Petitioner, Inam-ul-Haq, through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 has called in question the order dated 30.7.2011' passed by the learned Rent Controller whereby petitioner's application under Section 22(6) of the Punjab Rented Premises Act, 2009 was dismissed.
2. Briefly the facts of the case are that the petitioner filed an application for eviction of the.
Respondent No, 1 from the rented premises on the ground of default in payment of rent and expiry of tenancy period. The learned Rent Tribunal issued notice to Respondent No,
1. The Respondent No, 1 on 07.07.2011 through counsel entered appearance before the learned Rent Tribunal and sought time for submissions of written reply. On 26.7.2011, the Respondent No, 1 submitted written reply to the ejectment petition. Simultaneously, on the same date the petitioner also filed an application under Section 22(6) of the Punjab Rented Premises Act, 2009 for passing final order as Respondent No, 1/ tenant failed to file application for leave to contest within the stipulated time. The learned Tribunal vide order dated 30.7.2011 dismissed the application. Hence, this petition.
3. Learned counsel for the petitioner submits that Respondent No, 1 under Section 22(2) of the Punjab Rented Premises Act, 2009 was bound to file an application for leave to contest within a period of 10 days of his first appearance in the learned Rent Tribunal. In the instant case, the Respondent No, 1 entered appearance on 7.7.2011 and filed written reply on 26.7.2011 i,e, after a lapse of 10 days and, therefore, in these circumstances the Rent Tribunal had no option but to pass final order as it could neither condone delay nor entertain time-barred reply or application for leave to contest the ejectment petition. Conversely, the learned counsel for Respondent No, 1 submits that no notice in the prescribed form was received by the Respondent No, 1/tenant and, therefore, on first appearance it was the duty of the learned Rent Tribunal to inform the tenant to file application for leave to contest within 10 days. He further urges that the learned Rent Tribunal did not pass any speaking order to the above effect and, therefore, the order dated 30.7.2011 passed by the learned Rent Tribunal is valid in all respects. Learned counsel for the Respondent No, 1 also contends that in view of Section 28(2) of the Punjab Rented Premises Act, 2009 the instant petition is not maintainable as the order impugned therein is an interlocutory order passed by the Rent Tribunal.
4. I have heard the learned counsel for the parties and perused the record.
5. The petitioner being a landlord filed an application under the provisions of the Punjab Rented Premises Act, 2009 for the eviction of Respondent No, 1/tenant from the rented premises. According to Section 22(2) of the Punjab Rented Premises Act, 2009 a tenant is required to file an application for leave to contest within a period of 10 days from the date of first appearance in the Rent Tribunal.
The perusal of the order-sheet of Rent Tribunal (Annex.B-1) shows that the Respondent No, 1 for the first time appeared before the learned Rent Tribunal on 7.7.2011. Malik Waqas Bashir, Advocate filed power of attorney on behalf of Respondent No, 1 and sought time for filing written reply. The case was accordingly adjourned to 13.7.2011. The Respondent No, 1 did not submit reply on 13.7.2011 and resultantly the case was adjourned to 20.7.2011. Thereafter, the Respondent No, 1 on. 26.7.2011, filed a written reply to the ejectment application. The written reply filed by Respondent No, 1 was patently beyond the period of 10 days as prescribed in Section 22 (2) of the Punjab Rented Premises Act, 2009. This Court in the case of Tayyab Hussain Vs. Rent Controller, Gujrat and others (PLD 2012 Lah.
41) has held that the Rent Tribunal does not enjoy any jurisdiction to condone the time for filing application for leave to contest. Thus, the learned Rent Controller exercised jurisdiction in entertaining written reply (or application for leave to contest ejection petition) which is not vested in it under mandatory provisions of the Statute. For the sake of emphasis, the learned Rent Controller exercised jurisdiction in entertaining written reply (or application for leave to contest ejection petition) which is not vested in it under mandatory provisions of the Statute. For the sake of emphasis, I reiterate the observations recorded in the above cited precedent, that if the practice of entertaining time-barred petition under Section 22(2) of the Punjab Rented Premises Act, 2009 is not curbed, then it would defeat the spirit of legislation.
6. Now, I advert to the objection raised by the learned counsel for the Respondent No, 1 qua the maintainability of the instant petition. Learned counsel for Respondent No, 1 submits that the order impugned in this petition is interlocutory and, therefore, the same cannot be challenged by way of constitutional petition as allowing such an order to be impugned by way of constitutional petition would amount to negate the provisions of Section 28(2) of the Punjab Rented Premises Act, 2009 which do not provide for an appeal against an interlocutory order. It is correct that interlocutory order under Section 28(2) is not amenable to appeal but if the same is arbitrary or capricious or against the well-settled proposition of law, this Court is bound to interfere with the same in order to obviate miscarriage of justice. The principle of noninterference in interlocutory orders of the Courts below by this Court is a matter of rule and refusal is an exception. The analysis of the various precedents on the scope of the High Court's powers under Articles 199 and 203 gives the following principles:--
(a) Interlocutory orders, passed by the Courts subordinate to the High Court, against which remedy of appeal or revision has been excluded are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court;
(b) Certiorari, under Article 199 of the Constitution, is issued for correcting gross errors of jurisdiction i,e, when a subordinate Court is found to have acted (i) without jurisdiction--by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction--by overstepping or crossing the limits of jurisdiction or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice;
(c) Supervisory jurisdiction under Article 203 of the Constitution is exercised for keeping the subordinate Courts within the boundaries of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction; and
(d) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (1) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby.
I have already held that the learned Rent Tribunal has passed the impugned order in .exercise of jurisdiction which was not vested in it under the mandatory provisions of Section 22(2) of the Punjab Rented Premises Act, 2009 and, therefore, the same in view of above stated C principles of law can be assailed before this Court by invoking Article 199 of the Constitution of Islamic republic of Pakistan, 1973. Thus, the objection raised by the learned counsel for Respondent No, 1 is without any substance and the same is over-ruled.
7. In view of above, this petition is accepted by setting aside order dated 30.7.2011 passed by the learned Rent Tribunal and the same is declared to have been passed without lawful authority and of no legal effect. The learned Special Judge Rent/Rent Tribunal is directed to proceed with the matter and pass an order under Section 22(6) of the Punjab Rented Promises Act, 2009.