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First Rent Appeal No. 665 of 1982, heard on 7th May, 1985.

Sind Rented Premises Ordinance (XVII of 1979)--

---Ss.19 & 21--Order of ejectment passed ex pane--Appeal Application for setting aside ex parte order dismissed by Rent Controller in view of bar under S. 19(2) of Ordinance without making a factual inquiry to find out whether notice was served on tenant and he failed to file a reply without any reasonable excuse--It was imperative for Rent Controller to have gone into reasons stated by tenant in his application- Section 19(2) of Ordinance did not take away from Rent Controller powers to rescind order passed by him ex parte--Unless he recorded findings on facts whether a notice had been served and whether default in milking reply was without any reasonable excuse, he could not give full effect to subsection (2) of S. 19 of Ordinance--Order of Rent Controller set aside and case remanded with a direction that he should first dispose of application of tenant on merits filed before him for setting aside ex parte order of ejectment and then decide case strictly according to law.

Ajeebullah for Appellant.

Nazirullah for Respondent.

Date of hearing: 7th May, 1985.

This appeal is filed again the order of ejectment passed on 28-4-1982 by learned VII Senior Civil Judge, and Rent Controller, Karachi. This is final order of eject-rent passed ex parte. It is submitted by the learned counsel appearing fur the appellant that appellant is a tenant and initially had made appearance and participated in the proceedings before the Rent Controller and asked for time to file written statement. Subsequently he fell ill and could not continue attending proceedings and consequently an ex parte order was passed on 1-7-1981 against the appellant. Appellant then filed application for setting aside ex parte order on 19-7-1981 on the ground that appellant could not appear as he was ill. This application was dismissed by the learned Rent Controller vide his order, dated 17-3-1982. It appears from the record that this order has been passed by the learned Rent Controller on the back of application filed by the appellant for setting aside ex parte Order. The learned Rent Controller has dismissed this application mainly on the ground that under section 19(2) of Sind Rented Premises Ordinance, 1979 there is a bar on the powers of Controller to rescind ex parte order if made by him once after issuance of notice for written statement. In view of such legal position the application was dismissed without going into the merits.

Mr. Ajeebullah has contended before me that the view taken by the learned Rent Controller was not proper for the reason that section 19(2) of the said Ordinance does not take away from the learned Rent Controller powers to rescind order passed by him ex parte because it is very clear in the language of subsection (2) that it is for the Rent Controller to see whether notice has been served and respondent has failed to file his reply without any reasonable excuse. This factual enquiry is to be made by the learned Rent Controller to find out whether tenant failed to file his reply without any reasonable excuse or not. It is, therefore, clear that it was imperative for the Rent Controller to have gone into the reasons stated by the appellant in his application for setting aside the ex parte order. He should not have refused to go into the question whether excuse for not filing written statement was reasonable or not simply on the ground that there was bar. In support of the proposition reliance is placed on the case of Mashlakhuddin v . Syed Ali Haider 1982 S C M R 570.

Mr. Nazirullah Advocate has conceded to the legal position enunciated in the reported case mentioned above. In the result I set aside the impugned order and remand the case to the learned Rent Controller with a direction that he should first dispose of application of appellant on merits filed before him for setting aside ex parte order and then decide the case strictly according to law on merits within two months.

M.Y.H.

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