' SYED K AZIM RAZA SHAMSI, J--- This constitutional petition is directed against an order dated 10-3- 2011 passed by Mr. Muhammad Farhan Nabi, learned Special Judge (Rent), Lahore whereby he granted the leave to contest the ejectment petition.
2. In a petition filed under section 15 of the Punjab Rented Premises Act, 2009 the respondent filed an application under section 22(3) with the'caption of written statement, which was granted by the learned Special Judge (Rent) holding that the relationship of landlord and tenant is denied, as such the question raised could not be decided without recording the evidence of the parties. The ejectment petitioner/landlord being dissatisfied with the order has assailed the same in this petition.
3. It is contended by the learned counsel for the petitioner that the leave application was not in the form as prescribed by section 22(3) of the Act ibid; that the disputed leave application was filed beyond the period of limitation of 10 days, which fact has not been considered by the learned Special Judge (Rent); and that an act required by a law to be performed in a particular manner should be performed in such manner. Learned counsel for the respondent has submitted that the respondent is not the tenant under the petitioner, rather he is in occupation of the premises being an owner and that the constitutional petition against an interim order passed by a Rent Tribunal is not maintainable. He has cited the judgment reported as 2010 CLC 1590 to support his contention.
4. It is correct proposition of law that a constitutional petition against an interim order passed by the Special Courts is not maintainable but it is not absolute rule and the facts of the each case have to be considered before proceeding to determine question of maintainability of the writ petition. In the instant case the learned Special Judge (Rent) has proceeded against the mandatory provisions of law, which had to be checked at this early stage instead of waiting for passing of a final order. If this practice of not checking the interim orders at the proper stage is not discarded that would lead to the wastage of public time and would also multiply the litigation between the parties. In the case in hand as per order dated 23-12-2010 available at page 30 of this writ petition the respondent made first appearance before the Court by filing Vakalatnama while respondents Nos.2 and 3 were proceeded against ex parte. On that date the Court adjourned the case for 11-1-2011. According to the provisions of section 22(2) of the Act the respondent is required to file application under section 22(3) within 10 days of his first appearance in the Rent Tribunal. The 10 days as required by law ended on 2-1-2011.
5. The respondent did not file the application on 2-1-2011 and also on 11-1-2011, the date fixed by the Court, rather he filed the petition on 19-1-2011 i.e. About 27 days after his first appearance in the Court. The petition was evidently filed beyond the period prescribed by law, therefore, the Court should have taken the notice of this fact before granting leave to contest the ejectment petition.
None of the Court has jurisdiction to extend the time beyond 10 days for, filing the leave application, thus the Court had proceeded wholly against the mandatory provisions of section 22(2) of the Act ibid. The learned Rent Controller further committed illegality in treating the written statement as leave application. Subsection (3) of section 22 of the Act provides a form of filing the application seeking leave to contest the ejectment petition with the requirement of filing affidavits along with the same. It is informed by the learned counsel for the petitioner that the respondent did not file any affidavit along with his petition. The purpose for enacting such provision of law appears to require a tenant to make out a ground for contesting the ejectment petition and if the Court deems that the tenant has raised a plausible defence then the Court could allow the leave application, which would subsequently be treated as written statement. While not taking the proceedings in accordance with the spirit of the section the learned Special Judge (Rent) has committed grave illegality which needs interference of this court in the supervisory jurisdiction.
5. For the foregoing, this petition is allowed by declaring the impugned order as illegal, having been passed without lawful authority and of no legal consequence, thus is set aside. The learned Special Judge (Rent), Lahore is directed to proceed to pass an order under section 22(6) of the Punjab Rent Premises Act, 2009 as the leave application was not filed within the prescribed time The parties shall appear before the learned Special Judge (Rent), Lahore on 20-7-2011.