1986 PLP 2471 (CLC)

Attaullah Khan for Appellant. Muhammad Kazim for Respondents. Date of hearing: 7th November, 1985. This appeal is directed against the order of IIIrd Senior Civil Judge and Rent Controller Karachi, dated 7‑4‑1983 whereby, the learned Rent Controller refused to set aside the ex parte order passed against respondent No. 2 Mistri Nasiruddin and in favour of respondent No. 1 Muhammad Yaqoob. The facts of the case as stated in the judgment of the IIIrd Senior Civil Judge and Rent Controller, Karachi, dated 19‑i1‑1981 are that respondent No. 1 Muhammad Yaqoob filed a Rent Case No. 2286 of 1975 seeking ejectment of respondent No. 2 Mistri Nasiruddin from the disputed premises on the ground of default in payment of rent. The application was allowed by order, dated 22‑8‑1975 but the said respondent No. 2 failed to vacate the premises. Thereupon, the respondent No. 1 filed Execution Application No. 22 of 1975 which was ultimately compromised on 24‑4‑1976 and according to the terms of compromise the respondent No. 2 continued to be tenant of respondent No. 1 in respect of the disputed premises undertaking to clear the arrears of rent in instalments. Subsequent to the compromise reached between the parties respondent No. 2 paid rent for one month and thereafter, he again made default in payment of rent and despite the demand of respondent No. l he refused to pay the rent. The respondent No. 1, therefore, filed two execution applications one after the other but they failed in view of the compromise reached between the parties: Ultimately, he filed third execution application with averment that respondent No.2 has failed in paying the rent since 1‑3‑1976. The respondent No.2 however, 'could not be served by ordinary process and, therefore, he was served through publication of notice in daily Morning News, dated, 24‑4‑1981. As he did not appear on the said date he was made ex parte. Ultimately, after taking into consideration the evidence produced by respondent No.l the learned Rent Controller ordered for eviction of respondent No. 2 by order, dated 19‑11‑1981. When this order was sought to be executed the appellant Mir Zaman Khan appeared on the scene and moved the learned Rent Controller for joining him as a party. The learned Rent Controller allowed his application by his order, dated 18‑i1‑1982 and joined him as a party. While the execution application was still pending the appellant moved another application before the same Court praying for setting aside the ex parte order passed against respondent No.

2. However, as stated above the said application was dismissed by the impugned order, dated 7‑3‑1983. I have heard the arguments of the learned counsel for the parties and have also referred to the relevant orders passed by the learned Rent Controller from time to time. It was contended by the learned counsel for the appellant that the ex parte order was obtained by respondent No.l through fraud and misrepresentation as the appellant is the owner/landlord of the disputed premises and not the respondent No.l. His. another contention was that learned Rent Controller has taken erroneous view of the law inasmuch as he has dismissed the appellant's application on the ground that he has no jurisdiction to set aside the ex parte order. The operative part of the impugned order is as under:‑ "I have heard learned counsel for the parties and find that the provisions of Civil Procedure Code are not applicable in Sind Rented Premises Ordinance, 1979 except section 20(2) of Sind Rented Premises Ordinance 1979. The application is barred under section 19(2) Sind Rented Premises Ordinance, 1979 as after passing of orders Rent Controller has no power to review the same. " No doubt, the learned Rent Controller has erred in holding that his jurisdiction is barred once ex parte order is passed. It may be observed that the language of subsection (2) of section 19 of the Sind Rented Premises Ordinance, 1979 has been examined in several cases and it is held that in view of the words 'it is found' and 'without any reasonable excuse' used in the said subsection the Rent Controller is not prohibited from reviewing his earlier ex parte order if he comes to the conclusion that notice has not been served on the respondent or that he had reasonable excuse for his failure to file his reply. Accordingly, the argument of the learned counsel on the question of jurisdiction of the Rent Controller is unexceptionable. However, on the other hand the learned counsel for the respondent argued that the appellant was not an aggrieved party within the meaning of section 21 of the said 1979 Ordinance and as such he has no locus standi to file this appeal. In reply to this argument the learned counsel for the appellant contended that since the appellant is joined as party in the execution proceedings pending in the Court of learned Rent Controller it could not be argued that he was not aggrieved party and had, therefore, no locus standi to file appeal. It seems, the stand taken by the appellant is that not only, he is in possession of the disputed premises but also he is the owner/landlord of the said premises. Although it is not clear from the order, dated 18‑11‑1982 by which the appellant was joined as party in execution proceedings whether he was served with process requiring him to vacate the disputed premises, yet the said order shows that to was after the bailiff came to his residence for execution of the decree that he applied for joining him as party. Of course, if he has been joined in the execution proceedings it is only with intention to give him opportunity to safeguard his possession if he is really occupying the disputed premises. That by itself provides him no reason to consider himself as an aggrieved party for the purpose of filing appeal against the ex parte order. First of all he was not a party to the proceeding in which ex parte order was passed. There is no iota of evidence to show that he is in possession of the disputed premises. It is yet to be proved by him in course of pending execution proceedings that he is actually occupying the disputed premises. His allegation that the ex parte order has been obtained through fraud and misrepresentation is a question of fact which can be proved only in. civil Court by leading such evidence. The Rent Controller being Tribunal invested with limited jurisdiction has no power to decide the title of the appellant. According to ex parte order it was not the appellant to whom the repeated notices about execution application were issued nor it shows that notices issued to him returned unserved nor does it indicate that the notice was served on him through publication. His plea is that he is the owner/ landlord and the respondent No.l has obtained the ex parte order against the respondent No. 2 through fraud and misrepresentation. There is nothing to show that respondent No.2 has ever remained as tenant of the appellant or that at any stage there existed relationship of landlord and tenant between him and the respondent No.2. The ex pane order which gives background of the entire litigation clearly shows that as a result of ejectment application filed by respondent No.1 against respondent No.2 in respect of the disputed premises, compromise was effected between the said respondents whereby respondent No.2 acknowledged the respondent No.l as his landlord and undertook to pay rent to him. Subsequent to that compromise as respondent No.2 could not keep his promise with regard to payment of rent, execution applications were filed against him one after the other until the application which is still pending was filed against him. Thus, the litigation began in respect of the disputed premises as far back as 1973 but the appellant was nowhere in, sight during the intervening period. Keeping the background of the whole litigation in view it is yet to be proved. by the appellant that he is the owner/landlord of the disputed premises. Until then he cannot be held as an aggrieved party and consequently he has no right to file appeal against the ex parte order. Accordingly, the appeal is dismissed with no order as to costs. H . B . T . Appeal dismissed.