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First Rent Appeal No. 214 of 1982, decided on 12th August, 1985.

‑‑‑S. 15‑‑Eviction‑‑Ex parte order‑‑Plea of fraud‑‑Whether liable to be set aside‑‑Matter settled between parties‑‑Respondent assured appellant to withdraw case‑‑Appellant not appearing before Rent Controller in pursuance of settlement‑‑Rent Controller expressing lack of jurisdiction to set aside ex parte order holding application as belated‑‑Rent Controller, held, had jurisdiction to set aside ex parte order of ejectment passed by m and question of limitation could be determined after examining plea of fraud‑‑Limitation would not apply in case wherein fraud was established.‑‑[Limitation].

Shafaat Hussain for Appellant.

The respondent filed an ejectment application against the appellant on the ground of default in payment of rent on 5‑8‑1978. Notice was served on the appellant and he appeared on 11‑10‑1978. From the diary sheet it seems that he applied for adjournment seeking time to engage a counsel, and the matter was then adjourned to 7‑11‑1978. The appellant did not appear on that day, and consequently, ex parte order of ejectment was passed on 13‑2‑1979. The respondent filed execution application in January, 1980 and then the appellant came to know that an ex parte order of ejectment has been passed. The appellant filed an application for setting aside the ex parte order on the ground that after hearing on 11‑10‑1978 the matter was settled between the parties and the appellant paid Rs.3,000 to the respondent, and receipts were produced. It was also stated that he was assured that the respondent will withdraw the case, and will not proceed, and on that basis he never appeared before the Controller. According to him, he had made only one appearance on 11‑10‑1978, and therefore, as the matter had been settled, neither he engaged the counsel, nor personally appeared before the Controller. The learned Controller by the impugned order held that he has no jurisdiction to set aside the ex parte order, and further held that application has been filed after lapse of a long time. The first ground for dismissal of application is completely wrong, as the Controller had jurisdiction to set aside an ex parte order of ejectment passed by him. The second ground for the order is completely vague and without any reasoning. The question of limitation could have been determined only after examining the plea raised by the appellant, that ex parte order has been obtained by fraud and in cases where fraud has been established, limitation will not apply.

Mr. Shafaat Hussain, the learned counsel for the appellant has taken me through the diary sheet of the learned Controller, in which on several dates it has been mentioned that the Advocate for the appellant had appeared and even obtained adjournment for filing the written statement. I have closely scrutinised the record of the Controller, and find that the Vakalatnama on behalf of the appellant does not find place in the record, nor the name of the said Advocate can be ascertained. This clearly shows that the entire diary is completely wrong. On one date it is stated that the appellant had appeared personally, but in view of the suspicious diary, I am not inclined to believe this entry. In the circumstances, I set aside the order of the learned Controller, and remand the case for decision of the appellant's application for setting aside the ex parte order passed by the Controller.

S.A. Appeal accepted.

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