1983 PLP 2411 (CLC)

A petition dated 5th May, 1976 for ejectment of the petitioner from s op No. 2, situated at 12, Lawrence Road, Lahore was filed by the land lady respondent No. 2 before the learned Rent Controller, Lahore on various grounds which petition was resisted by the petitioner.

2. The proceedings on the petition were pending after a remand order by the learned Additional District Judge, Lahore for re‑investigation as to the issue appertaining to bona fide requirement by the landlady res pondent No.

2. The petition was fixed for evidence on 16th November, 1980. The petitioner was present but the landlady absented herself. The learned Rent Controller after repeatedly calling the case near about 3.15 p. rr,. dismissed the petition under Order XVI1, rule 3 of C. P. C. for non,1 production of the evidence.

3. The respondent No. 2 landlady filed an application on 10th February, 1981 accompanied by an application under section 5 of the Limi tation Act for the restoration of the original ejectment petition. This application was resisted by the petitioner. The learned Rent Controller, Lahore dismissed this application ride his order dated 13th December, 1981 observing that the order had been passed under Order XVII, rule 3, C. P: C. therefore, an exception ought to have been taken against that rather than making an application for restoration of the ejectment petition.

4. The landlady respondent No. 2 being aggrieved of the order filed an appeal against this order as well as the order passed on 16th November, 1980 dismissing her main petition for non‑production of the evidence.

5. The learned District Judge, Lahore observed after hearing the arguments of the parties that the order, under Order XVI1, rule 3, C. P. C. was not due since the date had not been fixed at the instance of the land lady for production of the evidence and as she was not present, the . due order ought to have been passed under Order X VII, rule 2, C. P. C. for non‑prosecution of the cause. He was also of the opinion that the applica tion could not have been, disposed of without inviting the parties to adduce evidence in regard to their respective cases. He accepted the appeal vide his order dated 20th March, 1982 and set aside the order ‑ passed on 13th December, 1980 dismissing the application for restoration of the case. He also set aside the order passed on 16th November, 1980 dismissing the main petition for ejectment and remanded the case to the learned Rent Controller, Lahore to proceed with the main ejectment peti tion on merits: The petitioner sought by way of putting an application before the learned District Judge for clarification as to the resultant order since according to him the order had been hazy and at the same time he sought review of the order on the ground that the learned District Judge !ad accepted the case of the respondent landlady without any evidence. That application was taken up by the learned District Judge. He realising he import of the order admitted that for regular hearing but ultimately dismissed the application vide order dated 12th June, 1982 on the ground R hat he lacked the power to review his order in view of Muzafar Ali v. Muhammad Shafi (PLD1981SC94).

6. In this writ petition challenging the validity of the order dated 20th March, 1982 the learned counsel for the petitioner has contended shat after holding that the petition for ejectment could have been disposed of under Order XVII, rule 2 and not under Order XVII, rule 3, C. P. C. because the situation happened to be covered by Order XVII, rule 2, C. P. C. the learned District Judge ought to have remanded the case in application dated 10th February, 1981 for the restoration of the ejectment petition with a direction to the learned Rent Controller to proceed with that application treating the ejectment petition as having been dismissed :n default after giving due opportunity to both the parties to adduce evidence and refute each other's case. It was not open to the learned District Judge in law to have accepted the application without the basis having been furnished by any evidence. In the absence of the landlady having otherwise proved her case it was not competent for the learned District Judge to have set aside the order passed on the ejectment petition on 16th November, 1980. He has further maintained that section 5 of the Limitation Act being not applicable, therefore; decision on that was, necessary before restoring the original ejectment petition. In fact what he means to say is that the onus was upon the landlady to have proved her case that she was coming within time as well as that she had sufficient cause to furnish a justification for the restoration of the original petition.

7. The learned4s counsel appearing for the respondent landlady has conceded as to the procedural requirement but at the same time he has maintained that a case cannot be defeated on mere technicali ties but the Court is to see whether justice in substance has been done or not.

8. In no case the, learned District Judge had jurisdiction to arrive at his final finding without evidence, had the application for the restoration of the petition been remanded with due direction as to framing the issues and inviting the evidence of the parties on the matter in issue since questions of fact were involved in that. as to the major portion of the relief which was being sought then the order would have been in accordance with the procedure or at least the principles evolved out of C. P. C. which are being observed in rent restriction cases. Since this has not been done, therefore, for the sake of regularity regarding the procedure in the matter of disposal of such cases this petition is accepted and the order dated 20th March, 1982 of the learned District Judge is set aside as without lawful authority and of no legal effect and the case is remanded in this petition to the learned Rent Controller with a direction that the learned Rent Controller is to treat the application dated 10th September, 1981 made for the restoration of the ejectment petition as competent and the order passed under Order XVII, rule 3, C. P. C. is to be disregarded being erroneous taking the ejectment petition a saving been dismissed in default under Order XVII, rule

2. So the learned Rent Controller is to proceed with the application dated 10th February, 1981 and frame the issues according to the variance of the parties and after inviting the evidence decide the application resolving the applicability of section 5 of the Limitation Act and the order restoring the ejectment petition is to be treated as Don existent.

9. In the circumstances the parties are left to bear their own costs. However, the learned Rent Controller is further directed to dispose of this case as expeditiously as he finds convenient. K. M. A. Petition accepted,