By this single order I intend to dispose of W.P. No. 1099-2010 titled "Khawar Mehboob Vs. Abdul Rehman etc." and W.P. No. 1100-2010 titled Khawar Mahboob Vs. Attique-ur-Rehman etc." since the petitioner in both the petitions is the same and common question of fact and law is involved.
2. Through the present writ petition order dated 23.2.2010 passed by the learned Special Judge Rent Rawalpindi has been challenged whereby he had allowed the application to defend the ejectment petition.
3. The order is challenged on the ground that under Section 22(3) of the Punjab Rented Premises Act, 2009 an application for leave to contest should be accompanied by an affidavit of the respondent, copy of all relevant documents in his possession and if desired affidavits of not more than two witnesses.
4. The only ground upon which.the impugned order has been challenged is that application for leave to contest was not accompanied by the affidavit of respondent, so the, leaned Special Judge Rent had committed illegality by allowing the same.
5. Learned counsel for the petitioner contended that in sub-section (3) of Section 22 word used is "shall" i.e. application for leave to contest shall be accompanied by an affidavit and this is mandatory provision of law, so the learned Rent Tribunal had committed illegality in allowing the same. He further contended that the same condition is imposed for filing the ejectment petition under Section 19(4) of the said Act for the landlord. He further contended that almost identical is the case of suit Under Order XXXVII CPC in which the affidavit is mandatory and without affidavit the said suit had been dismissed and placed reliance upon 1998 CLC 1133, PLD 1986 Lahore-124, 1989 CLC 1689, PLD 2009 Lahore-469. He further contended that the case reported in PLD 2009 Lahore-469 relates to the Punjab Rented Premises Ordinance which had been circulated and the Rent Tribunals had been directed to ensure the compliance of mandatory provisions.
6. On the other hand learned for Respondent No. 1 contended that in Section 22(1), the penal clause is provided that the Rent Tribunal shall not allow the respondent to defend the application unless he obtains leave to contest. He further contended that in its sub-section (4) once again the penal provision is provided that the Rent Tribunal shall not allow leave to contest to the respondent unless the application discloses sufficient grounds for production of oral evidence. He contends that in its sub-section (3) it is provided that the application for leave to contest shall be accompanied by the affidavit but no penal provision is provided in the said sub Section so, this is a cureable defect and otherwise the matter should be decided not on technicalities. He contended that even in the suits under Order XXXVII CPC, it had been observed by the Courts that said affidavit could be accepted by the Court later on. In this behalf he had placed reliance upon PLD 1993 Karachi-661 and 2004 CLC-1266.
7. Arguments heard. Record perused.
8. The most relevant law cited by the learned counsel for the petitioner on the subject-matter which relates to Punjab Rented Premises Ordinance, 2007 is reported in PLD 2009 Lahore 469. Even in the said case, only direction was issued in the following words-- "the Rent Tribunal is further to ensure that whether the said statutory provisions stands complied with, the application is filed by the tenant/respondent for leave to contest in the manner prescribed."
Even otherwise for convenience sake Section 22 of the said Act is reproduced as under:-- 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 Ordinance, a respondent shall file an application for leave to contest within ten days of his first appearance in the Rent Tribunal.
(3)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, affidavits of not more than two witnesses.
(4)The Rent Tribunal shall not allow leave to contest 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.
9. A perusal of above section clearly shows that in its sub-sections (1) and (4) the penal provision is provided but it is sub-section (3) where it has been provided that the application for leave to contest shall be accompanied by an affidavit, no penal provision is provided. This clearly implies that this is a cureable defect and the learned Rent Tribunal can direct the tenant to file the affidavit even if inspite of direction the tenant does not comply with the order, the Rent Tribunal can pass the order for dismissal of the application for leave to contest. In the present case it appears that the learned Rent Tribunal has not taken notice of the fact that the application was not supported by the affidavit. Had it taken notice of it, it must have directed the tenant to file the affidavit.
However, merely on this ground the application for leave to contest cannot be dismissed and the proper direction can be issued in this behalf.
10.In view of what has been said above, both these writ petitions have no force and the same stands dismissed.