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(a) West Pakistan Urban '4ent Restriction Ordinance (VI of 1959)

-- S. 13-Civil Procedure Code (V of 1908), O. III, r. 4Ejectment of tenant - Application for setting aside of ex parte ejectment order-Tenant gave authority to counsel to appear on his behalf and thereafter he also filed an affidavit to certify that be (counsel) was fully authorised to prosecute case on his behalf Simply because counsel had not filed a proper power-of-attorney and whole proceedings, lasting for some two years was held to be bad on this short ground, held, was exactly the situation which Ordinance intended to avoid. [Counsel and client].

(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959

-- Ss. 4, lu(3), 12, 15 & 16-Civil Procedure Code (V of 1908), O. 111, r. 4-Application for setting aside of ex parte ejectment order-Memorandum of appearance instead of regular power-of attorney filed by counsel with such application-Application whether maintainable-Held: Neither Civil Procedure Code, 1908 nor Evidence Act, 1872 are in terms applicable to proceedings under West Pakistan ' Urban Rent Restriction Ordinance, 1959-Proceedings before Rent Controller are not to be frustrated by mere formalism because in deciding such cases only requirement for Rent Controller is to ensure that no party should be prejudiced by procedure adopted by him and that each party is afforded a fair opportunity to present his point of view-Application for setting aside ex parte ejectment order with memorandum of appearance was properly presented and maintainable.-[Counsel and,client].

(c) Constitution of Pakistan (1973)- '

Art. 199-Civil Procedure Code (V of 1908), O. III, r. 4 West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S. 13-Ejectment-Application for setting aside ex parse order of ejectment -- Counsel of tenant filing memorandum of appearance but not a proper power-of-attorney executed by tenant with such application-Appellate Court holding such application filed on behalf of tenant for setting aside ex parte decree as properly presented and maintainable -Held, apart from the fact that proceedings before Rent Controller were such as are conducted by an executive officer, case was not at all fit case in which High Court should have exercised its constitutional jurisdiction to set aside order of Appellate. Court in which a fair and just view had been taken of situation.-[Counsel and client].

Muhammad Zahoor Qureshi, Advocate Supreme Court and Qasim hnam, Advocate-on-Record (absent) for Petitioner.

Sardar Akhtar Ali, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondents.

Date of hearing : 23rd January, 1985.

NASIM HASAN SHAH, J.-This petition is directed against the judgment and order, dated 9-12-1984 passed by a Division Bench of the High Court in Writ Petition No. 225 of 1984.

The relevant facts are that one Wajahat Ali Shah Kazmi, predecessor in-interest of respondents Nos. 1 to 3, had filed an application in the Court of the Rent Controller, Peshawar, for ejectment of Abdul Majid, petitioner herein, from House No. 2645, Mohallah Merviha, Peshawar City and an ex parte order of ejectment was passed against him on 18-9-1981. On the same day, shortly after the aforesaid order was passed, Mr. Burhanuddin Khattak, Advocate moved an application before the Rent Controller for setting aside of the ex parte order. Alongwith this application he filed a memorandum of appearance but not a proper power-of-attorney executed by Abdul Majid in his favour.

The last-mentioned application was contested by the landlord and, ultimately, dismissed by the Rent Controller vide his order, dated 12-11-1983 on the short ground that the counsel for the tenant had failed to file a duly accepted power-of-attorney on his behalf and that, therefore, the application was not competent and maintainable.

Dissatisfied, the tenant filed an appeal before the Additional District Judge, Peshawar, which was accepted by him on 15-3-1984. He observed that the counsel for the tenant Mr. Burhanuddin Khattak had prosecuted the case before the lower Court for about two years and during the said period nobody objected to his authority to appear and act on behalf of the petitioner. Furthermore, Mr. Burhanuddin Khattak had filed an affidavit before the Additional District Judge that he was duly appointed as a counsel for the tenant, the contents of which affidavit were duly supported by the tenant. He, therefore, held that the application filed on behalf of the tenant by Mr. Burhanuddin Khattak for setting aside ex parte order dated 17-9-1981 was properly presented and was clearly maintainable and it was, therefore, wrongly and illegally rejected by the Rent Controller. The appeal was, accordingly, accepted and the order of the Rent Controller passed by him on 17-y-1981 was set aside and the application remanded back to him for decision on the merits in accordance with law.

The landlord feeling aggrieved by the order of the Additional District Judge filed a writ petition before the High Court which was surprisingly accepted by a Division Bench of the said Court vide their judgment, dated 12-9-1984 on the ground that the failure to file a duly executed power of-attorney was against the mandatory provision of Order III, rule 4 of the Civil Procedure Code which lays down that :

"No pleader shall act for any person in any Court, unless he has been appointed for the purpose by such person by a document in writing signed by such person or by his recognised agent or by some other person duly authorised by or under a power-of-attorney to make such appointment."

Their conclusion was expressed thus :---.

"Consequently, we have arrived at the conclusion that the impugned judgment, made by the learned Additional District Judge was completely against law because the respondent had not complied with the mandatory provisions of Order III of the Civil Procedure Code, and an illegality of grave nature was committed by him in accepting the appeal."

This petition for leave to appeal is directed against the aforesaid judgment.

The Court has repeatedly pointed out that neither the Civil Procedure Code nor the Evidence Act are in terms applicable to the proceedings. under the Rent Restriction Ordinance. The earliest decision on this point was by the Full Court in the case of Khadim Mohyuddin and another v. Ch. Rehmat Ali Nagra and another (PLD 1965SC459), wherein it was observed :-

"Though under section 16, West Pakistan Urban Rent Restriction Ordinance, 1959, the Controller' has been given powers of summoning and enforcing the attendance of witnesses and compelling the production of evidence', he is not bound in every case to follow the procedure as laid down in the Code of Civil Procedure. He has been given powers under sections 4, 10(3) and 12 to make orders after holding such inquiry as he thinks fit. In such cases the question of nature of enquiry is left to him. That means that in such enquiries the parties have no right to insist on production of such evidence as they desire to adduce in support of their case. In short these inquiries may be such as are conducted by an executive officer." (Underlining* is ours).

In subsequent cases it was further explained by this Court that proceedings before the Rent Controller are not to be frustrated by mere formalism because in deciding such cases the only requirement fur him is to ensure that no party should be prejudiced by the procedure adopted by him and that each party is afforded a fair opportunity to present his point of view. In this case, Sardar Akhtar Ali, learned counsel for the respondents, who appeared in support of the caveat filed on their behalf, conceded that though Mr. Burhanuddin Khattak could have "appeared" before the Rent Controller on the basis of the memorandum of appearance filed by him but he could not have "acted" on his behalf and, therefore, could not have filed an application for setting aside the ex parte proceedings, because this was not permitted by rule (4) of Order 11I of the Civil Procedure Code.

We feel that there could hardly be a clearer case of a technicality beings invoked to thwart the decision of a case on the merits than the one invoked herein. The tenant had given authority to Mr. Burhanuddin Khattak to appear on his behalf and thereafter he also. filed an affidavit to certify that he was fully authorised to prosecute the case on his behalf. Nevertheless his right to have the ex parse order of ejectment has not been attended to on the merits simply because he had not filed a proper power-of-attorney and the whole proceedings, lasting for some two years, were held to be bad on this short ground. This is exactly the situation which this law intended' to avoid.

We may, however, point out that Sardar Akhtar Ali also relied upon section 22 of the Legal Practitioners and Bar Councils Act, 1973, especially subsection (3) thereof which lays down that :

"No Advocate shall appear or act for any person in any Court or Tribunal unless he has been appointed for the purpose by such person by a document in writing signed by such person . . . . ."

But apart from the fact that the proceedings before the Rent Controller are such as are conducted by an executive officer, as pointed out in Khadim Mohyuddin's case, this was not at all a fit case in which the High Court should have exercised is writ jurisdiction, to set aside the appellate order of the Additional District Judge, in which a fair and just view had been taken of the situation.

We would, therefore, convert this petition into an appeal and allow it. The judgment and order, dated 12-9-1984 passed by the High Court is hereby set aside and that of the Additional District J.udge. dated 15-3-1983 restored. The result will be that the matter will go back to the Rent Controller for decision of the application filed by the appellant before him for setting aside the. ex parte order, dated 17-9-1981 in accordance with law.

The appeal is allowed, leaving the parties to bear their own costs.

M. z. M. Appeal allowed.

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