' MUHAMMAD FARRUKH IRFAN KHAN, J.---Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioner calls in question the validity of impugned orders dated 30-1-2010 and 22-7-2010 passed by the learned courts below.
2. Facts of the case in brief are that respondents Nos.3 to 4 filed an ejectment petition against the petitioner for his eviction from demised property fully described in para No,1 of the petition. The petitioner through counsel entered appearance on 5-12-2009 but he filed leave to contest after the prescribed period of ten days. The learned Special Judge Rent vide order dated 15-1-2010 dismissed the application of the petitioner for leave to defend as it was beyond the statutory period of limitation and after recording the evidence of respondent No,3 passed final order of his eviction from the demised premises vide impugned order dated 30-1-2010. Being aggrieved the petitioner filed appeal before learned Appellate Court who vide impugned judgment dated 22-7- 2010 dismissed the same. Against which the petitioner has filed instant Constitutional petition.
3. Learned counsel for the petitioner submits that both the courts below erred in law while passing impugned orders; that no notice in terms of section 21(1) of the Punjab Rented Premises Ordinance, 2007 was issued to the petitioner; that according to the aforesaid provisions of Ordinance ibid it is mandatory requirement that the notice should not only be in prescribed form but also accompanied by the copy of application and documents annexed with the application enabling the respondent in an eviction petition to file leave to contest, within 10 days; that filing of an application for leave to defend under section 22 of the Ordinance ibid is also subject to the condition that the procedure for service of respondent as envisaged in the law is complied with that it is settled principle of law that when the law requires a particular thing to be done in a particular manner the same must be done accordingly; that when a particular procedure has not been adopted on that basis the petitioner cannot be penalized. Relies on Ijaz Ahmad v. Suriva Akhtar and others (PLD 2011 Lahore 42), Muhammad Amir Habib v. Zaheer Ahmad and 2 others (PLD 2012 Lahore 107), Younis Siddique v. Mst. Tahira Jabeen (PLD 2009 Lahore 469) and Sharafat Kaleem v. Additional District Judge, Bahawalnagar and 11 others (2013 CLC 185). Adds that one Abdul Rehman Jaral Advocate entered appearance on behalf of the petitioner without his instructions as such the time gained by the said counsel could not be counted against him for the purpose of limitation; that the reason so disclosed by the petitioner was sufficient to condone the delay but both the courts below while passing impugned orders illegally rejected his application for leave to defend; that it is settled principle of law that every matter should be decided on merits and no one should be condemned unheard; that the impugned orders are nullity in the eye of law as such liable to be set aside.
4. Conversely, learned counsel for respondent No,3 submits that the impugned orders are well reasoned; that the petitioner had not filed application for leave to defend within statutory period as such the same was rightly declined by the learned courts below and no occasion arises for this Court to intervene with the same in its Constitutional jurisdiction.
5. I have heard the arguments advanced by the learned counsel for the parties and gone through the record.
6. Main thrust of the arguments of learned counsel for the petitioner is that non-service of the petitioner in accordance with the provision of section 21(1) of the Ordinance ibid is fatal. It 'is evident from the record that the learned Rent Tribunal declined his application for leave to defend on 15-1- 2010 being beyond the statutory period of limitation but neither the petitioner further challenged the said order at the relevant time nor when the final order was passed against him. Even in appeal the petitioner had not raised any objection as to his non-service in accordance with the provisions of section 21(1) of the Ordinance ibid, therefore, he cannot be allowed to raise this plea for the first time in Constitutional petition. Reliance is placed on case reported as Malik Abdul Aziz Awan and another v. Rana Maqbool Ahmad Khan and others (2012 SCMR 91), where a tenant raised objection as to the maintainability of ejectment petition which objection was turned down by the learned Rent Tribunal prior to passing of final order but the tenant did not assail the said order before the Appellate Court at the time of challenging the final order and the Hon'ble apex Court observed as under:-- "As far as the first submission is concerned, suffice it to say that the objection of the petitioner about the maintainability/ entertainment of the eviction application of the respondent was decided by the Tribunal vide order dated 19-1-2010. This order was not further challenged through any constitution petition, furthermore, when the final ejectment order dated 16-3-2010 was passed by the Tribunal the petitioner in appeal before the Additional District Judge did not challenge order dated 19-1-2010. The argument, that it was assailed in the constitution petition at the time of challenging the final order of the Rent Tribunal and the appellate forum; suffice it to say that such would not be relevant, as the order had to be challenged at the first available opportunity i,e, when the petitioner had filed appeal against the final order of eviction dated 16-3-2010."
7. The case law relied upon by the learned counsel for the petitioner would have relevance in the present case, if an objection was raised by the petitioner regarding non-compliance of section 21(1) of the Ordinance ibid. Seeking guidance from the aforesaid judgment of the Hon'ble apex Court, this Court has no hesitation in holding that now after lapse of more than 4 years and nine months of passing the final eviction order, the petitioner is barred to raise this objection. If the impugned orders are set aside on this technical flaw at this stage it would not only defeat the ends of justice but also the purpose of enacting special law would not be achieved.
8. According to subsection 6 of Section 22 of the law ibid in case of non-filing of application for leave to defend by a respondent, it is obligatory upon the Rent Tribunal to pass final order.
Therefore, in the absence of leave application, the learned Rent Controller was fully justified in passing of impugned order for eviction of the petitioner which has rightly been maintained by the learned lower Appellate Court. Learned counsel for the petitioner has failed to point out any illegality or irregularity in the impugned orders calling for interference by this Court.
9. Resultantly, this petition being without any substance is dismissed.