' SYED MUHAMMAD KAZIM RAZA SHAMSI J.---This constitutional petition is directed against an order dated 28-1-2010 passed by Mr. Muhammad Sarfraz Akhtar, learned Addl. District Judge, Faisalabad whereby he maintained the order dated, 16-12-2009 passed by the learned Rent Controller, Faisalabad, whereby the defence of the petitioner was struck off and the final order was passed against him.
2. In the ejectment petition filed by the respondent against the present petitioner on 9-7-2009 the Rent Controller ordered for issuance of proclamation in the newspaper for 29-7-2009. The petitioner appeared in the Court on 29-7-2009 and filed Vakalatnama, whereupon he was directed to file the 'written statement' in the Court on 3-9-2009. The -Court on the adjourned date directed the petitioner to file written reply, which was filed by the petitioner on 27-10-2009. The landlord then filed an application before the learned Rent Controller for striking off the defence of the petitioner on the ground that the leave application was not filed within the prescribed time, as such requested for final order against the tenant. Learned Rent Controller accepted that application and passed eviction order against the tenant, which was assailed in the appeal but the tenant remained unsuccessful there.
3. It is the contention of the learned counsel that no direction for filing the petition for leave to contest was given by the learned Rent Controller, rather it was directed to file written statement, as such the eviction order is bad in law and cannot be implemented against him.
4. On the other hand, learned counsel for the respondent while relying upon the provisions of section 22 of the Punjab Rented Premises Act, 2009 submitted that the Court has no option except to pass final order when the leave application is not filed within the prescribed time:
5. The contention of the learned counsel for the respondent is found to be without substance for the reasons that the petitioner had appeared before the Rent controller in response to the proclamation published in the newspaper, which proclamation did not contain the condition that leave application was to be filed within 10 days. Moreover, it is evident that no notice in the prescribed form had been received by the petitioner that is why the Court ordered the proclamation, thus it was not within the knowledge of the petitioner as to what proceedings he has to undertake by appearing in the Court. In the landmark judgment of this Court reported as PLD 2009 Lahore 469 it was directed that the notice in the prescribed form be issued to the respondent of the case informing him to file leave application within 10 days from the date of his first appearance in the Court and if notices are not sent in prescribed form then question of filing leave application within ten days does not arise. The learned Rent Controller has ignored this fact thus had committed illegality. Furthermore, in such cases, where first appearance is made by respondent in ejectment petition, through proclamation in newspaper, it is duty of the Court to inform respondent, when not appeared through counsel, to file leave application within ten days from that date and should also fix date of ten days for having leave application. The order in this regard should be speaking order. This procedure has not been followed by learned Rent Controller nor noticed by learned first appellate Court, thus judgments rendered are not sustainable in eyes of law.
6. For the foregoing reasons, this petition is allowed by setting aside the impugned orders. The learned Rent Controller is directed to decide the leave application of the petitioner on its own- merits afresh.