Find a Lawyer

Second Appeal from Original Order No. 73 of 1976, decided on 9^th February, 1976.

‑‑‑S. 13 and Civil Procedure Code (V of 1908), O. IX, r, 13‑Delay, condonation of‑Appellant having no reasonable excuse for setting aside ex parte ejectment as such intentionally absenting himself from appearing in Court‑Delay in filing appeal after lapse of one year and six months, held, cannot be condoned in circumstances of case.‑[Delay].

‑‑‑‑S. 13 and Civil Procedure Code (V of 1908), O. IX, r‑. 13‑Ex parte order, setting aside of‑Costs‑Rent Controller having power to hold enquiry wherein a party seeks to gain a certain advantage Same may be granted to him subject to reasonable conditions Order for setting aside ex parte order, subject to payment of costs, held, cannot be said to be in any way, illegal.

Second Appeal from. Original Order No. 125 of 1974 rel.

Zafar Pasha Chaudhry for Appellant.

This appeal is directed against the order dated 5th February, 1976 passed by the learned Additional District Judge, Lahore, dismissing the first appeal filed by the appellant against the order dated 18th December, 1972 passed by the learned Controller.

2. The initial order of the Controller makes it clear that the appel lant has been absenting himself from the Court on many occasions and ultimately he was proceeded against ex parte which culminated in passing ex parte order of ejectment against him. He, however, applied for setting aside the ex parte ejectment order which was set aside on payment of costs of Rs. 60. The said cost was never paid by the appellant and in con sequence thereof the ejectment order already passed against him was made effective.

3. The order of the Controller refusing to set aside order of eject ment was made subject‑matter of the first appeal before the learned lower appellate Court by the appellant which was rejected. Later on he approached the High Court in S. A. O. No. 125 of 1974 against the said order of the learned District Judge, which was also rejected, of course with the observation that since the final order of ejectment dated 18th December, 1972 made by the Controller had not been challeng ed by the appellant, therefore, no remarks, whatsoever, could be made in relation thereto.

4. The first appeal of the appellant has been dismissed by the learned lower appellate Court on merits as well as the same being barred by 18 months. The learned counsel has tried to argue the case on merits but I am of the view that the first hurdle in the way of the appellant is, to cross the barrier of limitation. It has been found, as discussed above,, that the. appellant has not been able to furnish reasonable cause for setting aside. the ex parte ejectment order passed against him. If it is so, then it means that he intentionally absented himself from appearing in the Court and in that case the delay in filing the appeal after a lapse of one year and six months cannot be condoned.

5. It has been contended by the learned counsel with regard to the order dated 18th December, 1972 that the Controller bad no jurisdiction to impose any costs and as such the order passed in this behalf was illegal. This aspect of the case has already been dealt with by my learned brother Mohammad Afzal Zullah, J. in the judgment passed in S.A.O. No. 125 of 1974. It has been held that it cannot be said that the order whereby the application for setting aside the ex parte order was allowed subject to the payment of costs was, in any way, illegal If the Rent Controller has the power to hold enquiry wherein a party seeks to gain a certain advantage then the same may be granted to him subject to reasonable conditions. In this way, it has been found conclu sively that the Controller has jurisdiction to give any concession subject to certain conditions.

6. It has also been contended that since the Controller was not present; therefore, the costs could not be paid within time. This plea has also not been found with favour by my learned brother while disposing of the said S.A.O. As such the plea cannot be allowed to be raised again before this Court.

7. Since the appellant has been found to be negligent in pursuing the matter as is apparent from both the impugned orders, therefore, the delay in filing the appeal has been rightly not condoned. The learned counsel submits that if the appeal is likely to be dismissed then some time may be granted to the appellant to vacate the premises in question. The shop in question is admittedly situated, in Anarkali Bazar and it may be difficult for the appellant to find any alternate accommodation at once. In these circumstances the ejectment order passed against the appellant will not be effective for a period of one month only. The appeal having no force is hereby dismissed in limine.

M.Y.H. Appeal dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.