MIRZA VIQAS RAUF, J. --- The petitioner namely C Sajjad Nazir by way of this constitutional petition sails vires of order dated 25th of October, 2016. whereby E application filed by respondents No, 2 & 3 (hereinafter referred as "respondents") for submission of affidavits-il evidence, was allowed.
2. Precisely the facts. necessary for adjudicate of instant petition are' that "respondents" filed an ejectme petition under Section 15 of The Punjab Rented PremisE Act, 2009 (hereinafter referred as "The Act, 2009') f eviction of the petitioner. The ejectment petition was resisted by the petitioner by filing an application for leave to defen the same was accepted whereafter necessary issues we framed and the case was fixed for evidence "respondents". The "respondents?' moved an application submission of their affidavits-in-evidence which was contested by the petitioner. however. same was allowed order dated 25th of October, 2016, hence this petition.
3. Learned counsel for the petitioner which referring Section 19 of "The Act, 2009" submitted that terms 'of sub-section (4), the "respondents". being landlords were obliged to submit their affidavits alongwith eviction application. He added that non-submission affidavits precluded the "respondents" to move application at a belated stage. Learned counsel contend that impugned order is not tenable under the law.
4. After having heard learned counsel for the petitioner at some length, I have examined the available record in the light thereof.
5. The ejectment application was filed by "respondents" on 5th of May, 2005 which was resisted by the petitioner, by filing an application for leave to contest in terms of Section 22 of "The Act, 2009".
The application was initially partly allowed vide order dated 4th of January, 2016 by the Special Judge Rent. Lahore, however. the petitioner feeling aggrieved from the said order filed an appeal under Section 28 of "The Act, 2009" before the learned Additional District Judge, Lahore. The appeal was accepted vide order dated 15th of June, 2016 with the following observations:-- "6. In view of the above facts, this appeal is accepted and impugned order is set aside while accepting leave to appear and defend in toto in the subject enactment petition. Learned Trial Court is directed to decide vide single order whole enactment petition after recording of evidence of both parties. Copy of this order be certified to the learned Trial Court for compliance.
No order as to costs."
It is evident from the record that the "respondents" moved an application on 18th of January, 2016 immediately after framing of issues, seeking permission to submit affidavits-in-evidence. The application was though contested by the petitioner, however, same was allowed by way of impugned order.
6. There is no cavil that in terms of sub-section (4) of Section 19 of "The Act, 2009", the landlord has to submit his own affidavit as well as affidavits of his witnesses alongwith the eviction application but it is not inflexible rule rather it is rule of procedure to streamline the proceedings before the Tribunal in order to avoid unnecessary delay.
7. So far contention of learned counsel for the petitioner that word "shall" used in the said provision make the same mandatory, suffice to observe that mere use a word "shall" in a provision does not make the same mandatory in all eventualities. The litmus test to determine the mandatory nature of a provision is outlined by the Hon'ble Supreme Court of Pakistan in the case a "GHULAM HASSAN v. JAMSHAID ALI and others" (200 SCMR 1001) and held as under:--- "13. It is an established principle of law that when the Legislature has provided a penalty/consequence: for the non-compliance the said- provision would be mandatory in nature and where such consequence: are not provided it would be termed as directory Reference in this behalf is made to the case a Maulana Nur-ul-Haq v. Ibrahim Khalili (2000 SCMF 1305) where it was held as under:--- "There is another aspect of the matter to which it is necessary to refer to Section 32 of the Ac appears to be mandatory, in view of the expression 'shall' used therein, but in fact is directory for want of a penal clause. No doubt there exists no faultless acid test or a universal rule for determining whether a provision of lay is mandatory or directory and such determination by and large depends upon the intention of Legislature and the language it which the provision is couched but it is by move firmly settled that where the consequence a failure to comply with the provision is no mentioned the provision is directory and when the consequence is expressly mentioned the provision is mandatory. It was held in Nia Muhammad Khan v. Mian Fazal Raqeeb (PLC 1974 SC 134) that as a general rule a statute is understood to be directory when it contain; matters merely of direction but it is mandatory when those directions are followed by an express provision that in default of following them the facts shall be null and void. In Major Shujat Ali v. Mst. Surrya Begum'(PLD 1978 SC, (AJ&K) 118) it was held that in the absence of a penalty for failure to follow the prescribed procedure the provisions are to be taken to be directory and not mandatory. The provisions of Section 32 of the Act being directory cannot in manner override or dilute the provisions of Section 31 of the Act which are mandatory by all standards."
Reference is also made to the case of Mafizullah v. Menai Ullah and others. (PLD 1963 Dacca 318) wherein it was observed as under:--- "9. When a statute is passed for the purpose of enabling something to be done, it may be either a mandatory enactment, or a directory one, the difference being that a mandatory enactment must be obeyed or fulfilled exactly, but is sufficient, if a directory, enactment be obeyed or fulfilled substantially. If a mandatory intention 'of the Legislature having regard to the whole scope and purposes of the enactment to be construed."
The same view was further reiterated by the Hon'ble apex Court in the matter of: HUMAN RIGHTS CASES Nos, 4668 OF 2006, 1111 OF 2007 and 15283-G OF 2010 (PLD 2010 Supreme Court 759).
8. It is thus clearly manifest from the above that unless same consequences of non-compliance of the provision are provided in the statute, the same 'cannot be termed as mandatory despite use of word "shall" in the same. Even the words "may' and "shall' are also interchangeable.
9. The above-mentioned view is also fortified by the judgment of this Court in the case of "EHSAN ABBAS v. KHUSH ABBAS and others" (PLD 2011 Lahore 311).
10. Record is clearly indicative of the fact that application was moved by the "respondents" immediately after framing of issues and same does not cause any prejudice to the petitioner. The object of inserting any provision of law in the statute is always to promote the ends of justice and no such provision can be used to stifle the rights of the parties on the basis of technicalities. I am thus of the considered opinion that learned Rent Tribunal has rightly allowed the application filed by "respondents" and there is no illegality or perversity in the impugned order, warranting interference by this Court in exercise of Constitutional jurisdiction. The instant petition is thus without any merits, reluctantly same is dismissed in limine.