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(a) Civil Procedure Code (V

of 1908)

‑‑

------O. IX, r. 6 (1) (a) and O. X, r. 4(2) and West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S. 13(3)‑‑Applicability of Civil Procedure Code to ejectment proceeding before Rent Controller‑Code of Civil Procedure, 1908‑Not applicable to ejectment proceedings before Rent Controller‑Provision of O. X; r. 4(2), held, could not be made use of by Rent Controller for ordering eviction of tenant due to his non‑appearance before him.

Ashiq Masih and another v. Muhammad Yaqoob P L D 1981 Lab. 656 and Malik Shah Nawaz Khan v. Liaqat Sultan Khan in S. A. O. No. 586 of 1978 ref,

(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑

‑ ‑ S. 13 (3) read with Civil Procedure Code (V of 1908), O. IX, r. 6(1) (a) & O. X, r. 4 (2)‑Ex parte ejectment‑Statement made by tenant's counsel giving clear indication of landlord having agreed to staying on of tenant in shop in question‑Statement, held, not in support of order of eviction passed by Rent Controller but position. in fact, other way around.‑‑[Counsel and client].

(c)West Pakistan urban Rest Restriction Ordinance (VI of 1959)‑‑

‑ S. 13(3)‑Ejectment‑Proof‑Duty of Rent Controller‑Obligatory for Rent Controller to satisfy with regard to correctness of Plea advanced by landlord for securing ejectment of tenant before making order of eviction against him‑Rent Controller though not bound to hold trial as required to be done in civil suits, yet he has to look up for some material for satisfying himself as to there being merit in plea raised against tenant‑No such material existing before Rent

Controller when ordering tenant to get out of shop in dispute, order of ejectment, held, passed in disregard of provisions of S. 13 (3) of Ordnance VI of 1959.

Ch. Muhammad Iqbal for Petitioner.

Fayyaz fussain Kadri for Respondents N0& 1 and 2. Nemo for Respondents Nos. 3 and 4.

Date of bearing : 22nd May, 1982.

This writ petition has arisen out of an application made by respondents Nos. 1 and 2, namely, Maqbool Elahi and Masood Ahmad, hereinafter referred to as the respondents, for eviction of the petitioner, Salamat Ali, from a shop. The application came up before a Rent Controller on 22-7‑1979 when Mr. Muhammad Iqbal, Advocate, entered appearance on behalf of the petitioner and asked for adjournment to file reply to the application‑ Accord ingly , the case was adjourned to 9th September 1979. On that date, it was stated by Mr. Muhammad Iqbal, Advocate, that he was told by the petitioner that he had settled the dispute with the respondents and they had promised to enter into fresh agreement of lease with him. It was further disclosed by the learned Advocate that after having imparted the above information, the petitioner did not contact him and, therefore, he had no instructions to pursue the matter on his behalf. In view of this statement of the petitioner's counsel, the learned Rent Controller ordered ex parte proceeding against the petitioner and also directed him to ,vacate the shop in question. The petitioner then went in appeal before the Additional District Judge, but in vain. He has, therefore, invoked the constitutional jurisdiction of this Court to assail the orders of the two tribunals.

2. It was contended by the learned counsel for the petitioner that it was incumbent upon the learned Rent Controller to record evidence of the respon dents before making ex pane order of ejectment against him, but since he had not done so, his order was without jurisdiction. He cited Ashiq Maaih and another v. Muhammad Yaqoob (1) and the unreported judgment in S. A. O. No. 586/1978, Malik Shah Nawaz Khan v. Liaqat Sultana Khan etc. to support his submissions.

3. On the other hand, it was urged by learned counsel for the respondents that since the petitioner had not entered appearance before the learned Rent Controller on 9th September, 1979 to file reply to the ejectment application, the learned Rent Controller was justified in passing the impugned order

against him. In this connection, he placed reliance on clause (a) of sub rule P L D 1981 Lab. 656 of rule 6 of Order IX of the Code of Civil Procedure. According to him, the statement

made by the petitioner's counsel also constituted valid basis for making of the

ejectment order.

4. As for the plea that the provisions of clause (a) of sub‑rule (1) of rule 6 of Order IX of the Code of Civil Procedure were applicable to the proceedings before the learned Rent Controller, it was also raised before m in the case of Ashiq Masih and another, cited by the learned counsel for the petitioner, and was repelled by me for the reason that the Code of Civil Procedure is not applicable to ejectment proceedings. Similar view was taken by me in the unreported case of Malik Shah Nawaz Khan by holding that. the provisions of sub‑rule (2) of rule 4 of Order X of the Code of Civil Procedure could not be made use of by a Rent Controller for ordering eviction of a tenant due to his non‑appearance before him (Rent Controller). Learned counsel for the respondents did not cite any law or authority to persuade me to take a contrary view in the case in hand. I, therefore, reiterate the view already expressed by me in the said two cases and hold that the provisions of clause (a) to sub‑rule (1) of rule 6 of Order IX of the Code of Civil Procedure were not available to the learned Rent Controller for passing order or eviction against the petitioner due to his failure to appear before him and file his reply on the appointed day.

5. This brings me to the submission of the learned counsel for the respondents that the statement made by the petitioner's counsel on 9th September, 1979 was sufficient to satisfy the learned Rent Controller that the petitioner was liable to be ejected from the disputed shop and thus the require ments" of subsection (3) of section 13 of the Punjab Urban Rent Restriction Ordinance, 1959 had been complied with. The statement made by his learned counsel gave a‑ clear indication . to the effect that the respondents (landlords) had agreed to the staying on of the petitioner in the shop in question. Thus, his statement was not in support of the order of eviction made by the learned Rent Controller. The position was, in fact, other way around. The statement in question is, therefore, of no help to the respondents.

6. As noted by me in the cases of Ashiq Masih and another and Mali Shah Mawaz Khan, it is obligatory for a Rent Controller to satisfy himself with regard to the correctness of the plea advanced by the landlord for securing ejectment of a tenant before making an order of eviction against him. I am conscious of the fact that he is not bound to hold trial as is required to b dons in civil suits, but he has to lo9k up for some material for satisfying him self that there is merit in the plea raised against the tenant. There was no such material before the learned Rent Controller when he had directed the petitioner to get out of the shop in dispute, nor any such material has been hinted at by him in his order under review. His order is, therefore, in disregard of the provisions of subsection (3) of section 13 of the said Ordinance.

7. Resultantly, I accept this writ petition with costs, set aside the orders of the two tribunals below and direct the learned Rent Controller to rehear the ejectment matter and decide it afresh in the light of the above observations and according to law. The parties are directed to appear before the learned Rent Controller on 13‑6‑1982.

s. A. H. Petition accepted.

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