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First Rent Appeal No.525 of 1985, decided on 6th March, 1986.

‑‑‑‑Ss. 19(2) & 21(1)‑‑Ejectment application‑‑Non‑appearance of tenant‑ Ex parte order‑‑Setting aside of‑‑Jurisdiction of Rent Controller Tenant and his .counsel admittedly failed to appear on date fixed for filing of written statement‑‑Copies of ejectment application were supplied and sufficient time was granted to file written statement‑‑Rent Controller proceeded ex pane‑‑Rent Controller refused to set aside ex parte order‑‑Rent Controller having no power to rescind ex parte order passed by him under S.19(2) of Ordinance XVII of 19 9, held, had acted within his jurisdiction by refusing to set aside ex parte order passed by him.

1982 C .. C 644; 1985 C L C 317; 1984 C L C 224 and Muhammad Jehangir v. Ch. Muhammad Niazuddin and others 1984 C L C 2114 ref.

Ishtiaq Ail Kanhorvi for Appellant.

S. Faiq Hussain fox Respondent.

Date of hearing: 26th March, 1986.

This First Rent Appeal under section 21 of the Sind Rented Premises Ordinance, 1979 (hereinafter referred to as 'Ordinance') have been filed against the order, dated 19‑8‑1985 of IIIrd Senior Civil Judge and Rent Controller, East, Karachi, whereby appellant has beer directed to case the premises within one month and put the respondent into vacant possession.

Appellant is a tenant in respect of top floor of Bungalow No. 140‑B, Block‑2, P.E.C.H.S. Karachi on, monthly rent of Rs.825

2. Respondent is landlady of the demised premises. The rent cast was filed on 1.9‑5‑1985 by respondent Mst. Zubaida on the ground of default in payment of rent from March, 1985 till filing of the rent case. It is also stated that in the Rent Application that appellant started depositing rent in May, 1985 in Miscellaneous Rent Case No. 1770 of 1980 and also filed Civil Suit No. 16444 of 1935 in the Court of XXth Senior Civil Judge Karachi. On 11‑7‑1985 Advocate for both the parties were present and copy of rent application supplied to appellant's counsel and matter was put off to 16‑7‑1985 for Tiling of written statement. The case diary of the Court shows that on 16‑7‑1985 Advocate for the respondent was present whereas Advocate appearing for the appellant was called absent nor any written statement was filed. The Rent Controller passed an ex parte order and fixed for ex parte proof on 27‑7‑1985. On 18‑7‑1985 Advocate for the appellant filed an application for setting aside the ex parte order. His request was turned down by an order, dated 19‑8‑1985. Finally after hearing arguments of the Advocates the application for setting aside the ex party order was dismissed. The case was fixed for final argument on 22‑8‑1985' 13y an order, dated 31‑8‑1985 the learned Rent Controller allowed the Rent application and passed eviction order.

3. Mr. Muniruddin Alvi appearing for the appellant contended that on 16‑7‑1985 he could not contact appellant and he himself appeared in the Court in late hours to get time extended for filing written statement but ex parte order was already passed and the matter was fixed for 27‑7‑1985 for ex parte proof. He further argued that on 18‑7‑1985 he filed an application for setting aside the ex parte order but his application was dismissed

4. Syed Faiq Hussain appearing for the respondent contended that the Rent Controller fixed 16‑7‑1985 for filing written statement but appellant and his counsel were absent and at about 2‑30 p. m. when written statement was not filed and no one appeared, the ex parts

order was passed. He has referred to the cases reported in 1982 CLC 644, 1985 C L C 317 and 1984 C L C 224.

5. The respondent Mat. Zubeda in support of her case has filed affidavit in evidence as ex parte proof on 27th July, 1985 in which she stated that appellant committed default in payment of rent from March, 1985 and she requires the premises for her bona fide requirement and for her son. On the same day appellant filed written statement which has also been kept on record by the Rent Controller but appellant could not lead evidence as ex parte order was already passed. Believing the evidence of respondent, the rent application allowed application and by an order, dated 31st August, 1985 the appellant is directed to hand over the vacant possession.

6. I have perused the case diaries produced by the appellant alongwith this first rent appeal which show that on 11‑7‑1985 Advocate for the appellant was present and has made an application for supply of copies. The learned Rent Controller directed the respondent to supply copy to him. On the same day an application was moved for granting time for filing written statement and his request was also allowed. On 11‑7‑1985 a copy of rent application was supplied to the appellants' counsel and case was put off to 16‑7‑1985 for filing written statement. On that day Advocate for the appellant was absent. He neither intimation was sent nor appellant was present till 2‑30 p.m. As such an ex parte order was passed. The contention of the learned counsel that he appeared before the Rent Controller but he was inforad that ex parte order had already been passed cannot be sustained on the simple ground that he did not file any application on that day nor in affidavit it is shown that he did appear and he made any request to the Rent Controller. Not only this but even on the next day i.e. 17‑7‑1985 no application was made for setting aside the ex parte order which contradicts the version of the learned counsel for appellant. He has not explained as to why he failed to make an application for setting aside ex parte order on 17‑7‑1985. From facts and the circumstances it is very clear that appellant and his counsel were not present on the day fixed for filing of written statement. The appellant was afforded full opportunity to contest rent case. On I1‑7‑1985 his application for grant of copy was allowed and an adjournment was also granted. Furthermore, on 11‑7‑1985 copy of application was supplied and date was given as 16‑7‑1985 in the presence of the learned counsel which he has not denied. There is nothing to show that learned counsel for the appellant appeared in time before the Rent Controller on 16‑7‑1985. Mr. Ishtiaq Ali Advocate for the appellant in his affidavit filed on 18‑7‑1985, stated that he informed Peshkar in the morning and also later on he came to know from the Peshkar that ex parts order has already been passed. He has shown in the affidavit that he asked Peshkar to inform the Rent Controller about filing of written statement in late hours which was never filed. On the other hand Ghulam Ali husband of the respondent sworn affidavit on 11‑8‑1985 in which it is stated that neither appellant nor his Advocate came to Court on 16‑7‑1985. Even when an application for setting aside ex parte was filed by the appellant he did not care to file written statement on that day also.

7. I refer to a case of Muhammad Jehangir v. Ch. Muhammad Niazuddin and others reported in 1984 C L C 2114, where it has been held that in case tenant deliberately absenting himself there is nothing wrong in passing ex parte order. In the present case appellant was granted sufficient time as stated above to file written statement but he did not appear. The Rent Controller in these circumstances has no other option but to proceed ex parte as provided under section 19(2) A of the Ordinance. He had no power to rescind such order, therefore, by refusing to set aside, the ex parte order the Rent Controller has acted within his jurisdiction. For the reasons stated above I dismiss the appeal. However, period of 60 days is allowed to the appellant to hand over peaceful and vacant possession to the landlord.

H . B . T . Appeal dismissed.

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