Ayesha A. Malik J. Through this Petition, the Petitioner has impugned order dated 11.3.2019 passed by Respondent No.1, Special Judge (Rent), Lahore.
2. The basic contention of the learned counsel for the Petitioner is that the Petitioner filed an ejectment petition against Respondent No.2 before Special Judge (Rent), Lahore. Respondent No.2 did not appear before the court, hence the eviction petition was decided ex-parte on 11.4.2016. The Petitioner then filed an execution petition in order to have the Respondents evicted. However Respondents No.3 and 4 filed an application under Section 12(2) read with Section 151 Civil Procedure Code, 1908 ("CPC") on 11.2.2017 which application was accepted on the same date that is 11.2.2017. Learned counsel for the Petitioner argued that provision of Section 12(2) of the CPC is not applicable in the proceedings under the Punjab Rented Premises Act, 2009 ("Rent Act") as it has been specifically barred under Section 34 of the Rent Act. Furthermore he stated that the Limitation Act, 1908 ("Limitation Act") is also not applicable and the delay in filing the application under Section 12(2) CPC could have also not been condoned as the Limitation Act is not applicable to the proceedings under Rent Act.
3. On behalf of Respondents No.3 and 4, learned counsel argued that the case was considered on its merits and that in terms of the order impugned before this Court, the application for condonation of delay was accepted in the interest of justice as law favours decision on merit rather than technicalities. Therefore he stated that the arguments of the Petitioner 's Counsel are based on technical grounds, hence should not be accepted.
Consequently prays for dismissal of the Petition.
4. The basic issue before the Court is whether the application filed under Section 12(2) read with Section 151 CPC for setting aside ex-parte order was maintainable under the Rent Act. Section 34 of the Rent Act reads as follows: Save as otherwise expressly provided under this Act, the provisions of the Qanun-e-Shahadat Order , 1984 (P.O.
No.10 of 1984) and the Code of Civil Procedure, 1908 (Act V of 1908) shall not apply to the proceedings under this Act before a Rent Tribunal, District Judge or Additional District Judge.
In terms of the said Section, it is clear that the provisions of the CPC shall not apply to proceedings before the Rent Tribunal, District Judge or Additional District Judge. Section 26 of the Rent Act provides that the Rent Tribunal can exercise the powers of a Civil Court in order to enforce the attendance of a person, compel the production of evidence, inspect a premises or issue commission for examination of a witness or local inspection. Therefore when Section 26 is read with Section 34, the provisions of the CPC are only applicable to the extent specified in Section 26 and no other provision of the CPC is applicable in rent proceedings under the Rent Act. The august Supreme Court of Pakistan in this regard has already held in Muhammad Tariq Khan v. Khawaja Muhammad Jawad Asami and others (2007 SCMR 818) that the Rent Tribunal should evolve its own procedure for disposal of ejectment proceedings and follow the enabling provisions of the CPC and the principles contained therein. It has also held that equitable principles of the CPC can be applied, however the provisions of the CPC themselves were not applicable. Reliance is placed on Saeed Pervaiz v . Syed Masood Hassan ( 2008 SCMR 568 ).
5. In the instant case, an application under Section 12(2) CPC was filed against an ex-parte judgment dated 11.4.2016. In this regard, it is noted that Section 21 of the Rent Act provides for appearance of parties and consequences of non-appearance. In terms of Section 21(8) of the Rent Act, if an application has been dismissed in default of the appearance of an applica nt 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.
The Rent Act, therefore specifically provides for the mode and manner in which a dismissal in default of appearance can be restored, that too within a period of thirty days. In this case, the eviction petition under Section 15 of the Rent Act was filed on 25.2.2016. The order sheet shows that ex-parte proceedings were initiated vide order dated 22.3.2016 and the case was fixed for ex-parte evidence on 26.3.2016. In terms of order dated 26.3.2016 ex-parte evidence was recorded and the case was fixed on 30.3.2016 for arguments and on 30.3.2016 the case was adjourned to 11.4.2016. On 11.4.2016 no one appeared on behalf of the respondent, hence ex-parte judgment was passed by Respondent No.1. The ex-parte judgment dated 11.4.201 6 finds that the respondent was summoned by using different modes of service including publication in the newspaper , but he did not appear .
Hence the judgment and decree dated 11.4.2016 was passed. The Respondents moved an application under Section 12(2) CPC on 11.2.2017 for setting aside ex-parte judgment dated 11.4.2016. The court considered the application and allowed it primarily in the interest of justice.
6. For ease of reference Section 12(2) of the CPC is reproduced: Where a person challenges the validity of a judgment, decree or order on the plea of fraud, mis-representation or want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment, decree or order and not by a separate suit.
In my opinion, this section is not applicable on account of the bar contained in Section 34 of the Rent Act. It is further noted that in terms of the contents of the application, no case of fraud or misrepresentation was made out rather a simple prayer for restoration on account of non-appearance was made out before the court.
Notwithstanding the same, if an application was made under Section 12(2) of the CPC, it could have been treated as an application under Section 21(8) of the Rent Act, which means it had to be filed within thirty days of the dismissal order dated 11.4.2016. Therefore not only was the application under Section 12(2) CPC barred under the law in terms of Section 34 of the Rent Act but also barred by time under Section 21(8) of the Rent Act.
7. In this regard, Section 29(2) of the Limitation Act is relevant and reproduced under: Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the First Schedule, the provisions of section 3 shall apply , as if such period were prescribed therefor in that Schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law:
(a) the provisions contained in section 4, sections 9 to 18 and section 22 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law; and
(b) the remaining provisions of this Act shall not apply .
On the basis of the aforementioned Section, it is clear that the ability of a court to condone the delay has been excluded under special or local laws and is authorized specifically where the law of limitation has been made applicable in the said statute. In cases where the law of limitation has not been made applicable under the special law, then the court cannot condone the delay and the court has to ensure that the application is made within the specified period given in the statute. Reliance is placed on Allah Dino v. Muhammad Shah and others (2001 SCMR 286) wherein it has been held that where the law under which proceeding s had been initiated itself prescribed a period of limitation, then the benefit of section 5 of the Limitation Act, 1908 could not be availed unless the same had been made applicable as per section 29(2) of the Act. The operation of section 5 of the Limitation Act is expressly excluded by section 29(2) of the Limitation Act. Therefore the application under Section 12(2) CPC was not maintainable and the Special Judge (Rent), Lahore did not have jurisdiction to condone the delay of 10 months.
8. Under the circumstances, the instant Petition is allowed and impugned order dated 11.3.2019 passed by Respondent No.1 is set aside.