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‑‑ S. 13‑Civil Procedure Code (V of 1908), O. IX, r. 13 Provisional Constitution Order (1 of 1981), Art, 9‑Reason ,given for setting aside ex parte order not available to Rent Controller‑Order passed without application of judicial mind Parties agreeing that matter may be sent back to Rent Controller for decision of application submitted under O. IX, r. 13 and S. 151, C. P. C.‑Order quashed and declared to be without lawful authority‑Application filed under O. IX, r. 13, held, deemed to be still pending and to be disposed of in accordance with law.

Qazi Abdul Hayee for Petitioner.

Kh. Sadiq Hassan Turk for Respondent. No, 2.

Dates of hearing: 1st, 3rd and 6th November, 1982.

The petitioner in this Constitution Petition has assailed the order dated 9th April, 1981 of the learned Rent Controller, whereunder the order dated 28th March, 1981 accepting the ejectment petition and directing eviction of respondents Nos. 1 and 2, was set aside. The eviction order dated 28th March, 1981 was passed after closing the evidence of the respondents‑tenants as they and their counsel failed to tender appearance on the said date. It was further observed in the said order that from the evidence of the plaintiffs on record the averments made in the ejectment petition stand established. The respondents‑tenants were ejected in pursuant to the eviction order from the premises in dispute. Later, respondent No. 2 filed an application under Order IX. rule 13. C. P. C. and section 151, C. P. C. for setting aside the order dated 28th March, 1981. It was asserted in the petition that the matter was earlier adjourned on 12th March, 1981 but on the said date the evidence could not be recorded as it was stated before the Court that the original counsel for the petitioners‑landlords was under detention in jail. The case was then adjourned to 16th March, 1981 but as the said date was declared a public holiday, the case was taken up on 28th March, 1981. The Court was also closed on 27th March, 1981 as it was Friday. The learned trial Court accepted this application on 9th April, 1981 observing as under :.‑

This order is under challenge as noted above in the constitution petition.

2. Learned counsel for the petitioners has argued that non‑applica tion of the judicial mind is apparent from the very perusal of the impugned order as it was the counsel of the petitioners‑landlords who was then in jail due to detention order and that was the reason given for adjournment on 12th March, 1981. Thereafter, the petitioners‑landlords had engaged another counsel who appeared on 28th March, 1981 but none appeared on behalf of the respondents. This position is not controverted by the counsel .for the contesting respondents and he further concedes that the reason given in the impugned order for setting aside the order dated 28th March, 1981 was not available to the learns Rent Controller and as such he is not in a position to controvert the plea that the said order was passed without applying the judicial, mind.

3. In view of above, the parties agree that the matter may be sent back to the learned Rent Controller for decision of the application submitted by respondent No. 2 under Order IX, rule 13 and section 151, C. P. C. on merits in accordance with law with liberty to raise all pleas available to the parties under law.

4. The net result is that the order dated 9th April, 1981 is quashed and is declared to be without lawful authority. The application under Order IX, rule 13, C. P. C. filed by respondent No. 2 shall be deemed to be still pending and shall be disposed of in accordance with law. The parties will be free to raise all the factual and legal pleas available to them under law.

M. A. K. Petition accepted.

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