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First Rent Appeal No.302 of 1986, decided on 24th March, 1987.

--O.IX,R.13--Sind Rented Premises Ordinance (XVII of 1979), Ss.14,21(1) & 22--Ejectment proceedings--Ex parte order, setting aside of--Ex parte order was passed without proper service of notice on the tenant--Application filed by tenant for setting aside ex parte order was time-barred by one day, but, having been passed without jurisdiction, time limit, held, would not stand in way of tenant for filing application to seek setting aside such ex parte order Rent Controller being at error in rejecting application of tenant for setting aside ex parte order, Appellant Court accepted appeal of tenant, remanded case to Rent Controller for decision on merits after affording reasonable opportunity to him for filing written statement.

PLD 1979 Kar. 238; P L D 1979 S C 18; 1983 C L C 2219; 1984 C L C 2684; P L D 1979 Kar. 167; P L D 1969 S C 65; P L D 1983 S C 155; P L D 1965 S C 459; P L D 1980 S C 206; 1983 SCMR 10664; , Mashlakhuddin v. Syed Ali Hyder 1982 S C M R 570; Bashir Ahmed v. Shafi and others 1985 S C M R 469 and Mst. Mariam Bai Adam Ali v. Mst. Salma Khatoon P L D 1981 S C 522 ref.

Shaffat Hussain for Appellants.

Abul Khair Ansari for Respondent.

Dates of hearing: 112th and 24th March, 1987.

The appellants have preferred this appeal u/s 21 of the Sind Rented Premises Ordinance, 1979 against the order dated 30-3-1986 passed by the learned Senior Civil' Judge/Controller-IV, Karachi West in the following circumstances:-

The respondent Mrs. Bilquis filed Rent Case No.2449 of 1985 u/s 14 of the Sind Rented Premises Ordinance, 1979 against the appellant Abdul Hameed for possession of rented premises, a shop situated on the ground floor of premises bearing No.II/B/35, Nazimabad, Karachi. Notice of the 4pplication was served by its affixation at the rented premises on account of the premises having been found locked. There was no appearance from the other side. The learned Controller passed ex parte ejectment order on 21-11-1985. The respondent/landlady filed Execution application on 8-1-1986. She was put in possession by a bailiff of the court on 21-1-1986. On 22-1-1986, the appellant by Hameed filed an application u/s 14 and 22 of the Sind Rented Premises Ordinance, 1979 r/w Section 144 C.P.C. before the Controller for setting aside the ex parte order and restoring the possession of the shop to him. On 23-1-1986, the appellant Anjum Hameed filed another application u/s 14 and 22 of Sind Rented Premises Ordinance r/w Order 9 rule 13 and section 151 C.P.C. for setting aside the ex parte order. On 24-2-1986, the appellant Abdul Hameed filed an application u/s 14 and 22 of the Sind Rented Premises Ordinance, read with Order 9 Rule 13 C.P.C. for setting aside the ex parte order. The learned Controller dismissed all the three applications by the impugned order dated 30-3-1986 holding that the appellant Anjum Hameed did not have locus standi to have filed the applications dated 22-1-1986 and 23-1-1986, while the application dated 24-2-1986 filed by the appellant Abdul Hameed was time barred, and even otherwise no case was made out for setting aside ex parte order.

The learned counsel for the appellants has urged that the ex parte order was passed without proper service of notice on the appellants. He has next urged that the ejectment case was filed against a wrong person namely, Abdul Hameed appellant, whereas the actual tenant was the appellant Anjum Hameed as would be evident from the rent receipts and other documents filed in support of his applications before the Controller. He has also urged that the appellant Anjum Hameed was the aggrieved party and he could seek setting aside of the ex parte order. According to him the question of limitation did not operate in respect ,of such order. He has placed reliance on the cases reported in P L D 1979 Kar. 238; P L D 1979 S C 18; and 1983 C L C 2219. He has also made reference to the provisions of Section 29 of the Limitation Act and advanced the argument that the applications could be filed within a reasonable time which extended to three years. He has also contended that the applications made by the appellant Anjum Hameed needed enquiry and should not have been dismissed summarily. He has relied upon the cases cited as 1985 S C M R 469; 1982 S C M R 570 and .P L D 1981 S C 522 in respect of setting aside of ex parte orders. He has also cited the cases reported in 1984 C L C 2684; P L D 1979 Kar. 167; and P L D 1969 S C 65 on the proposition put forth by him that the appellant Anjum Hameed was the aggrieved party to have filed the applications. He has submitted that the appellant Anjum Hameed was dispossessed of the rented premises in a way other than in due course of law and was entitled to restitution of possession and has relied upon a case reported in PLD 1983 S C 155.

On the other hand, the learned counsel for the respondent has contended that the order of ejectment was executed on 21-1-1986 and nothing was left to challenge in court. He has relied upon the case reported in 1982 S C M R 570. He has next urged that provisions of Civil Procedure Code are not applicable to the cases in Rent Restriction Ordinance and he has cited P L D 1965 S C 459; P L D 1980 S C 206 and 1983 S C M R 1064 as the supporting authorities. He has advanced the argument that the learned Controller could not recall the ex parte order passed by him in view of the provisions of clause-2 of Section 19 of the Sind Rented Premises Ordinance, 1979. According to him, there is marked distinction between the cases falling u/s 14 & 15 of the Sind Rented Premises Ordinance and he has made pertinent reference to clause-1 of Section 19 of the Sind Rented Premises Ordinance which provides the procedure for the cases filed under the Ordinance excluding the cases falling u/s 14.

It may be mentioned that the learned counsel for the appellants has cited two cases, one reported in 1982 S C M R 570 and another 1985 S C M R 469 to controvert the argument by the learned counsel that ex parte order passed by the Controller could not be rescinded.

The Rent Case No.2449/85, this appeal has arisen from, was filed u/s 14 of the Sind Rented Premises Ordinance, 1979 on 15-7-1985. It appears from the record that it was filed against the appellant Abdul Hameed alone. Its notice was issued to him on the address of the rented premises for 21-10-1985 and it was returned un-served. However, the learned Controller made the following order on 23-10-1985:-

"Plaintiff's Advocate present. None for the defendant. Notice has been sent by bailiff and by registered post A.D. and none is present. It is 12.30 p.m. The service is held good. Let the matter be fixed for W.S. Put off to 16-11-1985".

The order passed on 6-11-1985 reads as under:-

"Applicant's Advocate present. None for the Opponents. Written statement not filed. Let the Opponent be placed ex parte and affidavit in support of ex parte proof be filed on 12-11-1985".

Affidavit in ex parte proof was filed on 12-11-1985. Arguments were heard on 19-11-1985. Order for eviction was passed on 21-11-1985. Execution application was filed on 8-1-1986. Order was executed on 21-1-1986. The applications u/s 14 & 22 of the Sind Rented Premises Ordinance, one read with section 144 C.P.C., and another read with order 9 Rule 13 C.P.C. were filed by the appellant Anjum Hameed on 22-1-1986 and 23-1-1986 respectively; while the application under sections 14 & 22 of the Sind Rented Premises Ordinance, read with Order 9 Rule 13 C.P.C. was filed by the appellant Abdul Hameed on 22-2-1986. Section 14 of the aforesaid Ordinance relates to the delivery of vacant possession to the landlord in special circumstances mentioned therein and Section 22 of the Ordinance relates to the execution of orders; and the applications thereunder for setting aside ex parte orders and restitution of possession of the rented premises were obviously misconceived. There remains question of setting aside of ex parte order dated 21-11-1985 u/o 9 Rule 13 C.P.C., the appellant Anjum Hameed could not seek setting aside of that order as it had been passed against the appellant Abdul Hameed. Of course the appellant Abdul Hameed could make an application for setting aside the ex parte order on showing sufficient ground in the light of the decision of a Single Bench of this court in a case Mashlakhuddin v. Syed Ali Hyder 1982 S C M R 570 and enlightening decision of the Supreme Court in the case of Bashir Ahmad v. Shafi & others reported in 1985 S C M R 469. It has been indicated above that the ex parte order was passed without proper service of notice on the appellant Abdul Hameed. The learned Controller was at error in rejecting his application for setting aside the ex parte order. Of course, the application made by the appellant Abdul Hameed was time barred by one day but since the order sought to be set aside was passed without jurisdiction, the time limit did not stand in his way and reference may be made to a Single Bench case of this Court Viz: Mst. Marian. Bai Adam Ali v. Mst. Salma Khatoon reported in P L D 1981 S C 522. Accordingly, the order of the learned Controller dated 30-3-1986 is set aside in respect of the application under Order 9 Rule 13 C.P.C. made by the appellant Abdul Hameed and the case is remanded to the Controller for decision on' merits after affording reasonable opportunity to the appellant Abdul Hameed for filing written statement in the circumstances of the case. The appellant Anjum Hameed may move the learned Controller for getting himself impleaded as a party. No order is made for costs in peculiar circumstances of case. The parties shall appear before the learned Controller on 11-4-1987 and they shall be informed by their respective counsel.

H.B.T./A-65/K Appeal allowed/Order accordingly.

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