' SYED MUHAMMAD KAZIM AZA SHAMSI, J.---Today, the case was fixed for arguments when the learned counsel for the respondents raised preliminary objection that an application filed under section 12(2); C.P.C. By the petitioner before the learned Special Judge (Rent), Lahore was not entertainable which was dismissed vide order dated 27-4-2009 and the petitioner instead of filing an appeal has approached this court through the instant constitutional petition, which is also not maintainable.
2. In this respect, it is submitted by learned counsel for the respondents that an ejectment petition was filed against the petitioner in which the court directed him to file petition to contest the ejectment petition which was not filed, rather a written statement was placed, on record that too after ten days, as prescribed by section 22 of Punjab Rented Premises Ordinance, 2007 as such, the court proceeded to strike of the defence and proceeded to pass an ejectment order. He further contended that the petitioner instead of filing an appeal as required by section 28 of the Ordinance
(ibid) filed 'an application under section 12(2), C.P.C. With the learned Special Judge (Rent), which was dismissed by the court on the ground that no element of fraud and. Misrepresentation existed in the order of ejectment. It is the contention of the learned counsel that there was an adequate and efficacious remedy in the form of appeal which has not been availed by the petitioner and has-directly challenged the order through the instant constitutional petition, which is not maintainable. In this connection, learned counsel has placed reliance upon the cases of Farzand Raza Naqvi and 5 others v. Muhammad Din through legal heirs and others (2004 SCM R 400), Happy Family Associate through Chief Executive v. Messrs Pakistan International Trading Company (PLD 2006 SC 226) and Securities and Exchange Commission of Pakistan v. Mian Nisar Elahi and others (2009 SCM R 1392).
3. On the other hand, learned counsel Mr the petitioner submitted that when the law has provided two remedies to the petitioner for assailing an adverse order, it is the choice of the petitioner to avail any one of the such remedy thus, the petitioner had availed the remedy of challenging the ejectment order through an application under section 12(2), C.P.C. He further argued that the respondents had committed fraud 'with the petitioner as such, application under the said provision was maintainable before the learned Special Judge (Rent). It is added that against dismissal of an application filed under section 12(2), C.P.C. In the rent matter no remedy of appeal or revision is provided as such, the constitutional petition in this court is maintainable. In this connection, learned counsel has cited the cases of Munir Ahmad Moeen v. Mst. Mumtaz Begum (1990 M LD 1689), Mirza Allah. Rakha v. Faheem-ud-Din Aziz. And 10 others (2011 CLC 452), K.E.S.C. Labour Union through President another v. Federation of Pakistan through Secretary, Ministry of Law, Justice and Human Rights, Islamabad and 2 others (2006 PLC 186), M.G. Gazdar (deceased) through his 4 legal heirs v. Manzoor Hussain (1985 CLC 2438), Samson Sircar v. Rehman' Khalil and another 2003 CLC 892, Muhammad Rashid v. Muhammad javaid Butt and others 2005 CLC 1153 and Shehzad Javed v.
Jamshaid Akhtar and others (2011 CLC 1251).
4. The parties have been heard at length on, the preliminary objection raised by the learned counsel for the respondent.
5. It is noticed from the record that the petitioner could not file petition to contest the ejectment petition within, the time prescribed by the Ordinance (ibid), thus, the court proceeded to pass an ejectment order against the petitioner. The petitioner instead of filing an appeal as required by statute itself preferred an application under section 12(2), C.P.C. Against ejectment order which remedy has been provided by the provision of General Law. It is rule of prudence that provisions of special law override the general law. It is also settled principle of law when a statute provides manner in which certain acts are to be - performed then it is mandatory to perform acts in such manner. It is observed that Rent Law directs litigant parties to avail remedy as provided in statute and other remedies provided in different law could be availed in circumstances enshrined in that law. Thus, it was obligatory for the petitioner to avail remedy provided in section 28 of Ordinance (supra).
6. The plea of the learned counsel for the petitioner that the petitioner had exercised her option to avail one remedy out of the two is equally untenable for the reason that the Punjab Rented Premises Ordinance, 2007 itself provides the remedy of appeal in the case where, an ejectment order is passed. In this situation, no 'other option can be exercised by any party except the one which has been specifically provided by the statute itself. The case cited by the learned counsel for the petitioner no doubt provides that an application under , section 12(2), C.P.C. Can be filed against an order passed in the ejectment petition but it also provided that the elements of fraud and misrepresentation should be alleged in that petition. When the application filed under section 12(2), C.P.C. By the petitioner has been kept in juxtaposition with the ejectment order passed by the learned Rent Controller, it follows that the order of the ejectment was neither procured fraudulently nor any misrepresentation was made when the same was passed. It was a case where the court had exercised its jurisdiction under the statute when it found that the petition to contest the ejectment had not been filed within the statutory time thus, the court proceeded to strike of the defence of the petitioner followed by an ejectment order. Accordingly, it can be observed that order dated 5-7-2008 was neither procured fraudulently nor any misrepresentation was made before the court. Needless to add that court had jurisdiction to pass such order. In these circumstances, the petition under section 12(2), C.P.C. Was not 'the remedy for the petitioner for challenging vires of order dated 5-7-2008 rather she was required to challenge the ejectment order by filing an appeal. In this situation, this court does not feel any hesitation in holding that in such like circumstances the petitioner has to follow the statutory provisions of relevant law and any extraneous step taken by the petitioner would not be of any help to her.
7. It has rightly been argued by the learned counsel for the respondents that the constitutional petition is not maintainable where an efficacious and adequate remedy has been provided by the law. The appeal 'under section 28 of the Ordinance (ibid) was an efficacious and adequate remedy for the petitioner to challenge order of her ejectment which she missed and proceeded to seek the remedy which did not make out from the facts of the case. In this situation, this court has no other option except to hold that the petitioner had the remedy of appeal to challenge the ejectment order which has not been avail by her, as such, this constitutional petition is not maintainable.
8. As observed above, the application under section 12(2), C.P.C. In the circumstances of this peculiar case was not maintainable nor is the constitutional petition as such, the objection raised by the learned counsel for the respondent is upheld. Resultantly, this petition stands dismissed being not maintainable.