2023 PLP 820 (YLR)

MUHAMMAD SAJID MEHMOOD SETHI, J.

This order shall also dispose of connected petition i.e. W.P. No.15626 of 2020 as common questions of law and facts are involved in these cases,

2. Through instant petition, petitioner has assailed vices of order dated 07.03.2020, passed by learned Special Judge (Rent), Gujranwala, whereby application for setting aside ex parte eviction order dated 09.01.2020, was accepted. Through connected petition i.e. W.P. No. 15626 of 2020, petitioner has assailed order dated 07.03.2020 passed by learned Special Judge (Rent), Gujranwala, whereby application for setting aside ex parte eviction order dated 09.01.2020, filed by respondent No.3, was accepted with direction to petitioner to implead respondent No.3 as party to the ejectment petition.

3. Brief facts are that petitioner filed ejectment petition regarding demised premises situated at Qayyam. Pur, Ali Pur Bypass, Gujranwala against respondent No.2 on the basis of rent agreement (extension) dated 29.10.2014. Respondent No.2 was proceeded against ex parte. Learned Rent Tribunal, vide ex parte final order dated 09.01.2020, proceeded to allow the ejectment petition, as prayed for. Later on, respondent No.2 (herein) as well as respondent No.3 (in connected petition) filed their respective applications for setting aside aforesaid ex parte final order, which were accepted vide orders dated 07.03.2020 and aforesaid order dated 09.01.2020 was set aside and respondent No.3 was allowed to be impleaded as party in eviction petition. Hence, instant petition.

4. Learned counsel for petitioner submits that impugned order has been passed without considering the provision of section 21(4) of the Punjab Rented Premises Act, 2009 ("the Act of 2009"), under which, application for setting aside ex parte order / judgment must. accompany application for leave to contest. He adds that in any case, after first appearance, leave application is required to be filed under section 22(2) of the Act of 2009 within a period of ten days, but learned Rent. Tribunal accepted leave application beyond aforesaid statutory period. He further submits that address of respondent No. 2 mentioned in rent agreement was incorporated in eviction petition, however, in application for setting aside of eviction order, respondent No 2 malafidely mentioned a different address. He further contends that respondent No.3 had no locus siandi to file aforesaid application. In the end, he submits that impugned order is unsustainable in the eye of law. 5 Conversely, learned counsel for respondents defends the impugned orders and submits that learned counsel for petitioner has failed to point out any illegality or legal infirmity therein, thus, same is liable to be upheld. In support, he referred to Ghulam Hassan v. Jamshaid Ali and others (2001 SCMR 1001), Human Rights Cases Nos.4668 of 2006, 1111 of 2007 and 15283-G of 2010 (PLD 2010 Supreme Court 759), Muhammad Anwar and others v. Mst. Ilyas Begum and others (PLD 2013 Supreme Court 255), Mirza Allah Rakha v. Faheem ud Din Aziz and 10 others (2011 CLC 452), Ehsan Abbas v. Khush Abbas and others (PLD 2011 Lahore 311), Sharafat Kaleem v. Additional District Judge, Bahawalnagar and 11 others (2013 CLC 185), Bakht Munir v. Qadir Khan and another (PLD 2014 Lahore 87), Mureed Hussain v. Additional District Judge and others (2018 MLD 162), Adeel Ahmad Gaba v. Special Judge Rent and another (PLD 2019 Lahore 268) and Zaffar Iqbal v. Mst. Maqsood Begum and 2 others (PLD 1987 Azad J&K 156).

6. Arguments heard. Available record perused.

7. Perusal of record shows that petitioner mentioned respondent No.2 in the ejectment petition in the following manner:- Whereas, respondent No.2 has contended in its application that its correct address was "Pakistan Mobile Communications Limited Jazz Digital Headquarters, DHQ-I, IA, Kohistan Road, F-8 Markaz, Islamabad, Pakistan"; that another office of respondent No.2 is situated at G.T. Road, Gujranwala however, petitioner knowingly has not mentioned correct address in order to deprive it from appearing and defending the ejectment petition. Learned Rent Tribunal, after going through the available record, rightly observed that respondent No.2 was not served personally, therefore, following the dictum of law laid down by the Superior Courts that no one should be condemned unheard and cases should be decided on merits, allowed the application.

8. In order to effect proper service, petitioner was bound to provide complete/ correct address of the respondent (s) in the petition. Record shows that no process/summons, served or unserved, returned, thus, respondent No.2 remained unaware about the proceedings of the ejectment petition. Needless to say that substituted mode of service can only be adopted when all efforts to effect service upon respondent in ordinary course were made, but failed. No report or statement of Process Server is on record to the effect that respondent No.2 was either avoiding service of summons upon it, or it cannot be found for any reason. Non-service of respondent No.2 was due to incomplete wrong address given by petitioner. Rent Tribunal, instead of compelling the petitioner to provide proper address of respondent No.2, ordered substituted service. It is well settled that proper service of summons and notices on the defendant/respondent is the foundation of proper exercise of jurisdiction of the Court. Improper service would result in either multiplicity of litigation or setting aside or ex parte order/judgment resulting in inordinate delay in the disposal of cases on merits, as has been occurred in the lis in hand. If ex parte orders/decrees are passed on the basis of defective service, then same would adversely affect not only valuable rights of the litigants but also render the Court proceedings defective and meaningless as final order on defective foundation is liable to be set aside. Reliance is placed upon Anwar Ahmed v. Waqar Ahmed and 8 others (PLD 2015 Sindh 326). Needless to say that when no notice in terms of section 21(1) of the Act of 2009 was served upon the tenant, it could not be burdened with the consequences of mandatory provisions of subsections (2) and (6) of section 22 of the Act of 2009. It is established principle of law that when law requires a thing to be done in a particular, manner, the same must be done accordingly, and if prescribed procedure is not followed, it will be presumed that the same has not been done in accordance with law. Reliance is placed upon Bakht Munir v. Qadir Khan and another (PLD 2014 Lahore 87).

9. It is also the stance of respondent No.2 that petitioner committed concealment of facts as initially there was lease agreement between petitioner and respondent No.2, however, after sale of demised premises to respondent No.3, petitioner neither remained owner nor landlord; and that the original owner, namely Muhammad Yasin, who became landlord in view of tenancy agreement dated 10.11.2016, was not impleaded as party in the ejectment petition. This is also the stance of respondent No.3 in his application that he was the necessary party being subsequent owner in possession vide mutation No.3574 dated 18.01.2016, with whom respondent No.2 entered into tenancy agreement on 10.11.2016. In support or his version, respondent No.3 produced letter qua termination or earlier tenancy agreement between petitioner and respondent No.2 and bank statement showing receipt or rent from respondent No.2. Since both the petitioner as well as respondent No.3 are co-sharers of the property in question and simultaneously claiming tenancy agreement with regard thereto, learned Rent Tribunal was justified to sanguine for a judicious and sagacious conclusion in case respondent No.3 is arrayed as party to the proceedings, thus, rightly allowed the application with direction to petitioner to implead him as party to the ejectment petition.

10. So far as argument of learned counsel for petitioner that application for setting aside ex parte eviction order was not accompanied by leave application as required by law, is concerned, suffice it to say that bare reading of section 21(4) of the Act of 2009 shows that the word "may" used is not mandatory in nature rather same is directory in nature. Even otherwise, if the notice in terms of section 21(1) was not issued in the prescribed form, the provisions of section 21(4) of the Act ibid could not be pressed into service, Reference can be made to Muhammad Ilyas Khan Lodhi v. Additional District Judge and 4 others (2011 YLR 2705) and Mureed Hussain v. Additional District Judge and others (2018 MLD 162).

11. No misreading/non-reading of available record or jurisdictional error was pointed out by petitioner, who has remained unable to point out any legal perversity in the impugned orders, warranting interference of this Court in the exercise of its writ jurisdiction.

12. In view of the above, instant petition, along with connected petition, being devoid of any merit, is dismissed with no order as to costs. ZH/G-4/L Petition dismissed.