ABDUL RAHMAN AURANGZEB, J.:- Through this writ petition, the petitioner has challenged the validity of judgment dated 11.04.2016 passed by learned Additional District Judge, Rajanpur and order dated 21.12.2015 passed by learned Special Judge Rent Tribunal Rajanpur whereby the application for setting-aside exparte proceeding was declined.
2. Succinctly the facts of the case are that respondent No.3 filed an eviction petition against the petitioner in which the petitioner was summoned for 09.12.2 014 but due to his non appearance, exparte proceedings were initiated against the petitioner . The petitioner after getting the knowledge of exparte proceedings, filed an application for setting-aside the order dated 09.12.2014 which was dismissed by the learned trial Court and later on culminated in exparte final order dated 21.12.2015, thereafter the appeal filed by the petitioner also met the same fate. Hence, this writ petition.
3. Contention of learned counsel for the petitioner is that the petitioner was neither served nor any notice was received to him as provided under the provisions of the Punjab Rented Premises Act, 2009. Hence, the service of notice upon the petitioner was not effected. The petitioner prayed that he be permitted to participate in the proceedings and the lis be decided on merits after setting-aside the impugned orders.
4. On the other hand, learned counsel for respondent No. 3 has vehemently opposed the contention and stated that due course for the service of petitione r was adopted by the process serving agency and as such no violation of law has been committed, therefore, the decision rendered by the Courts below are liable to be upheld.
5. I have heard learned counsel for the parties at length and perused the record.
6. The Punjab Rented Premises Act, 2009 promulgated to regulate the relationship of landlord and tenant in respect of rented premises and for this purpose, a mechanism was provided which has to be followed in its true perspective. The special law having its own command and also dictates of law for the execution and conduct of the proceedings. The question in hand relates to the appearance of the petitioner in response to a notice served upon the petitioner which was denied by the petitioner . Before discussing further aspect of the intimation, it is essential to reproduce the relevant provision as envisaged in the ibid Act: Section 21.Appearance of parties and consequences of non-appearance .---(1) If an application under this Act other than application for deposit of rent is filed, the Rent Tribunal shall issue notic e to the respondent in the form prescribed in the Schedule, for appearan ce of the respondent on a date not later than ten days through process server , registered post acknowledgment due and courier service.
(2) A notice under sub-section (1) shall be accompanied by copies of the application and the documents annexed with the application.
(3) If the respondent fails to appear and the Rent T ribunal is satisfied that:
(a) the notice has not been served on the respondent or the respondent is willfully avoiding the service of the notice, the Rent T ribunal may direct service of the notice by:
(i) affixing a copy of the notice at some conspicuous part of the rented premises or residence of the respondent; of,
(ii) publication in the press, electronic media or any other mode; and
(b) the notice has been served, the Rent T ribunal may proceed ex parte and pass the final order .
(4) If an ex parte order is passed against a respondent, the respondent may, within ten days from the date of knowledge, apply to the Rent Tribunal for setting aside the ex parte order along with an application for leave to contest.
(5) If the respondent shows a sufficient cause for his non-appearance, the Rent Tribunal may set aside the ex parte order on such terms as it may deem fit."
7. Perusal of the above referred context derives the mechanism of the service of the respondent on a date fixed by the Tribunal. The language of Section 21(1) is clear in terms that the process of appearance for a summary case shall be made not only by the Process Server but in addition to this, the notice is to be sent to the respondent through registered acknowledgement due and courier service. The notice, as prescribed in the schedule, shall contain the copies of application and the documents relied upon, annexed with the ejectment petition. On scrutiny of the notice, which was allegedly served upon the petitioner (tenant) reflects that the notice sent to the petitioner has not fulfilled the above mentioned requirement of law and only copy of ejectment petition was annexed with the notice. However , accompanied document s filed alongwith the ejectment petition were not sent to the petitioner . In this way , violation of Section 21(2) was committed.
8. The other glaring aspect missing in the process of service is also visible from the order sheet that the ejectment petition was filed on 20.11.2014 when the learned Special Judge Rent specifically ordered to summon the petitioner (tenant) through notice alongwith postal envelope containing acknowledgment due card as directed under the provision of Section 21(1). On the very next date i.e. 09.12.2014 the respondent produced a copy of postal receipt and the Court observed that the petitioner had been duly served according to the report of Process Serving Agency, and the exparte proceedings were initiated against the petitioner. The intention of legislature while attaching the condition of registered post acknowledgment due and courier service is not merely procedural but the real intention behind is that as the rent matters relates to summary proceedings, so the effective service must be accompanied with acknowledgment due card. The purpose of acknowledgment due card is that the actual service upon the respondent is to be effected and in response, if the respondent does not opt to appear in the Court, the Court has option to proceed against him exparte. Although the learned trial Court on 09.12.2014 got receipt of postal envelope cover, but did not observe about the status of acknowledgment due card whether the same was served upon the petitioner (tenant) or otherwise. The factor of non-submission of acknowledgment due card was completely overlooked by the learned Special Judge Rent when the petitioner has categorically denied his personal service and also stated in his application which was supported with an affidavit that he was neither served personally through any notice nor any other intimation of filing of the ejectment petition against him. In these state of affairs it was the obligatory for the Courts below to examine whether the requirement of service of notice upon the petitioner(tenant) as per Section 21 of the ibid Act was fulfilled or not. But in the instant case when the service of respondent was not duly effected as provided in the law, it cannot be treated as a valid intimation.
9. On further examination of the alleged notice served upon the petitioner , there is no mentioning of any I.D. Card number of either of the petitioner or witnesses from where it could be established that the petitioner was the same person to whom intimation has been sent through the notice. Therefore, without any proper identification of the alleged witnesses as well as the person who was served with notice, cannot be considered valid. These all aspects were completely oversighted by both the Courts below .
10. The learned trial Court has also not examined that the specification of rented house mentioned in the ejectment petition without having any number of the house and merely stated that the house was situated in khatta No. 437 with share of 15/287 share. This location of the residence of petitioner for the purpose of service cannot be identified with the mentioned specification. The petitioner who is residing in a densely populated area of city where the streets, roads and other nearby famous places must be available. But, deliberately on the notice, which was allegedly served by the process server , even do not depict any exact location of the residence. Astonishingly , it is merely written on the notice that the petitioner has been served personally . Without ascertaining the exact location of house where the petitioner resides, it is not possible for the process server to identify and that too without any I.D. card or without associating any notable person of the locality , therefore, the service upon the actual person cannot said to be ef fected.
11. Furthermore, the application filed by the petitioner is supported with an affidavit but there is no counter affidavit submitted on behalf of the respondent No.3. Non-submission of counter affidavit regarding the allegations levelled in the application for setting-aside the exparte order also shows that the respondent No. 3 is unable to counter the version of the petitioner . If a counter affidavit was not filed in support of the contention then it means that the version asserted by the petitioner shall be presumed unrebutted. Hence, the learned trial Court did not observe the myth of provisions of Section 21(3)(b) of ibid Act and wrongly accepted the service of notice upon the petitioner as correct, and proceeded with exparte order, which is against the law and fact and cannot be allowed to be sustained on the principle of "A communi observatia non est recedendum".
12. The learned trial Court as well as the appellate Court also held that the application for leave to contest was not filed alongwith application for setting-aside exparte order and for this sole reason, the application was rejected. A bare reading of the provision of Section 21(4) of ibid Act would show that the word "may" used is not mandatory in nature rather the same is directory in nature. A mandatory provision is one, the omission to follow which renders the proceedings to which it relates to void, while a directory provision is one the observance of which is not necessary to the validity of the proceedings. Suffice it to say that the provisions of Section 21(4) of the ibid Act with the word "may" would provide the respondent to file leave to contest alongwith the application for setting-exparte proceedings but such direction is not mandatory in nature, hence, mere non-filing of the application for leave to contest is not fatal for adjudication of application for setting aside exparte proceedings. My respectful reliance is placed upon the judgments reported as "Ghulam Hassan vs. Jamshaid Ali and others" (2001 SCMR 1001), In the matter of: Human Rights cases os.4668 of 2006, 1111 of 2007 and 15283-G of 2010 (PLD 2010 SC 759), "Zaffar Iqbal vs. Mst.
Maqsood Begum and 2 others" (PLD 1987 Azad J&K 156) and "Ehsan Abbas vs. Khush Abbas and others" (PLD 2011 Lahore 31 1).
13. Moreso, the Court cannot pass an order of its liking, solely on the basis of its vision and wisdom, rather it is bound and obliged to render decision in accordance with law and the law alone. In the case in hand, the orders passed by both the Courts below are in violation of express provision of law, theref ore, the powers of High Court to interfere in such an order in its constitutio nal jurisdiction, obviously on the touchstone of the grounds laid down and the parameters set forth in Article 199 of the Constitution, is permissible. In this respect the following enshrined dictum of apex Court can be relied: "Muhammad Anwar and others vs. Mst. Ilyas Begum and others". PLD 2013 Supreme Court 255 and "Abdul Majeed Khan through L.Rs. and others vs. Ms. Maheen Begum and others" 2014 SCMR 1524 .
14. Epitome of above discussion is that the instant writ petition is allowed . Impugned orders dated 11.04.2016 and 21.12.2015 alongwith order dated 09.12.2014 are set-aside and the ejectment petition filed by respondent No. 3 shall be deemed pending before the learned Special Judge (Rent), Rajanpur . Parties are directed to appear before the learned Special Judge (Rent), Rajanpur on 25.05.2017.