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First Rent Appeal No. 229 of 1980, decided on 10th October, 1984.

---Ss-16(1) (2) & 21--West Pakistan Urban Rent Restriction Ordinance (V of 1959), S. 13(6)--Striking off defence--Opportunity of hearing- Application for striking off defence adjourned to next date--Rent Controller on same day antidated next date by scoring off, first unsigned order and date noted on file cover--Defence of tenant struck off on antidated date in absence of tenant and his counsel--Advocate of tenant filed affidavit with appeal explaining reasons for non-appearance--Photo copy of case diary of Advocate of tenant also filed with appeal- Subsequent change in date., held, made entire proceedings suspicious and doubtful--Change might not have been brought in knowledge of Advocate of tenant--No opportunity, held, given to tenant to argue and put up his defence--Order set aside and case remanded.

---S. 16(1) (2)--Tentative rent order--Determination of amount payable--Rent Controller calculated amount due from tenant and also mentioned amount which is to be deducted while passing tentative rent order--Order, held, suffers from no legal infirmity on ground that exact amount was not calculated.

P L D 1982 Kar. 179 distinguished.

Iqbal Ahmed for Appellant.

M. Rashiduddin for Respondent.

Date of hearing: 10th October, 1984.

The respondent filed an application for ejectment of the appellant. On 7-11-1977 order for deposit of rent was passed in the following terms:-

"In the circumstances I direct the opponent to deposit the arrears of rent from November, 1974 to October, 1977 at the rate of Rs.240 per month i.e. for 36 months Rs.240 will come to Rs.8,640 minus the amount of Rs.4,692.38 before 15th December, 1977, he is directed to deposit the rent for the month of November,1977 before 15th, December, 1977 and continue to deposit the rent of every month before the 15th of each calendar month, till the case is disposed of."

The respondent filed an application on 23-10-1979 praying that as default has been committed by the appellant in compliance with the order, dated 7-11-1979 his defence may be struck off. The learned Controller issued notice to the appellant for 6-12-1979 when both the Advocates appeared and the matter was put on 20-12-1979 when again it was adjourned. According to the diary sheet on 5-2-1980 as the appellant and his Advocate were absent the application was heard by the learned Controller and order was passed on 16-2-1980 striking off the appellant's defence.

The appellant has challenged the order on the ground that on 20-1-1980 the matter was adjourned to 25-2-1980 and not to 5-2-1980 and, therefore, when he came in Court on 25-2-1980 he found that the application had been disposed off and his defence had been struck off on 16-2-1980. Mr. Iqbal the learned counsel for the appellant has invited my intention to the record of the Controller which is available in Court today. I find that on 20-1-1980 two orders were written on the order sheet. According to the first order sheet the case was adjourned to 25-2-1980. On the file cover also 25-2-1980 has been mentioned. This order sheet has not been signed by the Controller but it was scored off and on the next page another order, dated 20-1-1980 was written in which the presence of both the counsel was noted and the matter was adjourned to 5-2-1980. Similarly on the cover also 25-2-1980 has been scored off and 5-2-1980 has been written. The respondent has filed counter-affidavit in which it has been stated that in the presence of both the Advocates first the matter was adjourned to 25-2-1980 but at his request it was changed to 5-2-1980 and the parties and the Advocates were aware of this date. No re-joinder to this counter-affidavit has been filed by the appellant. Alongwith the memo. of appeal the affidavit of the Advocate has been filed explaining the detail of the alleged default. He has also filed the photo copy of the diary of 5'-2-19801 and 25-2-1980 of the Advocate who was attending the case. It seems that on 20-1-1979 in his diary he had noted that the matter has adjourned to 25-2-1980. This case has not been diaried on 5-2-1980 instead it find place on 25-2-1980. It is, therefore, clearly established that the Advocate for the appellant was under the belief that the case has been fixed for 25-2-1980. The possibility of such impression cannot be ruled out because the Court diary sheet clearly shows that the date has been changed from 25-2-1980 to 5-2-1980. Whether it has been changed with notice to the appellant or not cannot be determined at this stage. The most striking aspect of the entire episode is that if the date was to be changed from 25-2-1980 to 5-2-1980 there was no necessity to score off the entire order sheet of that date. It was easier to merely change the date. Another fact is that on the file cover 25-2-1980 has been written. This shows that first order had teen passed and thereafter the date was put on the file cover. The subsequent change by antedating R it to 5-2-1980 makes the entire proceeding suspicious and doubtful. In these circumstances I am convinced that the matter had been adjourned to 25-2-1980 and the change may not have been brought to the notice of the Advocate of the appellant. Therefore, no opportunity was give to the appellant to argue the application and put up his defence.

Mr. Iqbal the learned counsel for the appellant adverting; to the merits of the case contended that the order, dated 7-11-1977 suffers from legal infirmity as the amount has not been calculated. Reliance has been placed on Muhammad Aslam v. Umer and another P L D 1982 Kar. 179. This judgment is completely distinguishable as there the learned Controller had left the calculation of the balance amount to the parties which was held to be illegal. In the present case the learned Controller has calculated the amount due and also mentioned the amount which should be adjusted. The principle laid down in the aforestated judgment does not apply to the fact of this case. So far the merits are concerned the same can be considered by the learned Controller after recording the evidence if necessary. In the result the appeal is allowed, the impugned order is set aside and the learned Controller is directed to decide the application under section 13(6) after giving proper opportunity to both the parties.

Appeal allowed.

M. A. K. Case remanded.

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