1985 PLP 469 (SCMR)

Date of hearing: 28th November, 1984. NASIM HASAN SHAH, J.‑‑ This appeal, by leave of this Court, is directed against the judgment and order of the Lahore High Court, dated 15‑11‑1974 in Writ Petition No.309 of 1974 The appellant, who is a transferee of an evacuee property, instituted proceedings under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 for the eviction of the respondents Nos. 1‑3 herein. An ex parte order for eviction was passed in his favour on 14‑12‑1970 and the respondents were actually evicted on 16‑12‑1970. Thereafter, they applied for setting aside the ex parte order of ejectment on 12‑1‑1971 and prayed for being put back into possession. The prayer for setting aside the ex parte order was accepted and the said order was set aside and the possession of .the premises was also restored to them vide order of the Rent Controller dated 13‑10‑1973. The appellant filed an appeal against the said order but the appeal was dismissed by the judgment of the Additional District `Judge on 26‑1‑1974. Feeling aggrieved, the appellant invoked the constitutional jurisdiction of the High Court, inter alia, on the ground that the Rent Controller had no inherent power to recall his order dated 14‑12‑1970 and an appeal was only competent against the said order under the terms of the Ordinance. It was further submitted that the Civil Court alone was empowered to order restitution of possession and that this could not be ordered by a Rent Controller. The High Court, however, dismissed the writ petition relying on a Full Bench decision of the same Court in the case of Muhammad Aslam v. Mst. Khurshid Begum PLD 1972 Lah. 603, in which both these contentions had not been accepted. Leave was granted by this Court by its order dated 27‑2‑1975 to consider the correctness of the above decision of the Full Bench especially as one of the learned Judges of the High Court had disagreed and an authoritative decision on the subject was considered to be appropriate. In the meanwhile, the questions for the consideration of which leave to appeal was granted, have been decided in some other cases. As regards the question whether the Rent Controller had the jurisdiction to recall and set aside his ex parte order of ejectment, this Court, in somewhat similar circumstances held in Fazal Muhammad v. Roshan Din etc. 1984 S C M R 1305 that:‑ "If the order was a nullity it had necessarily to be set aside as it could not be acted upon and technically what happened was that the application for eviction was revived and had to be disposed of on merits." In the instant case too it was found that due service was not affected on the respondents and that, therefore, the ex pate order that was passed was a nullity. The dictum Fazal Muhammad's case deals exactly with this situation and it has been observed that where the ex parte order is proved to have been passed without due service from the other side it is a nullity and the order setting aside the order of eviction will not be deemed to be an order in terms of section 13 of the Ordinance. Coming to the other question regarding restitution of possession by a Rent Controller this Court in Muhammad Bashir v. Muhammad Ramzan and others 1979 S C M R 260 held in almost identical circumstances that undoubted the Court, while passing an ejectment order under section 13 of the Ordinance, acts as Rent Controller; however, while executing the order of ejectment, the Rent Controller acts in his capacity as a civil Court and can, therefore, deal with the questions relating to restitution of possession. The exact terms employed were:‑ "When he passed an ejectment order under section 13 of the Ordinance, he acts as a Rent Controller, but when he executes that order, he executes it as a decree of a civil Court. Consequently, in his capacity as a civil Court, he can deal with the restitution of possession also." The result is that there is no force in either of the two contentions raised by the appellant. This appeal is, therefore, dismissed, but as no one has appeared from the opposite side to oppose it, there will be no order as to costs. M.Z.M.??????????????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.