P L D 2011 Supreme Court 512 (PLP)

MIAN SAQIB NISAR. J.

The petitioners initiated an ejectment petition against the respondents under the provisions of Punjab Rented Premises Ordinance, 2007 (hereinafter referred to as the Ordinance). The latter in terms of section 22(3) of the Ordinance filed an application for leave to defend the petition, which was allowed, whereafter upon framing of the issues the parties were put to trial and the petition was dismissed by learned Rent Tribunal through the order dated 12-9-2009, holding that no grounds justifying the eviction of the respondents has been proved by the petitioners. The order was unsuccessfully assailed by the petitioners in appeal, and their further challenge to these orders remained fruitless before the Lahore High Court in the constitutional jurisdiction.

2. Learned counsel for the petitioners has argued that in violation of section 22(3) ibid the affidavits of witnesses were not filed along with the application for leave to defend, therefore, besides the effect thereof, that the respondents were not entitled to the leave, they were also precluded to examine any witness whose affidavit was not so submitted; this according to the petitioners' counsel was the mandatory requirement of law and the view set out by the forums below to the contrary is untenable. On merits, it is urged that respondent No.1 has sublet the shops to respondents Nos.2 and 3 in violation of the tenancy 'agreement between the parties and the law, which ground was duly proved on the record, thus the ejectment petition should have been allowed, but to hold otherwise is due to misreading and non- reading of the evidence.

3. Heard. As far as the proposition of subletting the shops is concerned, there are concurrent findings of the all the forums that the petitioners have failed to establish so on the record; we are also not persuaded to hold that respondent No.1, the original tenant had parted with the possession of the demised premises to respondents Nos.2/3 or has associated them as tenants along with him so as to constitute sub-tenancy in fact or under the law. No error in reading of the evidence has been pointed out, therefore, the noted plea 'has no force and is hereby repelled.

4. In order to appreciate the argument of the petitioners' learned counsel relating to section 22(3) of the Ordinance, it is expedient to comprehend the object, the scope and the nature of the Section, thus for the facility of reference it is reproduced as under:-- "An application for leave to contest shall be in the form of a written reply stating grounds on which the leave is sought and shall be accompanied by an affidavit of the respondent, copy of all relevant documents in his possession and, if desired, (Emphasis supplied) affidavits of not more than two witnesses." In a civil litigation the defendant of the case in the ordinary course, without even being required by the court/tribunal is entitled to defend himself by filing a written statement. However it is permissible under the law that in certain class of cases, in the ordinary civil jurisdiction or even special jurisdictions a summary procedure can be prescribed and adopted; such as, in the suits under Order XXXVII, C.P.C. or those instituted in the special Banking jurisdiction or under certain special law where a defendant is served with a show-cause notice. In the latter category of cases the defendant is not entitled to defend the suit or the lis as a matter of course or a right, but under the law is required first to seek the leave of the Court to defend the cause propounded against him; in other words the permission of the Court in this behalf is imperative. Thus, if the Court on the basis of the grounds set out in the leave application, which if is required by law to be supported by an affidavit of the defendant and the documents, finds that defendant has raised triable issues indicating a fair, bona fide, reasonable and plausible defence, the leave shall be granted and if there is no further condition prescribed by the law, the trial of the case thereafter must proceed in an ordinary and usual way. The noted section is essentially structured upon the aforesaid principle and the main purpose of the above category of cases is the expeditious disposal of the matters and to prevent the prolongation of the lis on account of worthless and baseless defence, which should be evaluated and gauged at the very beginning, rather undertaking the hassles of a full-fledge trial. This explains the object and intent of the section.

5. In order to analyze the section in the above context, its contents reveal that the provision can be divided into. three parts: firstly, the leave application should be in the form of a written reply which should be self contained, because it' the leave is granted, the same reply has to serve as the written statement of the respondent, forming the basis for, the resolution of the factual and legal propositions involved in the matter; thus the application should contain all the legal pleas/objections, if any, the parawise answers to the contents of the ejectment petition and should also set forth the specific grounds of law and fact contemplating the substantial and serious questions thereof (law and fact), so that the Tribunal should be able to form a judicial opinion whether the pleas raised are good enough to constitute triable issue .and/or plausible defence and that such a defence is not illusionary or sham; therefore, the contents of the application should not be vague, unclear, lacking in precision, obviously if it is so the respondent shall suffer as the tribunal may refuse leave on that account.

6. The second part of the section commands that the application should be accompanied by the affidavit of the respondent. As it is an express requirement` of the law, and it is settled, by now that where the law requires an act to be done or performed in a particular manner it has to be accordingly done/performed and not otherwise, besides, it is also the rule of law that where an application/pleading should be supported by an affidavit under a statutory provision which is not filed, such application shall not be maintainable. However, the defect in this behalf is curable, but only in those cases where a 'sufficient cause' and 'reasonable explanation' is propounded by the respondent for not filing his affidavit along with the leave application, otherwise such defect should not be permitted to be cured by the Tribunal as a matter of course or routine; to this extent the provisions are mandatory. About the requirement of filing the documents along with the leave application, it has two-fold object, one, that the tribunal while adjudging the matter at the leave stage, on the basis of documentary material produced by the respondent should be in a better position to evaluate the worth of the defence for that purpose; second, the said reply is to be ultimately treated as the written statement, therefore, for speedy disposal of the rent matter it is intended that no. further exercise of filing the documents should be undertaken; this requirement also has the nexus to prevent possibility of the fabrication of documents afterward and also to eliminate the chance of taking the opposite party by surprise, thus, the need and the omission of filing the documents must be viewed in the above perspective and the legal consequences should ensue resorting to the principles of the Civil Procedure Code in this behalf, as far as possible.

7. The third portion of the section starts with the wording 'if desired' (Emphasis supplied) which means that an option has been given to the tenant that for the purposes of making out a case for the leave, if he feels the necessity of the affidavits of the witnesses in support of his defence, he may file those, but a restriction, has been placed that such affidavits should not be more than two. If the option however is not exercised by the respondent there are no penal consequences provided in law that he shall be precluded to examine any witness in the course of trial in order to prove his case; the provision obviously is directory and of a benign procedural nature, therefore, once the leave to defend has been granted to a tenant, despite the non-filing of the affidavit of the witness by him, his right to prove the case through oral evidence remains unimpaired.

8. Resultantly, we find no merits in this petition, which is hereby dismissed. Leave to appeal declined. M.A.K./K-3/SC Petition dismissed.