Through instant petition under Article 199 of The Constitution of The Islamic Republic of Pakistan, 1973, the petitioners assail the vires of judgment dated 13 November, 2017, whereby the learned Additional District Judge, Rawalpindi Camp at Kahuta, while dismissing their appeal affirmed the order dated 22 April, 2017 passed by the learned Special Judge (Rent), Kahuta District Rawalpindi, resulting into an order of eviction of the petitioners from the suit premises.
2. The facts in brief necessary for adjudication of instant petition are that respondent No.3 (hereinafter referred as "respondent") moved an application seeking ejectment of the petitioners from shop situated at Mator Road Kahuta averring therein that the petitioners have obtained the said shop from the "respondent" on rent but they have failed to tender rent since May, 2015. The ejectment petition was allowed by way of order dated 22 April, 2017 and the petitioners were directed to hand over the vacant possession of the suit shop within two months to "respondent", who was also held entitled for the recovery of arrears of rent @ Rs.9,000/- from May, 2015 till eviction of the petitioners. The petitioners, feeling dissatisfied from the said order though preferred an appeal before the learned Additional District Judge, Rawalpindi Camp at Kahuta but the same was dismissed by way of impugned judgment dated 13 November, 2017.
3. Learned counsel for the petitioners submitted that the petition before the Civil Court was not competent and to this effect a preliminary objection was raised. He added that the learned Civil Judge proceed with the matter, while treating the ejectment petition as a suit. Learned counsel contended that the petitioners were never served as required under Section 21 of The Punjab Rented Premises Act, 2009. It is emphatically argued that the ejectment order was passed without adhering the mandatory provisions of law, which is coram non judice. Learned counsel emphasized that even the learnedth nd nd th Additional District Judge has failed to apply its judicial mind to the facts of the case and the appeal was dismissed in an illegal and unlawful manner.
4. On the contrary, learned counsel for "respondent" vehemently defended the impugned judgment. He added that eviction order was passed after fulfilling all the codal formalities. Learned counsel contended that the petitioners have failed to move an application for leave to contest, which was mandatory for resisting the ejectment petition. Learned counsel emphasized that there are concurrent findings, which are based on proper appraisal of evidence and constitutional jurisdiction is unwarranted under the circumstances.
5. After having heard learned counsel for both the sides at considerable length, I have also perused the record in order to properly appreciate their respective contentions.
6. The application seeking eviction of the petitioners was filed on 15th March, 2016, which was entertained by the learned Civil Judge as a suit for possession and accordingly same was allocated a number of civil suit. It is apparent from the record that while procuring the attendance of the petitioners though summons were sent but the same were not in accord with the mandate of Section 21 of The Punjab Rented Premises Act, 2009 (hereinafter referred as "The Act, 2009"), For ready reference and convenience Section 21 is reproduced below :- "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 notice to the respondent in the form prescribed in the Schedule, for appearance of the respondent on a date not later than ten days through process server, registered post acknowledgement 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 Tribunal 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 Tribunal 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; or
(ii) publication in the press, electronic media or any other mode; and
(b) the notice has been served, the Rent Tribunal may proceed ex-parte and pass the final order .
(4) If an ex-parte order is passed again st 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 deems fit.
(6) The parties may appear in person or through a recognized agent in the Rent Tribunal.
(7) If on a date fixed, the applicant fails to appear , the Rent Tribunal may dismiss the application.
(8) If an application has been dismissed in default of the appearance of an applicant and an application for restoration of the same is made within thirty days of the dismissal order , the Rent Tribunal may restore the application on such terms as it may deem appropriate." (Underlining supplied for emphasizes)
Bare perusal of the above referred provision of law reveals that for procuring the attendance of respondent in the ejectment petition the Rent Tribunal shall issue notice in the form prescribed as per schedule appended with "The Act, 2009" for a date not later than ten days through process server, registered post acknowledgment due and courier service. Sub-section (2) envisages that such notice should be accompanying the copies of application and the documents annexed with the same whereas sub-section 3 provides the consequences of failure by respondent to appear.
7. There is no cavil that the respondent(s ) (in the ejectment petition) is(are) obliged in terms of Section 22 of "The Act, 2009" to submit application for leave to contest, which shall be filed within ten days from his(their) first appearance in the Rent Tribunal but the accumulative effect of above referred provisions is that consequences provided in Section 22 would only come into play when the respondent(s) is(are) served with the process as required under Section 21 of "The Act, 2009". Admittedly due compliance was not made to the said provision of law.
It is clearly evident from the record that learned trial court, seized with the matter , treated the petition, seeking eviction of the petitioners as a suit. The petitioners entered their appearance on 04 June, 2016 before the learned Civil Judge and while adjourning the case on his request, the proceedings were adjourned for submission of written statement. As already observed that the petitioners were never served in accord with Section 21 of "The Act, 2009", so they while treating the proceedings as ordinary suit submitted their written statement as per direction of the court. An application under Order VII Rule 11 of The Code of Civil Procedure (V of 1908) was also moved by the petitioners, seeking rejection of plaint but the same was dismissed vide order dated 05 December , 2016.
8. Record reveals that without realizing the actual status of the proceedings, the learned court adjourned the matter on 10 December, 2016 for arguments on application for leave to contest. On the next date i.e. 16 December, 2016, the right of the petitioners was struck off and the proceedings were further adjourned to 03 January , 2017. The relevant extract from the said order is reproduced below , which is of significance importance :- "4. Perusal of record reveals that petitioner is seeking eviction of the respondents from the shop in question and in the caption of the case, he has clearly mentioned as "Application for possession through ejectment". So, in this respect the arguments of learned counsel for the respondents could not be appreciated. However , before parting with the order it is necessary to reproduc e the relevant section of the Punjab Rented Premises Act, 2009 which is as under:- Section-22: Leave to contest.
(i) A Rent Tribunal shall not allow a respondent to defend the application unless he obtains leave to contest.
(ii) Subject to this Act, a respondent shall file an application for leave to contest within ten days of his first appearance in the Rent Tribunal.
5. Admittedly , respondent Zafar Iqbal made his first appearance on 04.06.2016, but he did not file an application for leave to contest within ten days as prescribed in the supra mentioned provision of relevant law. Therefore, in view of the above stated facts and as the respondents have themselves defaulted in obtaining leave to contest within the statutory period, hence, their right in this respect is, hereby, struck of.
6. So far as the request of petitioner to pass final order qua the eviction of respondents is concerned, the available material is not sufficient to pass a final order. Thus, the petitioner is directed to produce his evidence on 03.01.2017."
It is manifestly clear from the above that on one hand, the learned trial court proceeded to struck off the defence of the petitioners and on the other hand, adjourned the matter on account of non- availability of sufficient material to pass a final order, which is in negation of Section 22 of "The Act, 2009".
10. There is no cavil that thereafter "respondent" moved an application seeking permission to tender affidavit of the witnesses, which was allowed subject to payment of costs of Rs.2,000/- vide order dated 28 February, 2017. This followed the ejectment order, which was passed on 22 April, 2017 directing the petitioners to hand over the vacant possession of the demised shop within two months to the "respondent".
11. After having gone through the available material, I am of the considered view that the learned trial court, while taking cognizance of the proceedings treated the eviction petition as an ordinary suit and after assigning the same a number of civil suit proceeded with the same as a Civil Court.
Even the mandatory provisions of Sections 21 & 22 of "The Act, 2009" were not taken into considerations and there is every possibility that the petitioners were under the impression that .they are defending the civil suit.
When once court itself treated the petition as a civil suit and proceeded as such, the petitioners were surely taken by surprise by the court thereafter when the court shifted to the provisions of "The Act, 2009". Law is well settled that due to the act of the court nobody can be penalized. Before invoking the penal provisions contained in "The Act, 2009", it was obligatory for the learned court, seized with the matter, to adhere theth th th th rd th nd mandatory provisions of law as contained in Section 21 of "The Act, 2009". The ejectment order was thus passed in oblivion of the mandatory provision of law, which was not tenable at all. Reliance in this respect can be placed on Constitution Petition No.127 of 2012, H.R.C. No.40927- S of 2012 Civil Miscellaneous Appeal No.176/2012 in Constitution Petition No.Nil of 2012 "BEGUM NUSRAT ALI GONDA V.FEDERA TION OF PAKIST AN and others" (PLD 2013 Supreme Court 829 ) and "MUHAMMAD IJAZ and another versus MUHAMMAD SHAFI through L.Rs." (2016 SCMR 834 ).
12. Though the petitioners have assailed the order dated 22 April, 2017 through an appeal but the learned Additional District Judge without adverting to the above legal aspects going to the root of the case dismissed the appeal without applying his judicial mind to the facts by way of impugned judgment.
13. For the foregoing reasons, I am inclined to allow this petition, resultantly judgment dated 13th November, 2017 passed by learned Additional District Judge, Rawalpindi Camp at Kahuta as well as order dated 22nd April, 2017 passed by learned Special Judge (Rent), Kahuta are set aside, being illegal and unlawful.
14. Before parting, it is, however, observed that the respondents would be at liberty to file afresh petition under Section 15 of "The Act, 2009" which, if so filed, be proceeded strictly in accordance with law and while keeping in view the provisions of "The Act, 2009".