2013 CLC 185 (PLP)

ABDUS SATTAR ASGHAR, J.

By virtue of this single order I intend to dispose of instant writ petition as well as another Writ Petition No.2040 of 2010/Bwp titled 'Muhammad Ishaque v. Additional District Judge, and others' involving same question of law and fact calling in question the validity and vires of two separate orders dated 25-2-2010 passed by learned Rent Tribunal Bahawalnagar whereby ejectment petitions lodged by respondents Nos.3 to 12 were accepted against the petitioners as well as two separate orders dated 16-4-2010 passed by learned Additional District Judge Bahawalnagar whereby petitioners' appeals were dismissed.

2. It is argued by learned counsel for the petitioners that they were never served with a notice on the form prescribed in the schedule in terms of section 21(1) of the Punjab Rented Premises Act, 2009; that the petitioners' service in the ejectment petitions filed by respondents Nos.3 to 12 was procured through an ordinary notice as well as through publication in the newspaper; that petitioners appeared before the learned Rent Tribunal on 16-2-2010 in person; that even on the said date no notice under section 21(1) of the Act ibid was served upon the petitioners to file leave to defend the ejectment petitions rather on the said date one Malik Shahid Ahsan had lodged an application for his impleadment as party in the ejectment petition, which was accepted on the no objection statement of learned counsel for the respondents and the respondents were directed to file amended ejectment petitions after impleading Malik Shahid Ahsan as party; that the same day learned counsel for the respondents had also made a request that the word 'Ordinance' written in the head-note of the petition due to clerical mistake instead of Punjab Rented Premises Act 2009, be allowed to be corrected, which was accordingly permitted by the learned Rent Tribunal and the case was adjourned to 22-2-2010 for filing of the amended ejectment petitions; that on 22-2-2010 respondents filed amended ejectment petitions; that on 25-2-2010 through the impugned orders petitioners' right to defend the ejectment petitions was struck off and the ejectment petitions were accepted with a direction to hand over the vacant possession of the disputed shops within thirty days; that although rent petitions were addressed to Rent Tribunal Bahawalnagar, however, the learned Civil Judge conducted the proceedings as Civil Judge 1st Class Bahawalnagar instead of Special Judge Rent Tribunal under the Act ibid from day one till passing the impugned orders; that being aggrieved petitioners assailed the impugned orders before the learned Additional District Judge through appeal, which were dismissed misconstruing the provisions of sections 21 and 22 of the Act; that the impugned orders are illegal, without lawful authority, without any legal effect qua the rights of the petitioners, untenable in the eye of law and liable to set aside.

3. Both the constitutional petitions are resisted by learned counsel for the respondents with the contentions that since the petitioners had appeared in person before the learned Rent Tribunal on 16-2-2010, therefore, in terms of section 22(2) of the Act it was incumbent upon them to file the applications for leave to contest within ten days of their first appearance before the learned Rent Tribunal; that petitioners' failure in filing of applications for leave to contest within prescribed period of ten days expired on 25-2-2010 rendered them liable to striking off defence and passing of the final order in terms of subsection (6) of section 22 of the Act; that the learned Rent Tribunal as well as learned Additional District Judge while exercising their lawful authority have passed the impugned orders in accordance with law and the petitioners have no case at all to invoke the constitutional jurisdiction of this Court.

4. I have given patient hearing to learned counsel for the parties and gone through the record.

5. At the outset it may be expedient to reproduce the relevant provision of sections 21 and 22 of the Punjab Rented Premises Act, 2009 for ready reference:

"

21. Appearance of parties and consequences of non-appearance.

(1) If an application under this Act other than application for deposit of rent is filed, the Rent Tribunal shall issue notice to the respondent in the form prescribed in the Schedule, for appearance of the respondent on a date not later than ten days through process server, registered post acknowledgement due and courier service. (2) A notice under subsection (1) shall be accompanied by copies of the application and the documents annexed with the application.

22. Leave to contest.

(1) A Rent Tribunal shall not allow a respondent to defend the application unless he obtains leave to contest. (2) Subject to this Act, a respondent shall file an application for leave to contest within ten days of his first appearance in the Rent Tribunal. (3) Any 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, affidavit of not more than two witnesses. (4) The Rent Tribunal shall not allow leave to contest to a respondent unless the application discloses sufficient grounds for production of oral evidence. (5) The Rent Tribunal shall decide the application for leave to contest within a period of fifteen days from the date of its filing. (6) If the leave to contest is refused or the respondent has failed to file application for leave to contest within the stipulated time, the Rent Tribunal shall pass the final order."

6. Simultaneously, contents of the notice in the form prescribed in the Schedule under section 21(1) of the Act reads below:

SCHEDULE [See subsection (1) of section 21] (Name of the Rent Tribunal) (Title of the application) To __________________________________________ (Name, description and place of residence) Whereas __________ (name of the applicant) has filed application for ________ (nature of the application) against you under the Punjab Rented Premises Act, 2009 for __________ (nature of prayer), of which a copy is hereto annexed and is fixed for _________(date). You are hereby directed to obtain leave to contest the application from the rent Tribunal described above within ten days of the date of hearing/appearance mentioned above. In default whereof the Rent Tribunal may pass a final order in favour of the applicant. Leave to contest may be obtained on an application in the form of written reply and specifying a ground (s) on which the leave is sought, accompanied by your affidavit and, copies of all the relevant documents in your possession and, if so desired, affidavits of not more than two witnesses. Given under my hand and the seal of the Rent Tribunal on this______ day of _______ Special Judge (Rent)."

7. Learned counsel for the respondents admits that notice to the petitioners were not served on the prescribed pro forma as given in the Schedule rather on 4-2-2010 general notices were issued in the name of the petitioners requiring them to appear in person or through agent on 16-2-2010 to file a written reply to the ejectment petitions otherwise they will be proceeded against ex parte. In response to the said notices petitioners appeared before the learned Rent Tribunal on 16-2-2010. It is evident on the record that even on 16-2-2010 no notice on the prescribed form was served upon the present petitioners rather on 16-2-2010 the case was adjourned to 22-2-2010 for filing of amended ejectment petitions after impleading one Malik Shahid Awan as party. Amended petitions were filed by the respondents on 22-2-2010 and the cases were further adjourned to 25-2-2010.

8. It is pertinent to mention that the opening words/expression 'Subject to the Act' used in subsection (2) of the section 22 of the Act bears great importance. Certainly mandatory provision of filing of application for leave to contest within ten days of his first appearance in the Rent Tribunal is subject to all other obligatory and ancillary provisions of the Act. When no notice in the form prescribed through the Schedule and accompanied by the copies of the application and the documents annexed with the application in terms of section 21(1) of the Act was served upon the petitioners on filing of the ejectment petition or on their first appearance before the learned Rent Tribunal, therefore, they could not be burdened with the consequences of mandatory provisions of subsections (2) and (6) of the section 22 of the Act violative to the principle of audi alteram partem. It is an 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 be made upon Khalil-ur-Rehman and others v. Dr. Manzoor Ahmed and others PLD 2011 SC 512.

9. Right of fair trial and due process is protected under Article 10-A of the Constitution of Islamic Republic of Pakistan 1973., Certainly a question of fact or liability conclusively presumed without having recourse to the procedural due process cannot be said to have been determined under due process of law. It is pertinent to mention that the word 'shall' used in subsection (1) of section 21 of the Act makes it obligatory upon the Rent Tribunal to serve the tenant with a notice in the form prescribed in the Schedule and to be accompanied by copies of the application and the documents annexed with the application. Non-compliance of the directory provisions of subsection (1) of section 21 of the Act, therefore, amounts to deny a statutory right of the tenant. In the event of such denial of statutory right imposition of penal provision under subsection (6) of section 22 of the Act cannot be said a fair trial in due process of law. The impugned orders, therefore, are also violative to the fundamental rights protected under Article 10-A of the Constitution. In view of the above, the impugned orders passed by learned Rent Tribunal and learned Additional District Judge are illegal, without lawful authority and untenable in law.

10. For the foregoing discussion and reasons both the writ petitions are allowed and impugned orders dated 25-2-2010 and 16-4-2010 assed by learned Rent Tribunal and learned Additional District Judge are set aside and both the cases are remanded back to the learned Rent Tribunal Bahawalnagar with a direction to the parties to appear before the learned Rent Tribunal on 15-3-2012. The learned Rent Tribunal is also directed to furnish an opportunity of filing leave to contest to the petitioners within ten days w.e.f. 15-3-2012 and then proceed further with the matter in accordance with law. KMZ/S-34/L Case remanded.