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First Rent Appeal No. 922 of 1982, decided on 18th August, 1985.

(a) Sind Rented Premises Ordinance (XVII of 1979)--

----S. 21-Ejectment--Tenant after receiving notice of application for ejectment appearing before Rent Controller and moving an adjournment application and same was granted--Tenant, thereafter absented himself and consequently an ex parte order of ejectment passed against him on merits--Tenant opposing ex parte proceedings and stating that he was ill and when his condition became serious he was referred by a private clinic to Civil Hospital--Tenant failing to produce a medical certificate from Civil Hospital--Plea of lack of relationship of landlord and tenant raised by tenant nullified by his own statement made in his application for setting aside ex parte order--Order of ejectment passed by Rent Controller upheld in circumstances.

(b) Sind Rented Premises Ordinance (XVII of 1979)--

--S.21--Limitation Act (IX of 1908), Art. 181--Ejectment application--Ex parte order--Application for setting aside ex parte order Art. 181, Limitation Act, 1908, held, was applicable to such application.

S.A.Jalib for Appellant.

Zahid Marghoob for Respondent.

Date of hearing: 11th August, 1985.

This appeal is directed against the orders. dated 29-3-1981, 9-4-1981 and 2-9-1982, passed by Senior Civil Judge and VIIIth Rent Controller, Karachi.

2. The relevant facts of the case are that the respondent had moved an ejectment application against the appellant. Notice of the said application was issued to the appellant by a registered A.D. Post but the postal receipt bears the name of Hashim. The service through bailiff was effected but no signature of any witness was obtained by the bailiff. However, what has happened is that on 1-3-1981 the appellant presented himself before the Rent Controller and moved an adjournment application. The same was granted but thereafter, the appellant absented himself and consequently on 9-4-1981 an ex parte order on ejectment application was passed against him. On 12-7-1981 the appellant moved an application for setting aside the ex parte order and filed a certificate from Farooq Clinic showing that he was under observation from 26-2-1981 to 3-3-1981 and thereafter his condition became serious and he was referred to Civil Hospital. The Rent Controller treated this certificate as a managed certificate on the ground that the certificate did not bear the admission number of the appellant nor any prescription slip was produced and further it was not supported by any certificate from the Civil Hospital.

3. In his order, dismissing the restoration application on 2-9-1982. the Rent Controller has further observed that the appellant had personally appeared in Court and had moved an application which bears his identity card number as well. He had further observed that the opponent was asked to put his identity card number on the adjournment application. The identity card number shown in the said application, dated 1-3-1981 tallies with the identity card produced by the appellant on 24-8-1982, as observed by the Rent Controller. I had also examined the appellant, Muhammad Ismail and I find that his identity card tallies with that number. On the basis of above facts the Rent Controller had dismissed the restoration application. He had further observed that the application for setting aside the ex party order was barred as it was filed beyond 30 days.

4. Mr. Jalib has argued before me that the notice of the ejectment application had not been properly served upon the appellant, since there was no witness to the service of the said notice and moreover the bailiff had not filed his 'affidavit in support. This objection would have been quite well founded but the difficulty is that it was the same Rent Controller before whom an application had been made on 1-3-1981 for adjournment and he had continued to preside over the same Court till 2-9-1982, when the matter was finally disposed of. The said Rent Controller has observed in his order dated 9-4-1981 that the opponent (Muhammad Ismail) was served with the notice of the application and he appeared in Court on 1-3-1981 and made an application for time to file written statement. This is a positive observation made by the Rent Controller in respect of the appearance of appellant Muhammad Ismail before the Rent Controller. The Rent Controller in his order, dated 2-9-1982 has again observed.

"Moreover the opponent has personally appeared in Court in pursuance of the notice of this Court and has moved the application, which bears identity card number also. As a matter of abundant caution the opponent was asked to put his identity card number on the adjournment application. The opponent has mentioned his identity card number on the adjournment application as 507-24-208872. Since the opponent's Advocate has contended that the opponent has not appeared in Court on 1-3-1981 so the opponent was asked to produce his identity card. The opponent produced his identity card on 24-8-1982 and its photostat copy has been placed on record. The perusal of the identity card number clearly shows that the number given on the adjournment application and on the identity card is the same, which brings me to the clear conclusion that opponent was served and he in pursuance of the Court notice appeared on 1-3-1981 and filed adjournment application.

In view of these observations made by the Rent Controller. it is not possible for this Court to come to the conclusion that the appellant had not appeared before the Rent Controller and had :Jot made an application for adjournment.

5. Mr. Jalib's contention was that the factum of pursuance of numbers of identity card on application, dated 1-3-198 is rather curious and that such factum is not mentioned in the order sheet. The explanation of Mr. Zahid, respondent's counsel, is that he was personally present in the Court of the Rent Controller on '1-3-1981, and it was on his objection in respect of the identity card of Ismail, when the adjournment application was made by Ismail, that the Rent Controller had obtained the identity card number of Ismail. The said statement may be correct. In any case there is no reason for Court to challenge order of the Rent Controller as official acts are presumed to be performed in due course. In any case no allegation has been made against the Rent Controller in respect of the number of the identity card having been later on put on the said application. Since these numbers of identity card are on the application of 1-3-1981 and the appellant has today deposed before ale that he keeps his identity card with him. Therefore, it would be reasonable to conclude that it was the appellant himself who had appeared before the Rent Controller on 3-1-1981. In his deposition today, before me, the appellant has denied his thumb impression on the application, dated 1-3-1981 but he has in fact denied or at least not admitted even those thumb-impressions which are obviously by him, namely on affidavit filed before the Rent Controller and on the power of the Advocate. Therefore, his statement can hardly be given any credence particularly when the Rent Controller says that he had obtained identity card number from the appellant himself. I am, therefore, of the view that the Rent Controller, was Justified in concluding that the appellant had appeared before him on 1-3-1981 and thereafter he had failed to appear. Non-production of the medical certificate from the Civil Hospital is of significant importance.

6. Mr. Jalib then submitted that the view of the Rent Controller that the application for :letting aside the ex parte order should have been filed within 30 days is incorrect in law. I agree with him in this respect because it is Article 181 of the, limitation Act which is applicable to the setting aside of the ex parte order held in P L D 1981 S C 21. But the wrong view of the Rent Controller in respect of the limitation of the setting aside application does not reflect in any manner upon the decision of the Rent Controller on the merits that the appellant had appeared on 1-3-1981 and thereafter he had failed to appear and hence the ex parte proceedings were justified against him.

7. Thereafter Mr. Jalib submitted that there was no relationship of landlord and tenant. However, since the appellant had failed to appear; after 1-3-1981, therefore, the question of relationship which required evidence could not be agitated by him. It is the appellant himself, who is responsible fur the order passed against him ex parte. Moreover I find that the objection in respect of lack of relationship landlord and tenant in the application dated 12th July, 1981 appears to be a last minute plea without disclosing the ground of lack of relationship of landlord and tenant. In fact in para. 8 of the same application the appellant had stated that the ex parte order .takes away the valuable right of tenancy from the opponent. Prima facie it appears to me that; paras. 8 and 10 of the said application are in conflict with each other and the additional plea of lack of relationship was merely a matter of last resort and an afterthought, which came to the mind of the learned counsel on the last moment of filing of the application. My observations in this regard find support from the affidavit filed by the appellant on the same date where there is no mention of lack of relationship of landlord and tenant.

8. The result is that this appeal is dismissed. However, since the premises in question are commercial premises which is difficult to obtain in Karachi, I would grant one year's time to the appellant to vacate the same provided he deposits a sum of Rs.100 per month with the Nazir of this Court regularly with effect from September, 1985. First payment by 10th September, 1985 and thereafter regularly by 10th of every month. Direct writ of possession will be issued against the appellant in case of non-payment of rent of any month and otherwise after the expiry of one year from today.

M.Y.H.

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