BAKHT MUNIR Versus QADIR KHAN

SYED IFTIKHAR HUSSAIN SHAH, J.-- -Petitioner Bakht Munir has assailed the legality of order dated 12-11-2012 passed by the learned Rent Controller, Rawalpindi whereby application made by the petitioner for setting aside the ex parte proceeding order and application for leave to contest were dismissed and order dated 21-9-2013 passed by the learned Additional District Judge, Rawalpindi whereby appeal preferred against the aforesaid order dated 12-11-2012 was dismissed.

2. Succinctly, Qadir Khan respondent No.1 made an eviction petition under section 15 of the Punjab Rented Premises Act, 2009 against the present petitioner before the learned Rent Controller, Rawalpindi wherein the service of the present petitioner could not be effected through ordinary mode of service and after getting him served through proclamation in the newspaper, he was proceeded against ex parte vide order dated 6-10-2012. The petitioner appeared before the learned trial Court on 18-10-2012 and made an application for setting aside ex parte proceedings. On 31-10-2012 the petitioner made an application for seeking leave to contest the eviction petition and also made an application for condonation of delay in filing the said application. The learned Rent Controller vide order dated 12-11-2012 dismissed both these application. The petitioner being aggrieved of the said order of the learned Rent Tribunal, preferred an appeal before the learned Additional District Judge, which was also dismissed vide order dated 21-9-2013.

3. Learned counsel for the petitioner has contended that the learned Rent Tribunal has not issued notice to the petitioner in the form prescribed in schedule for his appearance; that even the proclamation was not in the prescribed form and even the learned Rent Tribunal has not informed the petitioner at the time of first appearance before the Court for filing of application for seeking leave to contest, therefore, the impugned order declining the leave to contest and dismissing application for setting aside ex parte proceedings, is not in accordance with law but both the learned Courts below have not appreciated this aspect of the matter. Relies on cases titled "Sharafat Kaleem v. Additional District Judge, Bahawalnagar and 11 others (2013 CLC 185 [Lahore])", and "Muhammad Amir Habib v. Zaheer Ahmad and 2 others (PLD 2012 Lahore 107)".

4. On the other hand, learned counsel for respondent No.1 has contended that the application for setting aside the ex parte proceeding was made with the delay and without making application for leave to contest the eviction petition, which was required to be filed within 10-days from the date of his first appearance before the Court, therefore, the impugned orders are not in accordance with law. Relies on cases titled "Ghulam Murtaza v. Rana Muhammad Hafeez and another (2010 YLR 3189 [Lahore])", and "Tayyab Hussain v. Rent Controller Gujrat and others (PLD 2012 Lahore 41)".

5. I have heard learned counsel for the parties and have perused the record.

6. After failing in procuring the attendance of the present petitioner before the Court through ordinary mode of service, the learned Rent Controller vide order dated 22-9-2012 directed substituted service by issuing proclamation in the daily newspaper "Khabrain" for 5-10-2012. On the said date the learned Presiding Officer was on leave and the petition was adjourned for 6-10-2012. On the said date, the petitioner did not appear before the Court and was proceeded against ex parte and the eviction petition was fixed for 18-10-2012 for ex parte evidence of respondent No.1. On 18-10-2012 the present petitioner appeared before the Court in person while making application for setting aside ex parte proceedings and also submitted Wakalatnama of his learned Advocate Malik Ihtisham Neelum. He was provided with the copies of the petition. The written reply was also filed by respondent No.1 on the same day and the matter was adjourned for arguments on 31-10-2012. On 31-10-2012 the petitioner made an application for leave to contest the petition accompanied with an application for the condonation of delay in filing the said application.

7. Under section 21 of the Punjab Rented Premises Act, 2009, on the application made by the landlord for the eviction of his tenant, the Rent Tribunal shall issue notice to the respondent/tenant in the form prescribed in schedule for his appearance on a date not later than 10-days. The notice shall be accompanied by the copies of the application and the documents annexed with the application and when the tenant fails to appear in spite of service through modes prescribed in section 21(3) ibid, then the learned Rent Tribunal may proceed ex parte and pass any order. The tenant may within 10-days from the date of knowledge of the ex parte order, apply to the learned Rent Tribunal for setting aside the same along with application for leave to contest.

8. Admittedly, in this case the petitioner/tenant has not made an application for leave to contest along with application for setting aside ex parte proceeding order as required under Section 21 (4) ibid. Now the contention of the petitioner is that he was not duly served with the notice in the form prescribed in the schedule, which is as under:?

"To

________________________________________________

(Name, description and place of residence)

Whereas _________________________________________ (name of the application) has filed application for__________________________ (nature of the application) against you under the Punjab Rented Premises Act, 2009 for ___________________ (nature of the prayer) of which a copy is hereto annexed and is fixed for ____________(date).

Your 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 passed 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)

The petitioner could not be duly served through ordinary mode of service and he appeared before the learned Rent Tribunal in response to the proclamation which did not contain the condition that leave application was required to be filed within 10-days. The proclamation is as under:-

9. The petitioner in response to his service through proclamation in the newspaper, appeared before the learned Rent Tribunal on 18-10-2012 along with an application for seeking setting aside the ex parte proceeding and Wakalatnama of his learned counsel but his learned counsel did not accompany him on the said date before the learned Rent Tribunal. It is evident from the record that even on 18-10-2012 no notice as prescribed by the law under section 21(1) ibid was served upon the present petitioner and the eviction petition was adjourned for arguments for 31-10-2012, when an application for leave to contest was made. When no notice in the form prescribed by the Punjab Rented Premises Act, 2009 accompanied by the copies of the eviction petition and the documents annexed with the said application in the terms of section 21(1) of the Act was served upon the petitioner or handed over to him while appearing before the learned Rent Tribunal, he could not be burdened with the consequences of the mandatory provisions of subsections (2) and (6) of section 22 of the Act. 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.

10. The word "shall" has been used in section 21(2) that a notice under subsection (1) shall be accompanied by copies of the application and the documents annexed with the eviction petition. Non-compliance of this directory provision of subsection (1) of section 21 ibid amounts to deny a statutory right of a tenant. In the event of non-compliance of the said statutory provision, the penalty of provisions of subsection (6) of section 22 ibid cannot be invoked. The case-law relied upon by the learned counsel for respondent No.1/landlord is not directly applicable to the facts and circumstances of the present case. The mandatory provisions of law contained in subsections (1) (2) (3) of section 21 ibid have been violated in this case. The prescribed procedure has not been followed by the learned Rent Tribunal nor noticed by the learned Appellate Court. Therefore, the writ petition is allowed. Both the impugned orders of the learned Courts below dated 12-11-2012 and 21-9-2013 are hereby set aside. The learned Rent Tribunal, before whom the rent petition is still pending for final adjudication, is directed to decide the application for leave to contest afresh and then to proceed further in accordance with law.

AG/B-29/L Case remanded,