ORDER MUHAMMAD KHALID MEHMOOD KHAN, J.---Through this single order I propose to decide Writ Petitions Nos.8350 of 2010, 8351 of 2010, 8352 of 2010 and 8353 of 2010 as in all the petitions, same question is involved and the facts are same.
2. The respondents filed an ejectment petition against the petitioners under Punjab Rented Premises Act, 2009 (hereinafter to be referred as Act of 2009). Notices were issued but petitioners failed to appear and in their absence ex parte ejectment order was passed on 19-10-2009. The petitioners then filed an application for setting aside ex parte order which too was dismissed on 4- 6-2010, appeal thereagainst also failed on 15-7-2010, hence, the present petition.
3. Learned counsel for petitioners submits that respondents obtained ex parte order by committing fraud, the petitioner was never served, no notice as prescribed under Act of 2009 was issued, the report of process server is collusive. He further submits that finding of learned Rent Controller as well as appellate Court that petitioners in terms of section 24(4) of the Act of 2009 have failed to file an application to contest along with application for setting aside ex parte ejectment order is against law.
4. Learned counsel for respondents supports the judgment and submits that under section 21(4) of the Act the petitioners have to file application for leave to contest along with application for setting aside ex parte order which they have to file and as such the impugned orders are perfectly in accordance with law. Learned counsel further submits that notices were issued and on refusal of respondents to accept notices, learned Rent Controller has rightly directed to serve the petitioner through publication and again the petitioners failed to appear. He further submits when petitioners filed execution petition, the petitioners appeared and as such now petitioners could not claim that they were not served.
5. Heard, record perused.
6. The respondents filed an ejectment petition on 31-7-2009 against petitioners for their eviction from the shop, commonly known as Khan P.C.O, Shah Risal Road, Outside Haram Gate Multan. On 31-7-2009 the learned Rent Controller issued notices to respondents for 10-9-2009 through registered A.D. Courier Service. On 10-9-2009 the learned Rent Controller was on leave and the duty Judge passed order that petitioners have refused to accept service and as such they be served through publication in daily `Karnama' for 19-9-2009. On 19-9-2009 proclamation was Received, but the petitioner failed to appear, hence they were proceeded against ex parte and case was adjourned to 1-10-2009 for recording ex parte evidence. On 1-10-2009 ex parte oral evidence was recorded and case was adjourned to 5-10-2009 for documentary evidence. On 5-10-2009 case was again adjourned to 9-10-2009. On 9-10-2009 an adjournment was sought and case was fixed for 13-10-2009. On 13-10-2009 documentary evidence was recorded and case was adjourned for arguments on 19-10-2009. On 19-10-2009 ex parte ejectment order was passed.
7. Under section 21 of the Act of 2009 procedure is provided for filing ejectment petition, service of respondent/ tenant and providing the annexures. For better appreciation of the above provision of law is reproduced as under:-- "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.
(3) If the respondent fails to appear and the Rent Tribunal is satisfied that:--
(a) the notice has not been served on the respondent or the respondent is wilfully avoiding the service of the notice, the Rent Tribunal may direct service of the notice by:
(i) affixing a copy of the notice at some conspicuous part of the rent premises or residence of the respondent; or
(ii) publication in the press, electronic media or any other mode; and
(b) the notice has been served, the Rent Tribunal may proceed ex-parte and pass the final order.
(4) If an ex parte order is passed against a respondent, the respondent may, within ten days from the date of knowledge, apply to the Rent Tribunal for setting aside the ex parte order along with an application for leave to contest.
(5) If the respondent shows a sufficient cause for his non-appearance, the Rent Tribunal may set aside the ex parte order on such terms as it may deem fit.
(6) The parties may appear in person or through recognized agent in the Rent Tribunal.
(7) If on a date fixed, the applicant fails to appear, the Rent Tribunal may dismiss the application.
(8) if an application has been dismissed in default of the appearance of an applicant and an application for restoration of the same is made within thirty days of the dismissal order, the Rent Tribunal may. Restore the application on such terms as it may deem appropriate".
8. Perusal of above said provision of law shows that it provides the complete procedure for filing of petition, service of respondent, filing an application in case where ex parte order is passed and reasons for setting aside ex parte order. An application for restoration of ejectment petition if dismissed for non-prosecution.
Under section 21(1) The Rent Controller shall issue notice to respondent in the FORM prescribed in the schedule. The schedule is provided in the Act of 2009: The schedule shows that a FORMATE of notice is provided in subsection (1) of section 21. The said form of notice is special in nature. Under section 21(2), the notice shall be accompanied with a copy of ejectment application and documents filed with it. Under subsection (3) of section 21, in case of failure of respondent to appear to the satisfaction of learned Rent Controller and it is proved that tenant/respondent is wilfully avoiding to accept the service, the Rent Controller may direct to affix copy of notice at some conspicuous part of rented premises or residence of the respondent or publication in the press, electronic media or any other mode and if the notices were served in the above manner, the Rent Controller may proceed ex parte against the tenant and may pass the final order. The record shows -that no notice as prescribed by section 21 was issued for summoning the petitioners. The notices issued to petitioner is under Order V of Code of Civil Procedure and said notice does not provide that petitioners have to file application for leave to contest within 10 days nor the said notice shows that copy of plaint and other documents were annexed with the notice. The address of petitioner as given in the petition specifically shows that the property in dispute is a P.C.O shop but in notice under Order V, C.P.C., this fact is not mentioned. The report of process server shows that he never approached the petitioner at their shops, rather, he went to their house and made the report that petitioners have refused to accept the notice Sand learned Rent Controller relying on the report of process server directed the issuance of proclamation in newspaper. The proclamation issued in newspaper also shows that it was not on the prescribed form. The perusal of section 21 shows that word "shall" has been used for issuance of notice on prescribed "FORM" as per Schedule of Act, 2009. The notice issued as well as proclamation published issued shows that petitioners were not called upon to file application for leave to contest within 10 days and as such all the ensuing proceedings based on the said notice and publication are of little consequence. It cannot be held on the basis of proclamation in the newspaper that either the notices were validly published as per requirements of law or the petitioner was legally served. The learned Rent Controller while proceeding ex parte against petitioners did not advert to this crucial aspect of the case and failed to take notice that notice was not published and issued as prescribed under the law. In the absence of issuance of valid notice and publication the petitioner could not even proceed ex parte nor any ejectment order could be passed. The procedure of the Act of 2009 has been borrowed from Order XXXVII, C.P.C. The question of void order came up before the honourable Supreme Court of Pakistan and it was held in Yousaf Ali v. Muhammad Aslam Zia and 2 others (PLD 1958 Supreme Court 104):- "That if on the basis of a void order subsequent orders have been passed either by the same authority. or by other authority, the whole series of such orders, together with the superstructure of rights and obligations built upon them, must, unless some statute or principle of law recognizing as legal, the changed position of the parties is in operation, fall to the ground because such order has as little legal found as the void order on which they are founded."
9. The circumstances of the case in hand show. It is proved on record that no notice was issued in terms of subsection (1) C of section 21 of Act of 2009 and as such the petitioners were not served in accordance with law.
10. The learned Rent Controller while deciding the application for setting aside ex parte ejectment order has relied on subsection (4) of section 21 of Act, 2009 and held that petitioner has failed to file an application for leave to contest along with application for setting aside ex parte order and as such application for setting aside ex parte order is of no avail. The petitioners have filed an application for setting aside ex parte order which shows that they have raised the ground that no relationship of landlord and tenant exists between the parties. They are tenants of one Zubair and are paying rent regularly to him. They have specifically asserted that they were never served.
11. The finding of learned Rent Controller as well as learned appellate Court could not sustain for the simple reason that initial order of service was void as no notice on prescribed FORM was issued as per Schedule of Act, 2009. The other aspect of the case is that if the petitioners have not filed separate the application for leave to contest, the Rent Controller should have considered the application of setting aside ex parte order as well as application for leave to contest, but when the notice was not issued in the prescribed FORM the provision of section 21(4) could not be pressed in to service. The word "may" has been used in this provision of law. In case the tenant is served as per prescribed notice of Act, 2009, even then under subsection (4) of section 21 the petitioner has the right to file an application for setting aside ex parte order. The petitioner's application shows that he has taken the ground for leave to contest the application. The word along with does not mean a separate application, the word "along with" and with word "may" if read together will show that in one application both the applications could be filed.
12. As it is an admitted fact that petitioners were not served as provided by law, no copy of plaint and annexures were provided to them, nor they were directed to file application within 10 days and as such the provision of section 21(4) of Act, 2009 could not be invoked.
13. This is not the intention of law That dispute between the parties should be decided on technicalities but the law is meant for advancement of justice and justice can be done only if both the parties are heard and case is decided on merits. Under Article 10-A of Constitution of Islamic Republic of Pakistan, it is the fundamental right of the parties to be heard and to provide an opportunity of fair trial.
14. The upshot of above said discussion is that petitions succeeds and are allowed. The impugned orders dated 4-6-2010 and 15-7-2010 are set aside and petitioners applications for setting aside ex parte order is allowed. The learned Rent Controller will provide copy of ejectment petition and annexures to petitioners and on receipt of copy of ejectment petition and its annexures the petitioners will be bound to file an application for leave to contest within 10 days.
15. There is no order as to costs..