SHAKIL-UR-REHMAN KHAN, J.---- The petitioner has challenged the order dated 23.01.2019 through which the following two applications filed by him were dismissed:-
(i) Application for rejection of ejectment petition.
(ii) Application to discard the examina tion-in-chief of the witnesses of the respondent No.2, recorded on 08.10.2018.
2. The relevant facts for the decision of the instant writ petition are that respondent No.2 filed an ejectment petition against the petitioner for the vacation of shop No.29 situated at Khata No.29 Mauza Shah Sadar Din, Tehsil and District Dera Ghazi Khan on 19.3.2018. This petition was filed under Section 15 of the Punjab Rented Premises Act, 2009. The petitioner filed leave to contest which was allowed. It is noted that the petitioner denied the relationship of landlord and tenant through the said leave to contest.
3. Thereafter the petitioner filed an application before the learned Rent Tribunal to the effect that the respondent No.2 had not placed any affidavits along with the ejectment petition which were necessary under the law, therefore, the petition as such was not proceedable, hence the ejectment petition be rejected. The petitioner filed another application before the said learned Tribunal to the effect that as no affidavits had been submitted along with the ejectment petition and that on the basis of the said affidavits the opponent has to cross-examine the witnesses, therefore, the evidence of the petitioner could not have been recorded. Accordingly , it was stated that the evidence recorded on 08.10.2018 be discarded. Both these applications were dismisse d vide impugned order dated 23.01.2019.
4. Learned counsel for the petitioner argued that under the provisions of subsection (4) of Section 19 of the Punjab Rented Premises Act, 2009, it was mandatory for the respondent No.2 to submit affidavits in support of his ejectment petition but as no affidavits were filed, therefore, no proceedings could be taken by the learned Rent Tribunal in the ejectment petition filed by the said respondent. He pointed towards the two applications and the reply filed by respondent No.2 to the same and argued that the stance of the petitioner was not denied by respondent No.2. He further stated that the learned Rent Tribunal through the impugned order dated 23.01.2019 dismissed both the applications simply on the ground that this particular objection was not raised by the petitioner through his leave to contest. He further stated that the impugned order is against the governing law as well as the facts of the matter at hand; that the stance of the petitioner raised through the abov e noted applications was strictly based on the legal provision and the same could be raised at any stage of the proceedings, therefore, the impugned order is based on misunderstanding of the position obtaining in the matter at hand; that the observation of the learned Rent Tribunal to the effect that the learned counsel for the petitioner does not intend to cross- examine the witnesses of the respondent No.2, is totally incorrect and has been made while ignoring the statutory provision, particularly on the basis of which the applications had been filed before the said learned Rent Tribunal; that the learned Rent Tribunal completely ignored the provisions of Section 19 of the Punjab Rented Premises Act, 2009 while passing the impugned order; that the respondent No.2 never submitted any application in compliance or for complying with the provisions of subsection (4) of Section 19 of the said Act and this fact has also been ignored while passing the impugned order; that in view of the said provisions, it was incumbent upon the learned Rent Tribunal to either have returned the ejectment petition to respondent No.2 or should have given a direction to him to comply with the said provision but unfortunately the learned Rent Tribunal did not adopt any of the two modes of action, despite the clear provision of the law. He further pointed out that while passing the impugned order the learned Rent Tribunal also ignored that respondent No.2 had filed a suit for ejectment before the learned Civil Court with a different stance than as had been mentioned in the ejectment petition and in view of the same he could not have taken the stance that he was the landlord and for this exact reason respondent No.2 did not file any affidavits of his witnesses in support of the ejectment petition. He next contended that the learned Rent Tribunal while passing the impugned order did not apply a judicious mind. He added that in view of the provisions of the Punjab Rented Premises Act, 2009 no appeal or revision is provided for, against an interlocutory order , therefore, the said order has been challenged through the instant Constitution petition. Learned counsel for the petitioner in support of his above-noted arguments relied upon the cases reported as Muhammad Shabbir v. Zafar Javed and others (2012 MLD 1988 ), Ehsan Abbas v. Khush Abbas and others (PLD 2011 Lahore 311) and Dr. Sajjad Nazir v. Special Judge Rent T ribunal, Lahore and 2 others (2017 CLC Note 131 ).
5. Arguments heard. Record perused.
6. The plain reading of Section 19 of the Punjab Rented Premises Act, 2009 clearly depicts that these are directory and not mandatory provisions. It is no doubt correct that a legal issue/question can be raised at any stage of the proceedings, however , since the learned counsel for the petitioner has not been able to show as to how the non- filing of the affidavits of the witnesses by respondent No.2 before the learned Tribunal along with ejectment petition, has prejudiced any of the rights of the petitioner , therefore, the contention raised by the learned counsel for the petitioner in this regard needs no further consideration. It is also noted that since the complete order sheet has not been appended with the instant writ petition, therefore, this Court cannot remark on the observation of the learned Rent Tribunal to the effect that the learned counsel for the petitioner does not intend to cross-examine the witnesses of respondent No.2.
7. The issue regarding the objection of the learned counsel for the petitioner , to the effect that respondent No.2 had taken a different stance in his suit for ejectment before the learned Civil Court, than the one taken by him in the ejectment petition before the learned Tribunal, is a matter of evidence and this Court is confident that all factual controversies will be decided by the learned Rent Tribunal in accordance with law brought before it by the petitioner , as well as, by the respondent No.2. More particularly , in view of the fact that the instant writ petition relates only to the legal issue raised herein, therefore, it is not necessary nor appropriate to make any remarks or observations regarding the factual matrix of the case, lest it may cause prejudice to either side. In any case, while considering the contentions raised by the learned counsel for the petitioner , reference can safely be made to the case reported as Ch. Muhammad Shahzad Aslam Naz v. Special Judge (Rent), Multan and another (2011 CLC 1503 ), wherein it was, inter alia, held that the objection of non-filing the affidavits beco mes non-existent after the grant of leave to defend.
8. As far as, the judgments relied upon by the learned counsel for the petitione r are concerned, these do not support the contentions raised by him, rather , they are in conflict with the stance taken by the learned counsel for the petitioner , as noted below:- I. Muhammad Shabbir v . Zafar Javed and others (2012 MLD 1988 )
In this case the issue was that whether the landlord could produce only such witne sses whose affidavits had been annexed with the ejectment petition. This Court came to the conclusion that landlord could submit affidavits of any person of his own choice and the learn ed Tribunal may direct, for the attendance of the deponent for cross- examination. It was also held that the purpose of affidavits was only meant for deciding leave application of the tenant. The court elaborated that section 25 of the Punjab Rented Premises Act, 2009 provides that at the time of grant of leave to contest the learned Rent Tribunal shall direct the party to produce his evidence on a date fixed and shall treat the affidavit filed by the party as evidence and may order for the attendance of the deponent for cross-examination and that it does not relate to the affidavits previously filed by the landlord at the time of filing the ejectment petition. In this view of the matter, this judgment is contrary to the stanc e taken by the learned counsel for the petitioner , therefore, of no use for the petitioner in the above noted facts and circumstances of this case.
II. Ehsan Abbas v . Khush Abbas and others (PLD 201 1 Lahore 31 1)
In this case the affidavits of the witnesses of the landlord were submitted at a later stage. This Court while considering the provisions of section 19 of the Punjab Rented Premises Act, 2009 concluded that the use of word "shall " in subsection (4) of Section 19 had to be construed as directory in nature and not mandatory . In this view of the matter , this judgment is also contrary to the stance taken by the learned counsel for the petitioner , therefore, does not come to the rescue of the petitioner in the above noted facts and circumstances of this case.
III. Dr. Sajjad Nazir v . Special Judge Rent T ribunal, Lahore and 2 others (2017 CLC Note 131 )
In this case the landlord had filed an application for submitting the affidavits after framing of issues; therefore, this Court came to the conclusion that the learned Tribunal had rightly accepted the application allowing the landlord to submit affidavits. In this view of the matter , this judgment also does not support the contentions of the learned counsel for the petitioner .
9. Resultantly , for what has been stated above, this petition being devoid of merits stands dismissed in limine.