 PLP 1839 (CLC)

SH. AHMAD FAROOQ, J.

Through the instant petition, the petitioner has challenged the legality of order dated 16-3-2010, whereby the learned Additional District Judge, Lahore, while accepting the appeal of respondent No.3, set aside the order of the learned Special Judge (Rent), Lahore, dated 27-1-2010.

2. Precise facts necessary for the proper adjudication of the lis in hand are that respondent No.3/Abdul Ghaffar filed an ejectment petition against the present petitioner/Muhammad Jaffar before the Special Judge (Rent), Lahore, seeking his eviction from a shop, which the present petitioner claimed to have purchased through a registered sale deed dated 6-4-1989. On 11-5-2009, an ex parte eviction order was passed, against the present petitioner, and in execution of the same, respondent No.3 succeeded in taking over possession of the shop in dispute. Aggrieved by the order dated 11-5-2009, the petitioner initially filed an application under Order IX, rule 13, C.P.C. before the learned Special Judge (Rent), Lahore, which was later on amended and a petition under section 21(4) of the Punjab Rented Premises Ordinance, 2007 was filed, with a prayer to set aside the ex parte order dated 11-5-2009. The said application vide order dated 27-1-2010, was accepted by the learned Special Judge (Rent), Lahore, and respondent No.3 was ordered to hand over the vacant possession of the shop to the petitioner, within a period of fifteen days. Against the order dated 27-1-2010, respondent No.3 went in appeal, which, vide order dated 16-3-2010, was accepted and the case was remanded to the learned trial Court with a direction to decide the application under section 21(4) of the Punjab Rented Premises Ordinance, 2007, afresh after framing an issue on the crucial point, and recording evidence of both the parties. Being dissatisfied with the above said order of the learned Additional District Judge, Lahore, dated 16-3-2010, the petitioner has invoked the constitutional jurisdiction of this Court by filing the instant writ petition.

3. The learned counsel for the petitioner submitted that the ex parte order dated 11-5-2009, was rightly set-aside by the learned Special Judge (Rent), Lahore, vide order dated 27-1-2010, as the due service of the notices etc. upon petitioner could not be established. He further submitted that respondent No.3 obtained the ex parte ejectment order dated 11-5-2009, through misrepresentation and fraud. He maintained that the learned Special Judge (Rent), Lahore also appointed a local commission, prior to the passing of the order dated 27-1-2010, who supported the version of the petitioner. He argued that there is no need to frame an issue and record evidence of the parties for deciding his application for setting aside the ex parte order dated 11-5-2009, as the learned Special Judge (Rent), Lahore, has held that the service of the present petitioner was not effected in accordance with law. He maintained that under section 21(5) of the Punjab Rented Premises Ordinance, 2007, the Rent Tribunal was competent to set-aside the ex parte order on such terms as it may deem fit, if there was sufficient cause for the non-appearance of the respondent. Lastly, he argued that the impugned order dated 16-3-2010 would not only delay the proceedings unnecessarily but would also give rise to multiplicity of proceedings as he has been deprived of the possession of the shop in dispute by respondent No.3 in a fraudulent manner.

4. Conversely, the learned counsel for respondent No.3 opposed the instant petition, on the ground that the learned Special Judge (Rent), Lahore had no power to -order the restoration of possession under section 21(4) of the Punjab Rented Premises Act, 2009. He further submitted that there was no sufficient cause for non-appearance of the present petitioner and, as such, order passed by the learned Special Judge (Rent), Lahore, on 27-1-2010, was rightly set aside by the learned Additional District Judge, Lahore, through order dated 16-3-2010. He asserted that the present petitioner is claiming ownership of the property in dispute and, as such, he should approach the civil court for declaration of his title instead of seeking leave to contest the eviction petition, filed by respondent No.3.

5. Arguments heard. Record perused.

6. Admittedly, present respondent No.3/Abdul Ghaffar, filed an eviction petition against Muhammad Jaffer/present petitioner, showing him as a tenant, under section 15 of the Punjab Rented Premises Ordinance, 2007 wherein ex parte proceedings were ordered against the present petitioner and eviction order was passed on 11-5-2009. The present petitioner was evicted from the shop in dispute in execution of the ex parte ejectment order dated 11-5-2009. Thereafter, Muhammad Jaffer/present petitioner filed an application under section 21(4) of the Punjab Rented Premises Ordinance, 2007, for setting aside the order dated 11-5-2009 as well as for restoration of the possession of the disputed shop. The learned Special Judge (Rent), Lahore, through order dated 27-1-2010, came to the conclusion that the notices sent to the present petitioner through Process Server as well as registered post could not be duly served due to incomplete address. The learned Special Judge (Rent), Lahore also observed that the demised premises could not be identified by the staff of courier serving agency i.e. OCS as well as the Process Server, who submitted a report regarding affixation of the notices. The learned Special Judge (Rent) gave a clear finding to the effect that the notices were not duly served upon the respondent/judgment debtor/present petitioner. Consequently, the learned Special Judge (Rent), Lahore set-aside the ex parte eviction order dated 11-5-2009. In this backdrop, the observation of the learned Additional District Judge, Lahore, in the impugned order dated 16-3-2010 that the learned Special Judge (Rent) has overlooked the relevant provisions/requirements of law i.e. section 21(4) of the Punjab Rented Premises Act, 2009, is without any basis. The learned Special Judge (Rent), Lahore was fully satisfied that there was sufficient cause for non appearance of the respondent in the eviction petition, due to his non-service. In view of the above conclusive findings- of the learned Special Judge (Rent), Lahore, which were based on proper examination of the reports made by the Process Server as well as postman/courier service agency, there was no necessity for framing of an 'issue and requiring the parties to produce their evidence on this point. Hence, the findings of the learned ADJ, Lahore recorded in his order dated 16-3-2010 are illegal, erroneous and suffer from material irregularity.

7. Now I advert to the second objection of the learned counsel for respondent No.3 that the learned Special Judge (Rent) has no power to restore the possession of the shop in dispute to the present petitioner in view of section 21(4) of the Punjab Rented Premises Act, 2009. The said argument is devoid of any legal force and in this connection, I would like to reproduce hereunder subsections (4) and (5) of section 21 of the Act ibid:-- "(4) If an ex parte order is passed against a respondent, the respondent may, within ten days from the date of knowledge, apply to the Rent Tribunal for setting aside the ex parte order along with an application for leave to contest. (5) If the respondent shows a sufficient cause for his non-appearance, the Rent Tribunal may set aside the ex parte order on such terms as it may deems lit." (Underlining for emphasis)

8. A careful perusal of the aforementioned provisions of the Punjab Rented Premises Act, 2009 would establish that in the event of showing a sufficient cause by the respondent for his non-appearance prior to the passing of the ex paste order, the Rent Tribunal is empowered to set aside the same on such terms as it may deem fit. In case the respondent, who has been evicted in execution of an ex parte order succeeds in getting the said ex parte order set-aside by showing sufficient cause for his non-appearance, he has a right to get the possession of the property restored. Hence, the order of the learned Rent Tribunal for restoration of the possession would fall within the expression "on such terms as it may deem fit" used by the legislature in subsection (5) of section 21 of the Punjab Rented Premises Act, 2009. Obviously, the setting aside of an ex parte eviction order without restoration of the possession would be absurd, as the same would cause an irreparable loss, in addition to giving rise to multiplicity of proceedings. It is also worth consideration that the learned Special Judge (Rent), Lahore has granted leave to contest the eviction petition to the present petitioner, vide order dated 27-1-2010, and in case; the possession of the present petitioner over the shop in dispute is not restored, the said leave to contest would be meaningless. The present petitioner claims to be an owner of the shop in dispute, who has been granted leave to contest the eviction petition, filed by present respondent No.3 against him and, as such, the same must be allowed to be decided by the learned Rent Tribunal strictly in accordance with law.

9. In view of above, there was no illegality in the order dated 27-1-2010, passed by the learned Special Judge (Rent), Lahore, which has been illegally and erroneously set aside by the learned Additional District Judge, Lahore, vide order dated 16-3-2010. Resultantly, the order of the learned Additional District Judge, Lahore dated 16-3-2010 is declared to be illegal and accordingly, set aside. Consequently, the order of the learned Special Judge (Rent), Lahore, dated 27-1-2010, is restored. The instant petition is, accordingly allowed. H.B.T./M-411/L????????????????????????????????????????????????????????????????????????????????? Petition accepted.